Chapter 2Key issues
2.1Participants in the inquiry welcomed the opportunity to comment on the Freedom of Information Amendment Bill 2025 (the Bill). Key issues raised in submissions and evidence include:
reviews relating to the Freedom of Information Act 1982 (FOI Act);
objects of the FOI Act;
anonymous and pseudonymous requests;
the 40-hour processing cap for freedom of information (FOI) requests;
the introduction of application fees;
the exemption for Cabinet documents; and
the conditional deliberative processes exemption.
Reviews relating to the FOI Act
2.2A number of submitters expressed the preference to have a full and comprehensive review of the FOI Act.
2.3The Environmental Defenders Office and Environmental Justice Australia submitted that:
…a fulsome and independent review be undertaken of the operation of the Freedom of Information Act 1982 (Cth) to ensure that any reforms are well-considered and better facilitate the Act meeting its important democratic objectives.
2.4The Centre for Public Integrity (CPI) noted there are amendments in the Bill that they consider are directed at issues of cost, delay and abuse of process in a constructive way, including:
Those amendments that would facilitate communications with applicants via electronic means such as email (Schedule 2, Part 1 of the Amendment Bill).
Non-disclosure of certain employee identifying information (Schedule 2, Part 2 of the Amendment Bill), including in relation to the FOI decision-maker’s name. We would note that where the FOI decision-maker’s information is not disclosed, this must not foreclose the possibility of appropriate auditing, disciplinary and training responses where it is found that individuals are consistently making decisions that do not accord with the Act (see Recommendation 4 and the CPI’s Blueprint for Reform in Schedule 1).
Provision of a power to refuse to deal with a request if the agency or Minister is satisfied that the request is vexatious or frivolous, is likely to have the effect of harassing or intimidating or otherwise causing harm to another person or is otherwise an abuse of process, which is then subject to an IC review (Schedule 2 Part 4). This appropriately supplements the existing process of declaring an applicant vexatious or frivolous and contains the safeguard of IC review.
Allowing for extension of time with agreement (Schedule 4, Part 2).
Requiring agencies to continue to assess and make decisions where there is a deemed refusal request (because of the expiration of time limits) (Schedule 4, Part 3).
The power to remit IC review applications to the decision-maker with directions for further consideration (Schedule 5, Part 1).
Streamlining IC review, including by allowing an IC review to be completed by agreement (Schedule 5, Part 2), and allowing for third parties to be party to an IC review by application only (Schedule 5, Part 3).
Schedule 8, which provides a process by which documents of an outgoing minister can still be accessed, in a way that remains true to the spirit of the Federal Court’s decision in Patrick v Attorney-General (Cth) [2024] FCA 268, in that these documents are still accessible under the FOI regime.
2.5CPI also agreed that the FOI Act ‘requires amendment, as it has not had significant attention paid to it since the last major reforms that were introduced in 2010’. The Australia Institute agreed that the FOI system is broken.
2.6However, CPI’s primary recommendation was ‘for an independent and comprehensive review’, noting that other reviews, such as the Hawke, Shergold and Thodey reviews, also recommended commissioning further reviews.
Departmental response
2.7The AGD noted that the ‘government had considered previous reviews and inquiries that have been undertaken over the past 13 years and which have commented on the freedom of information system’. Ms Celeste Moran, First Assistant Secretary, Identity and Information Division at AGD, stated:
There was the OAIC's Review of charges under the Freedom of Information Act 1982 that happened in 2012. In 2013 there was the Hawke review into the Freedom of Information Act and the Australian Information Commissioner Act. There was the 2023 Senate legal and constitutional affairs committee inquiry into the operation of the Commonwealth FOI system. There was the Shergold review, Learning from failure, in 2015. In 2019 there was the Independent review of the Australian Public Service, led by Mr David Thodey. There was the final report of the Royal Commission into the Robodebt Scheme. Also in 2023, there was the Australian Public Service Integrity Taskforce report, which was also taken into account.
2.8Ms Dianne Orr, Assistant Secretary, Information Law Branch at AGD, added:
…the bill implements a number of the recommendations from the Hawke review which concerned, among other things, how to make the system more effective. The bill implements eight recommendations from that review in full and four recommendations in part. As has been previously canvassed, the bill also amends the deliberative processes exemption. This draws on the 2015 Shergold review and the 2019 Thodey review, which both explored the impact that the FOI Act has on the provision of frank and fearless advice and raised the need for potential reform of a deliberative process exemption.
Objects of the FOI Act
2.9At present, the FOI Act sets out the objects of the Act in section 3, as follows:
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
2.10The Bill proposes to amend section 3 of the FOI Act, including by inserting new subsection 3(2) into the Act, which concludes with:
while, at the same time, providing safeguards to ensure the protection of essential private interests and the proper and effective operation of government.
2.11According to the Explanatory Memorandum (EM) to the Bill, the new provision would clarify the Parliament’s intention:
The addition at the end of the subsection is intended to provide an explicit recognition of countervailing public interest in protection of private and business information as well as the proper administration of government.
2.12The Attorney-General’s Department (AGD) noted that the objects clause informs interpretation of the FOI Act and submitted that proposed new subsection 3(2) would better balance the objects in subsection 3(1) of the Act:
The FOI Act reflects that a balance must be struck between making information held by government available to the public so that there can be increased public participation leading to better informed decision-making and increased scrutiny and review of the government’s activities, with preserving confidentiality in certain circumstances, as provided for in the form of exemptions to the general right of access to information (set out in Part IV of the FOI Act).
The amendments in Part 1 of Schedule 1 of the FOI Bill would change the objects clause (section 3) in the FOI Act to ensure it reflects this balancing. The wording of the amendments draws from the objects provision of the FOI Act that existed prior to the 2010 Reforms.
2.13The Department of Home Affairs (Home Affairs) supported the proposed amendment to subsection 3(2), which, it argued, would:
…more clearly outline the objects of the FOI Act to promote government transparency…while providing safeguards where needed. For example, to protect government operations and the privacy of members of the community.
2.14The Bill also proposes to amend the objects of the FOI Act to reflect how agencies should approach the Information Publication Scheme. The Bill proposes to change the requirement for agencies to ‘publish the information’ to ‘proactively publish information’. In relation to these changes, the Queensland Office of the Information Commissioner stated that it ‘supports strengthened proactive release provisions in the FOI Act’.
2.15The Environmental Defenders Office and Environmental Justice Australia noted they ‘particularly support the inclusion of ‘proactive’ with respect to the release of information in the objects to encourage agencies to publish information without need for an FOI request’ and that this measure has ‘a sound policy basis’.
2.16Mr Jayden Spudvilas-Powell, who advised the committee that he has engaged extensively with the FOI process in his personal capacity, noted that the proposed changes to the objects clause was a ‘positive step’ but that ‘cultural change requires a statutory duty on agency heads and performance reporting’.
2.17Some stakeholders acknowledged the role of the objects clause in the interpretation of the FOI Act, however, they argued that proposed new subsection 3(2) would undermine the objectives of the Act, by, for example, failing to strike the appropriate balance between transparency and certain safeguards.
2.18The Law Council of Australia (Law Council) recognised that safeguarding private and business information is a legitimate basis for refusal or redaction of documents in certain circumstances. However, the Law Council did not support the proposed provision on the ground that the new language could ‘dilute the focus of public participation and scrutiny of government activities’.
2.19Further, the Law Council warned that the vagueness of the phrase ‘proper and effective operation of government’ could create uncertainty for decision-makers and applicants. In the absence of clear guidance, the Law Council argued there is a risk that this phrase could be interpreted in a manner that unduly restricts access to information, contrary to the underlying purpose of the FOI Act.
2.20The OAIC noted their role in undertaking a range of activities to uplift agencies’ FOI capabilities, including developing tools, updating guidance and providing education for FOI practitioners.
2.21In response to a question on notice as to whether CPI had any evidence to back up its suggestion that the 2010 amendments to the objects clause have – in practice – led to a better FOI system and better government, CPI did not provide evidence but reiterated its concerns about the proposed changes.
Anonymous and pseudonymous requests
2.22Section 15 of the FOI Act sets out provisions regarding requests for access, including subsection 15(2) that deals with the requirements for making a request. The Bill would amend this subsection, by inserting new paragraphs 15(2)(ba) and 15(2)(bb):
(ba) include the full name of the applicant; and
(bb) if the applicant is making the request on behalf of another:
(i) state that the request is being made on behalf of another person; and
(ii) include the full name of the other person;
2.23The EM explains that this amendment would prevent an FOI request being made anonymously or under a pseudonym, and require a person to declare when making a FOI request on behalf of a third party. The EM states that this change would allow a number of other provisions of the FOI Act to operate more effectively and achieve multiple objectives, such as:
ensuring vexatious applicant declarations are effective and unable to be circumvented via the use of a pseudonym;
ensuring personal or private information is only disclosed in appropriate circumstances;
ensuring agencies and Ministers can appropriately determine the national security or personal safety implications of granting access to documents or
information; and
protecting the safety and wellbeing of agency officers and employees by discouraging applicants from engaging in inappropriate or threatening behaviour when making a request.
2.24In her second reading speech, the Attorney-General, the Hon Michelle Rowland MP, articulated the necessity for the amendments, warning that anonymous FOI requests risk undermining the integrity of the FOI framework. Further, allowing such requests creates ‘risk vectors that could be exploited by offshore actors seeking government-held information for potentially nefarious purposes’.
2.25Home Affairs confirmed that it receives numerous anonymous access requests relating to counter-terrorism, cybersecurity and national security matters. The department recognised existing protections in the FOI Act (exemptions that prevent the release of national security material) but contended:
…there is utility in having a discretionary ability to seek identity information as a strategy to mitigate risks related to the release of this sensitive information.
2.26The AGD explained that the proposed amendments to section 15 would assist in protecting individuals’ privacy and ensure that personal information is only disclosed in appropriate circumstances. The AGD also highlighted how the amendments would help agencies to better manage vexatious and abusive applicants by requiring all applicants to identify themselves:
While there is an ability under the FOI Act to have an applicant declared vexatious, this provision is of limited effectiveness in the context where requests can be made anonymously, which makes it difficult to prove one person is making the vexatious requests. Further, as the outcome of a vexatious applicant declaration impacts a person’s ability to seek access to government-held information in an ongoing way (rather than in the context of an individual request), the threshold for establishing an applicant to be vexatious is very high and is resource intensive for an agency to pursue.
2.27Further, AGD stated that the measure would also:
… protect the safety and wellbeing of agency officers by discouraging applicants from engaging in inappropriate or threatening behaviour when making a request; and enable agencies to know who they are dealing with, which may go some way to deterring inappropriate use of AI or by foreign actors.
2.28AGD also noted:
…other Australian and international information access frameworks require provision of a name, including NSW, Tasmania, the Northern Territory and the United Kingdom.
2.29Home Affairs welcomed the proposed changes, indicating that the reform would allow it to better protect personal information from persons who should not have access to it, for example, an ex-partner in a domestic violence situation. Referring to its submission to the 2023 Senate Legal and Constitutional Affairs References Committee Inquiry into the operation of Commonwealth Freedom of Information (FOI) laws, Home Affairs reiterated:
Sensitive personal information is a valuable target for those seeking to use it for an improper purpose such as identity fraud or foreign interference. Imposing requirements for identity verification when lodging an FOI request was noted as a means to mitigate this risk.
2.30Further, Home Affairs anticipated that the amendments would result in greater efficiencies for the department overall.
2.31Services Australia explained that ‘FOI requests are sometimes used as a vehicle to perpetuate a targeted campaign of harassment against Agency employees’. Further:
The Bill recognises the handling of these types of requests may have the effect of harassing, intimidating or otherwise causing harm, including psychosocial harm to FOI officers processing these types of requests, or persons whose personal information is the subject of the FOI request.
The Agency has received requests that included harassing and intimidating behaviour, threats of violence and stalking of officers and their families. The impact of this behaviour on FOI officers processing these requests can be prolonged and significant.
2.32The APSC observed that allowing applicants to make anonymous or pseudonymous FOI requests can embolden them to exhibit harmful behaviours to agency staff:
Currently, the FOI Act allows applicants to make anonymous or pseudonymous FOI requests. This enables applicants to hide their identity; make threats of violence; emboldens them to exhibit harassing and intimidating behaviour towards staff, and avoid the application of the vexatious applicant provisions.
2.33The APSC further noted:
…there is no current ability in the FOI framework for agencies to refuse to process applications on work health and safety grounds, even when there is abuse, belittling, threats of violence, stalking or foul language.
…
The only means presently available in the FOI framework to prevent an applicant from harassing or intimidating staff is through the agency obtaining a vexatious applicant declaration from the Office of the Australian Information Commissioner. The current vexatious applicant provisions require the agency to make an application in relation to “a person” which an agency is unable to do when they cannot prove that abusive or repeated anonymous applications have come from the same person.
2.34Recognising that everyone, including public servants are entitled to be treated with dignity and respect in their place of work, the APSC advised it supports the proposed changes to section 15 of the FOI Act:
The Commission understands that anti-social behaviour on the part of FOI applicants creates a foreseeable risk to the psychological safety of agency staff and enlivens a duty under work health and safety laws to protect the psychological safety of staff and eliminate risks so far as reasonably practicable.
2.35The Community and Public Sector Union (CPSU) held a similar view, discussing the importance of the proposed reforms to assist FOI teams to ‘manage workloads more safely and effectively’. While noting some of the concerns raised about banning anonymous and pseudonymous FOI applications, the CPSU submitted:
…strengthening applicant identity requirements specifically for any personal information requests and allowing FOI staff discretion to seek further details before processing would assist FOI teams.
2.36The CPSU also raised the issues faced by FOI teams in dealing with vexatious applications, noting that under the current legislation, only individuals (rather than requests) can be declared vexatious. As explained in the EM to the Bill, requiring all applicants to identify themselves will support this process and ensure vexatious declarations cannot be circumvented via the use of a pseudonym or an anonymous request.
2.37While some submitters raised concerns regarding a lack of evidence of AI bots or foreign actors making FOI requests, the AGD noted that ‘the operating environment had changed significantly since the Act was first enacted’. MsMoran elaborated:
It’s basic things, from email to the use of the internet. There are things like web forms and autogenerators.What we’re seeing in the system and have been advised of is that some agencies are receiving FOI requests developed with the assistance of artificial intelligence.We heard from the Office of the Australian Information Commissioner that they have released some guidance to agencies in relation to requests that are AI generated or might be coming from AI bots, if you like. What we understand is that these requests are often voluminous, they can be difficult to understand, and at times they require multiple attempts at consultation with the applicant to understand what the applicant is seeking. I think there is nothing prohibiting people using AI to assist them, but, at the moment, the practice that we have heard about is at times inhibiting the way applicants are making those requests, and it's quite challenging to understand the scope of what's being requested.
The other thing is that the bill is trying to have one eye on the future. Right now there is some evidence of AI in the system, but of course AI is developing rapidly. I think what we have seen in international jurisdictions is clear examples, particularly in the US, where AI tools have been used to generate thousands of requests at once, including to election workers being inundated with FOI requests in the 2020 presidential election. In that situation, it prompted a change in the law in Washington state to allow a refusal on the basis that the request was believed to have been generated by a bot. So there is international practice demonstrating the potential for AI in the system.
2.38Paragraph 3.22-3.23 of the OAIC’s official FOI guidelines states:
The rise in the use of Artificial Intelligence (AI) brings with it the potential for FOI requests to be made without human intervention.
…
To reduce the possibility of ‘bot’ generated FOI requests, agencies may consider publishing an online FOI request form that includes technology that can identify whether the user is a robot… However, as noted at [3.21] above, the FOI Act does not require any particular form to be completed to make a valid request, or for people to identify themselves. Agencies should be open to receiving FOI requests from people in ways other than by using an online form.
2.39The Australian Information Commissioner, Ms Elizabeth Tydd, emphasised:
We are operating within the digital age and our adoption of technology is generating an unprecedented volume of information. This creates challenges for agencies in managing information, including the practical aspects of requests for information, for a community conversant with immediate access to information.
2.40Further, Ms Tydd stated:
In our guidelines, we have tried to assist agencies with a very recent update in addressing what is potentially a new threat.
2.41The AGD said that it had consulted with the national intelligence community in the development of the Bill:
We were provided some advice in relation to that, which, in broad terms—and I think the Department of Home Affairs provided some advice on this earlier today—is that it is not uncommon for foreign actors to seek to use legitimate government processes to gather information and put that together to paint a particular picture and use it against the national interests of Australia.
2.42The AGD noted that the information provided was of a ‘classified nature’ and that there is no statutory requirement for agencies to record examples of FOI requests that may have been AI generated or from foreign actors.
2.43The OAIC’s Annual Report for 2023-24 records that eSafety saw a 2,288 per cent increase in FOI requests in a single year and states:
eSafety explains that ‘many of these requests were made as part of an “end eSafety” campaign intended to divert the agency’s resources from its other operations, a fact that was acknowledged on social media’. The majority of these requests were made using a website that was established following litigation involving eSafety. eSafety expects the number of requests to remain elevated into the 2024–25 financial year.
2.44While CPI called for a full and comprehensive review of FOI, they acknowledged that this ‘should be informed by changes in technology and AI, not just because these developments pose threats to the operation of the system, but also in ways that can facilitate access to government’.
2.45The Australian Conservation Foundation also accepted that ‘significant volumes of automatically generated requests could clog the system and prevent ‘genuine’ requests from being considered’.
Impact on whistleblowers
2.46While stakeholders acknowledged the impact that vexatious applicants can have on agency officials, some raised concerns about restricting anonymous or pseudonymous requests in certain circumstances.
2.47Concerns were raised by a number of transparency and human rights organisations, who cautioned against the proposed amendments as they could impede a range of individuals from making FOI requests. The Human Rights Law Centre, for example, argued that the proposed amendments could prevent ‘whistleblowers, civil society organisations, lawyers and other key actors in the integrity landscape from accessing crucial government information’.
2.48The Australian Lawyers Alliance (ALA) suggested that political staffers from non-government parties may also wish to remain anonymous when making FOI requests. According to the ALA, this would be to ensure that their applications are treated without regard to party-political considerations.[48]
2.49These concerns were shared by several media organisations, including the Media, Entertainment and Arts Alliance (MEAA) and Free TV Australia. These organisations warned against the ‘chilling effect’ the proposed amendments might have on whistleblowers, who use anonymous FOI requests as a mechanism to reveal wrongdoing, misconduct, or maladministration.
2.50Similarly, the Alliance for Journalists’ Freedom (Alliance) explained that ‘people inside government who might want to expose wrongdoing will think twice if they have to identify themselves’. The Alliance opposed the proposed changes to section 15 of the Act, stating that ‘even the perception that someone has sought sensitive information can have professional or personal consequences’.
2.51Expanding on these concerns, the Australian Broadcasting Corporation contended that the impact of the proposed changes would be ‘contrary to the aim of producing high-quality journalism in the public interest’.
2.52The Australian Council of Social Service (ACOSS) argued that the Royal Commission into Robodebt revealed that Robodebt arose and continued ‘in large part because of the poor culture within government and bureaucracies at the time’, noting:
Robodebt show[ed] the importance of maintaining anonymity for lodging FOI requests. It is highly unlikely that a whistleblower in government who has not had their concerns properly dealt with via formal internal channels would seek to release information through FOI if their name [were] to be attached to it. If the government does not want a repeat of Robodebt, then it must maintain anonymous FOIs to support exposure of maladministration.
2.53CPI noted that it had been involved in consultations on further proposed government reforms to clarify and strengthen protections for whistleblowers.
Departmental response
2.54The AGD noted concerns that the Bill might impact individuals’ ability to seek information under the FOI Act. In relation to whistleblowers, the department suggested that stronger protections in the Public Interest Disclosure Act 2013 (the PID Act) might ease concerns about identification requirements in the FOI Act:
The department acknowledges the need for strong protections for whistleblowers and is currently supporting the Attorney-General to undertake public consultation on draft reforms to the [PID Act].
Under the PID Act, the threshold for a disclosure of information that would start an investigation process is intentionally low. This is so that public officials do not need to gather information or conduct their own investigations. Individual action outside of the PID Act processes may prejudice any future investigation under the PID Act or by another entity, including the National Anti-Corruption Commission or Australian Federal Police.
2.55In answers to questions on notice, the AGD reiterated the importance of the identification provisions proposed in the Bill:
to ensure personal or private information is only disclosed in appropriate circumstances;
to ensure vexatious applicant declarations are effective and unable to be circumvented via the use of a pseudonym;
to protect the safety and wellbeing of agency officers, by discouraging inappropriate or threatening behaviours when making a request; and
to enable agencies to know who with whom they are dealing, which may deter foreign actors or the inappropriate use of artificial intelligence.
2.56Following the public hearing on 17 October 2025, the Attorney-General introduced amendments to the Bill in the House of Representatives. These amendments included changes to proposed new paragraph 15(2)(bb) (in bold):
(ba) include the full name of the applicant; and
(bb) if the applicant is making the request on behalf of another person, and the applicant is seeking to access a document containing personal information about the other person or information concerning the business, commercial or financial affairs of the other person:
(i)state that the request is being made on behalf of another person; and
(ii)include the full name of the other person;
2.57In a supplementary EM, the government advised that this amendment is intended to ‘moderate the circumstances under which identifying information must be provided by an applicant when making a request’ and to reflect:
…there may be situations where an applicant may wish or need to obtain non-personal information anonymously through another applicant – for example, a community group being able to put in a request on behalf of their constituent, an investigative journalist or whistleblowers. Retaining the requirement for the applicant to provide a name supports a number of policy purposes, including to ensure vexatious applicant declarations are effective and unable to be circumvented through use of a pseudonym.
40-hour processing cap
2.58Presently, section 24 of the FOI Act allows agencies and ministers to refuse an access request if a ‘practical refusal reason’ exists. Subsection 24AA(1) of the FOI Act provides that a practical refusal reason exists in relation to a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i) in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii) in the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister’s functions;
(b) the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
2.59The Bill would effectively change this provision to include an additional reason for a practical refusal: that the work involved in processing the request ‘is likely to involve a total number of hours of work that exceeds the ‘processing cap’ applicable under subsection (1A)’.
2.60Proposed subsection 24AA(1A) would define the processing cap as:
(a) 40 hours of work; or
(b) if the regulations prescribe a higher number of hours of work that is applicable—the higher number of hours of work prescribed.
2.61According to the EM, these amendments would provide an agency or minister with discretion to refuse to process a request if it would take more than the prescribed amount of time to process. The EM explains that the cap of 40 hours was determined on the basis that it represents:
…a reasonable period to allocate to processing an individual FOI request, constituting just over one week’s ordinary hours of work for a full-time employee under Australia’s National Employment Standards as at the time of these amendments.
2.62The Attorney-General advised that these amendments would reflect ‘an appropriate balance between an applicant's access rights and taxpayers' resources in providing such access.’ Further, this change would implement a recommendation of the Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 by Dr Allan Hawke AC (the 2013 Hawke review).
2.63According to the AGD, the proposed amendments are needed due to the increasing time and effort being expended by agencies to process certain FOI requests. The AGD noted that some agencies have been required to process requests that have taken over 200 hours to action.
2.64The AGD further advised that in the 2024-25 financial year alone, agencies and Ministers received 43,456 FOI requests. This represents a 25 per cent increase in requests compared to what was made in 2023-24. It was also revealed that in 2023-2024, public servants spent more than one million hours processing FOI requests.
Impact of a processing cap
2.65While the majority of stakeholders acknowledged the need for greater efficiencies in the FOI scheme, some expressed concerns about how the processing cap would work in practice and its impact on applicants.
2.66The Centre for Public Integrity (CPI) generally supported the introduction of a processing cap but raised concerns that, under the current proposal, the FOI Act would retain the subjective practical refusal provisions set out in subsection 24AA(1). For greater clarity, the CPI suggested that the subjective test in subsection 24AA(1) be removed in favour of the discretionary 40-hour processing cap.
2.67Likewise, the Justice and Equity Centre tentatively supported the introduction of the processing cap, but suggested the amendments initially be implemented for a trial period followed by a review. This would ensure that the changes are appropriate, before commencing on a longer-term basis in the Act.
2.68Some submitters objected to the processing cap entirely. For example, the Law Council pointed out that ‘many critical FOI requests, such as substantive policy inquiries/reviews, may inherently require more than 40 hours to process’. In this regard, the Law Council conveyed that legal practitioners have raised concerns about the unintended consequences that could flow from the processing cap, including:
…for applicants seeking access to complex, voluminous, or historical records—particularly in matters involving systemic issues or significant public interest.
2.69A similar perspective was shared by Mr Paul Farrell, a barrister and former investigative journalist, who submitted that a processing cap would ‘lock out’ many legitimate FOI requests. Mr Farrell explained that, in his experience, a single internal government audit could amount to hundreds of pages of documents and under the proposed changes, could simply be refused. The OpenAustralia Foundation opposed the cap on similar grounds, citing concerns that the cap could allow agencies to simply refuse to process complex requests, regardless of their legitimacy.
2.70Ms Emily Mitchell, an experienced investigative researcher, provided the committee with examples of complex investigations that she has previously worked on, aided by the FOI process, and that would have exceeded a 40-hour processing time:
Many of my investigations would have exceeded 40 hours of processing time. These include investigations regarding:
a. The hundreds of incidents in the immigration detention network reported to Comcare;
b. The place of origin of 180 Indonesian minors identified in the Australian Human Rights Commission report; and
c. The inadequate monitoring by [the Australian Maritime Safety Authority] of the Montara oil disaster.
These investigations were important, in the public interest, and attracted significant media attention at the time.
2.71Drawing on her experience, Ms Mitchell emphasised that ‘a deep investigation is sometimes required to truly examine or explore an issue and to truly develop an evidence base’. Ms Mitchell warned that, if the changes proposed in the Bill had been in place, the investigations she worked on may not have occurred.
2.72Some submitters queried how a processing cap could be applied consistently across departments and agencies. The Law Council made the point that in practice, decisions to refuse a request based on the processing cap would be ‘heavily influenced by the efficiency, resourcing, and technological capability of individual agencies.’ The Law Council explained:
Agencies with well-developed information management systems and experienced FOI teams may be better placed to process large or complex requests within the cap, whereas less-resourced agencies may be more likely to rely on the cap as a basis for practical refusal. This could result in inconsistent access outcomes across government, potentially undermining the objectives of the FOI Act.
Departmental response
2.73The AGD drew the committee’s attention to the Office of the Australian Information Commissioner (OAIC) submission to the 2013 Hawke Review, which commented:
[I]t is generally accepted that government agencies should not bear an unlimited obligation to provide access under the FOI Act to all non-exempt information.
2.74In response to the concerns about legitimate FOI requests being refused if they exceed the processing cap, the AGD emphasised that the cap would be discretionary: it would ‘remain open to agencies or Ministers to respond to requests that would take more than 40 hours (or a greater amount as determined in regulations)’.
2.75The AGD further advised that the proposed changes would align Australia with ‘like-minded jurisdictions’ such as the United Kingdom (UK) and Scotland. The AGD explained that these jurisdictions allow entities to refuse a request if the cost of compliance would exceed a set limit, ‘generally £600 across both jurisdictions – which equates to a ‘processing cap’ of up to 40 hours.’
Access to personal information outside of the FOI process
2.76In 2023, the Legal and Constitutional Affairs References Committee inquired into the operation of Commonwealth freedom of information laws and recommended that:
…there be a whole of government campaign to encourage decision-making agencies to explore opportunities to create pathways to release personal information directly to the individuals to which the information pertains without requiring applicants to use the FOI regime.
2.77Several submitters agreed that the government should consider reforms to allow individuals to request personal information independent of the FOI system. ACOSS expressed the view that this would ‘free up’ FOI teams to deal with other legitimate access requests. Legal experts, Dr Maria O’Sullivan and Dr Yee-Fui Ng, agreed:
…personal information could be released directly to the people to which the information pertains, without requiring applicants to use the FOI regime. This would clearly take some resourcing pressure off public servants.
2.78A number of departments and agencies supported this approach, which they considered would ease some of the burden on the FOI system and enable it to work more effectively. According to the OAIC, in 2024-25, 74 per cent of all FOI requests were for personal information, consistent with data from the previous two years. Home Affairs advised that, in its experience, these requests are ‘increasingly complex and sensitive’:
Average pages assessed per request is approximately 175 pages, and a human decision maker is required to carefully and manually consider sensitive personal information prior to release. Time is required to identify all of the relevant documents potentially in scope of a request and to then confirm whether in scope and releasable in the circumstances.[81]
2.79At the committee’s hearing, Home Affairs indicated that it would support an approach where the Privacy Act 1988 (the Privacy Act), rather than the FOI Act, was the primary means for people to obtain access to their personal information.
Application fees
2.80The Bill proposes to insert section 93C into the FOI Act to enable the Freedom of Information (Charges) Regulations 2019 (the Regulations) to specify fees to be charged for FOI requests, internal reviews and Information Commissioner (IC) reviews.
2.81The EM notes proposed subsection 93C(3) which prohibits applying a fee for documents containing an applicant’s own personal information or that of someone on whose behalf the application is made:
This amendment implements the Government’s intent that a person should not have to pay an application fee to seek access to their own personal information. This is consistent with the operation of charges under section 29 of the Act and section 7 of the FOI Charges Regulations, which provides an exception to charges in respect of a request for, or the provision of, access to a document that contains personal information of the applicant. This is also consistent with the operation of [Australian Privacy Principle, APP] 12 of the Privacy Act, which requires an APP entity (as defined in the Privacy Act) to provide access to an individual to personal information held about that individual, if so requested.
2.82Additionally, proposed section 93C would provide for the waiver or remittance of fees where the applicant is experiencing prescribed circumstances of financial hardship:
(4) Without limiting paragraph (2)(c), the regulations must make provision in relation to the waiver or remission (in whole or part), in prescribed circumstances of financial hardship, of a fee that would otherwise be payable by an applicant making a request under section 15, or an application under section 54B or 54N.
2.83The Attorney-General explained these proposed amendments have been introduced with the intention to:
…aid in deterring frivolous requests, and ensure agency resources are not unduly diverted from processing genuine requests, particularly requests for personal information which account for the vast majority of overall requests.
2.84Services Australia supported the expressed objective of the fee proposal, adding that, in its experience:
…FOI applicants may pursue requests under the FOI Act in a manner that is frivolous, vexatious, otherwise not made in good faith or is designed to disrupt Agency operations’.
2.85In addition to deterring frivolous and vexatious requests, the OAIC anticipated that an application fee would, ultimately, reduce the number of non-personal FOI requests made to agencies and Ministers and result in a decline in IC review applications.The impact of this, according to the AGD, would ‘go some way to addressing the significant and increasing cost to Government of processing FOI requests’.
2.86The Queensland Office of the Information Commissioner noted that the ‘existing fee system in Queensland has been effective in avoiding the risks of anonymous applications’.
Financial impact of application fees
2.87While witnesses and submitters supported the proposal to prohibit the charging of fees for access to personal information, some objections were raised about the introduction of fees for other access requests and reviews.
2.88The Australian Press Council (APC), for example, emphasised the importance of access to information as a ‘fundamental democratic right and which should not be contingent on financial means’. The APC advised that the introduction of fees would pose a ‘significant barrier for freelance journalists, smaller outlets, academics, and civil society groups’ seeking government information. The APC warned this could create a ‘two-tier system’ where larger media organisations can pursue FOI applications and reviews, but community and independent journalists cannot.
2.89The ALA voiced a similar concern, submitting that the proposed fees would disproportionately impact certain applicants, including smaller media outlets, whistleblowers, academics and private individuals:
We observe that hostile foreign governments, big business and other well-resourced applicants will have no problems in meeting the $50 fees contemplated (but not yet published) and therefore such a fee will have no deterrent effect on these applications. However, they will significantly impair the ability of small media outlets, whistleblowers, academics and private citizens to obtain the information to which they would otherwise be entitled. Although a fee set at around $50 can appear nominal, to a small media outlet, which may need to make tens or even hundreds of requests per year, these costs quickly become significant.
2.90Dr O’Sullivan and Dr Ng agreed that ‘whilst a modest application fee of, say $30 to $50 may not represent a significant hurdle for larger news organisations…it would represent a significant hurdle for smaller organisations or those with lower budgets, as well as freelance reporters’. They gave the example of a reporter undertaking an investigative journalism piece who would likely need to make a significant number of FOI requests to explore an issue. For this applicant, ‘even a small application fee will become a significant hurdle’.
2.91Professor Peter Greste, Executive Director of the Alliance, recognised the problems that vexatious FOI applications can cause but considered that the introduction of application fees would not resolve this issue. Rather, he suggested that ‘there are much better ways of managing that through all sorts of digital processes that can filter out those kinds of vexatious applications’.
2.92Ms Skye Predavec, Researcher at the Australia Institute, described the Bill as ‘a solution looking for a problem’. She stated that the FOI system is broken but indicated that the introduction of application fees is not a real solution to the problems identified in the system.
2.93The CPI acknowledged that, under the current proposal, fee waivers would be available to those people experiencing genuine financial hardship. However, the CPI cautioned that, in practice, such exemptions can be difficult to negotiate.Expanding on this point, Mr Jack Davenport argued that applying for a fee waiver places ‘yet another burden’ on applicants seeking information under the FOI process.
2.94To address some concerns, several submitters proposed their own amendments to the measures in the Bill relating to fees, for example:
the Australian Conservation Foundation suggested requiring a nominal application fee for initial FOI requests only;
Transparency International Australia suggested there should be an exemption for journalists, researchers and civil society groups, noting that the FOI process can be essential to their work and an important tool of accountability; and
several other submitters urged the imposition of a nominal fee only to prevent automated requests and dissuade vexatious applicants from abusing the FOI process.
Departmental response
2.95In relation to concerns about proposed section 93C of the FOI Act, the AGD reiterated that personal information, which forms the majority of FOI requests, would not be subject to an application fee. The department further clarified that, consistent with the objects of the FOI Act, the provision is ‘not intended to deter applicants seeking access to government-held information’ and is only intended to ‘deter inappropriate, vexatious or repeat requests which are an abuse of process, and will go some way to addressing the significant and increasing cost to Government of processing FOI requests’.
2.96The AGD affirmed that all states and territories with the exception of the Australian Capital Territory have application fees for FOI requests, ranging from $30.00 to $57.65. The AGD noted that the fee would be set by the regulations and as ‘a legislative instrument, the regulations would be subject to disallowance by Parliament’. AGD stated that the regulations ‘setting the fees will be informed by further consultation, analysis and costings’ and are intended to be ‘broadly consistent’ with application fees in other Australian jurisdictions.
Provisions in delegated legislation
2.97The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has raised concerns about fee provisions being placed in delegated legislation. In particular, the Scrutiny of Bills Committee noted that the Bill does not cap the maximum fee amount or provide any guidance as to how the fee will be calculated.
2.98Dr O’Sullivan and Dr Ng voiced similar concerns and argued that the Regulations could specify an unrealistic amount (for example, $1000 per application). The Law Council considered that the FOI Act should contain safeguards to ensure that ‘fees remain modest, fair and reasonable across the board’.
2.99The AGD submitted that the Regulations would remain subject to parliamentary scrutiny and disallowance by the parliament. It noted that fee provisions have been placed in the delegated legislation to allow for those arrangements to more easily be updated into the future.
Exemption for Cabinet documents
2.100Part IV of the FOI Act sets out exemptions from application of the Act, including in Division 2 where section 34 which prevents Cabinet documents from being released under FOI processes:
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.
(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
2.101The Bill proposes to amend section 34 of the FOI Act, by repealing paragraphs 34(1)(a) and 34(1)(c) and inserting in their place:
(a) both of the following are satisfied:
(i) it has been prepared by a Minister, on a Minister’s behalf or by an agency;
(ii) a substantial purpose for its preparation was submission for consideration by the Cabinet;
…
(c) a substantial purpose for its preparation was to brief a Minister in relation to issues to be considered by the Cabinet[.]
2.102According to the EM, the proposed amendments would ensure that Cabinet confidentiality and the principle of collective ministerial responsibility is ‘appropriately protected’. To do this, proposed new subparagraph 34(1)(a)(ii) and paragraph 34(1)(c) would replace the ‘dominant purpose’ test with a ‘substantial purpose’ test, which would recognise:
…documents may be created for multiple purposes and may disclose sensitive information about Cabinet matters even if they were not created for the ‘dominant purpose’ of Cabinet consideration, or briefing a Minister on a document to be submitted for Cabinet consideration.
2.103The EM states that replacing the dominant purpose test with the substantial purpose test would require that ‘the Cabinet purpose must still be of substance, real and not insignificant, trivial or nominal, even if it is not the dominant purpose’. As such, the exemption would continue to apply to documents with a ‘genuine Cabinet purpose’.
The ‘substantial purpose’ test
2.104Numerous submitters and witnesses queried the replacement of the ‘dominant purpose’ test in the Cabinet documents exemption. They argued that the proposed change would broaden the Cabinet exemption and shield a larger volume of documents from public scrutiny.
2.105Mr Andrew Podger AO, former Australian Public Service Commissioner, argued that the proposal in the Bill would ‘inevitably [and considerably] extend exemptions’. Further, the proposal is contrary to the 2010 reforms and the 2013 Hawke Review’:
…the conditional exemptions of Cabinet documents and ‘deliberative’ documents set out in the 2010 legislation were explicitly intended to be narrowly defined. The changes now proposed would reverse that.
2.106Similarly, the Law Council submitted that the ‘substantial purpose’ test is a ‘lower requirement’ than the ‘dominant purpose’ test. In its view, the proposed change would ‘[enlarge] the range of documents captured as exempted Cabinet documents’, primarily by encompassing what are effectively preparatory documents linked to Cabinet deliberations.
2.107The ALA agreed with this assessment and provided examples of documents that could be captured under a ‘substantial purpose’ test:
…an agency brief on a potential policy, or even consultant reports commissioned for Cabinet - materials that are disclosed under current FOI once their dominant purpose is shown not to be of Cabinet consideration. This provision will have the effect of reducing access to substantial numbers of documents, narrowing the public scrutiny of government; it is therefore a disproportionate means of achieving its stated aim.
2.108The ANU Law Reform and Social Justice Research Hub (ANU LRSJ Research Hub) illustrated the argument, as shown in Figure 2.1.
Figure 2.1Impact of proposed amendments to section 34 of the FOI Act
Source: ANU LRSJ Research Hub, Submission 20, p. 3.
2.109Considering the impact of these changes, the ANU LRSJ Research Hub concluded that the proposed amendments to paragraphs 34(1)(a) and 34(1)(c) of the FOI Act are ‘unnecessary, disproportionate, and contrary to the stated objects of the Act’.
2.110Some stakeholders supported the FOI related observations and recommendations from the Royal Commission into the Robodebt Scheme and noted that the Bill contains proposals that do not align with the findings and recommendations of Commissioner Catherine Holmes AC SC. The Grata Fund added that Commissioner Holmes considered that section 34 of the FOI Act should be repealed entirely.
2.111Other submitters questioned whether replacing the ‘dominant purpose’ test with the ‘substantial purpose’ test might lead to legal uncertainty and challenge. The OAIC, for example, stated that ‘the expanded threshold may lead to legal challenges to clarify interpretation and application given it will enable decision-makers to refuse access to documents that are of significant interest to the public’. Professor John McMillan AO, a former Australian Information Commissioner, cautioned that the cost to government of dealing with FOI disputes would likely increase, particularly in the early years of the proposed changes.
2.112Dr O’Sullivan and Dr Ng voiced concerns about proposals in the Bill being rendered unconstitutionality based on Australia’s implied freedom of political communication. They endorsed comments made by constitutional law expert, Professor Luke Beck of Monash University, who warned:
Any law that reduces the ability of people to engage in discussion on political or government matters has to be proportionate to legitimate purpose…And if it’s not, then the legislation will be invalid.
2.113The AGD maintained that proposed changes to section 34 of the FOI Act reflect the practical operation of the Cabinet process, including that the development of Cabinet documents may involve:
…agencies or ministerial offices preparing or commissioning documents for Cabinet consideration before a Minister has formally proposed that the related matter be considered in Cabinet.
Security classification of documents
2.114The FOI Bill would also make clear that the presence or absence of any security classification or other feature identifying a document as a Cabinet document is not sufficient in itself to determine whether the document is exempt under subsections 34(1), (2) or (3).
2.115The AGD noted:
This responds to an observation of the Royal Commissioner in her report of the Royal Commission into the Robodebt Scheme, noting that the Government articulated in its response to the Commissioner’s report its reasons for not agreeing to the repeal of section 34.
Departmental response
2.116The AGD submitted that all Australian jurisdictions provide an exemption for certain Cabinet records and decisions and highlighted that there is considerable variation on how these jurisdictions address ‘the issue of the ‘purpose’ for which a document is created’.
2.117The AGD noted that the Cabinet exemption was applied in one per cent of decisions. Further:
The FOI Bill amends the operation of the Cabinet exemption to strike an adequate balance between protecting information that is central to Cabinet confidentiality with the right to access information.
Public interest conditional exemptions – deliberative processes
2.118Part IV of the FOI Act also sets out public interest conditional exemptions (Division 3), one of which is an exemption for documents whose release would disclose ‘deliberative matter’. Section 47C of the Act provides:
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
2.119Section 11A of the FOI Act makes clear that access must generally be given to a conditionally exempt document unless it would be contrary to the public interest:
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
2.120Section 11B sets out a list of factors for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). This list contains factors favouring access and irrelevant factors.
2.121The Bill would amend section 11B of the FOI Act to insert non-exhaustive factors against giving access, specifically in relation to the deliberative process exemption in section 47C of the Act:
(3A) If the document is conditionally exempt under section 47C (deliberative processes), factors that are against giving access to the document in the public interest include whether giving access to the document would, or could reasonably be expected to, have any of the following effects (whether in a particular case or generally):
(a) prejudice the frank or timely discussion of matters or exchange of opinions between participants in deliberative processes of government for the purposes of consultation or deliberation in the course of, or for the purposes of, those processes;
(b) prejudice the frank or timely provision of advice to or by an agency or Minister, or the consideration of that advice after it is provided;
(c) prejudice the orderly and effective conduct of a government decision-making process.
2.122The AGD stated that in 2023-24 the deliberative processes exemption was applied in six per cent of decisions.
2.123The EM sets out reasons underpinning the need for a strong deliberative processes exemption, asfound in multiple reviews and reports:
The 2013 Hawke Review noted that the absence of a clear indication of harm that the exception is designed to protect results in the exemption being subject to differing interpretations and difficult to apply. A number of other reviews also note the importance of a strong deliberative processes exemption for the effective operation of Government (Shergold Review 2015, Thodey Review 2019 and the APS Integrity Taskforce Report 2023). The proposed amendments seek to ensure an appropriate balance in weighing the public interest in favour of access, such as Australians being informed of the processes of their government and its agencies on the one hand, against the public interest against access, such as prejudice to the effective working of government and its agencies on the other.
2.124The AGD expressly noted a finding from the Shergold review that ‘the FOI Act should be rebalanced so that frank advice can be confidential’. The APSC also noted that in the 2015 Learning from Failure report, Professor Peter Shergold AC observed:
…the Commonwealth FOI laws now present a significant barrier to frank written advice. The Commonwealth laws have had the unintended consequence of constraining the content, form and mode of advice presented to ministers…the consequences include a patchy record of decision-making and an increased likelihood of decisions being made based on incomplete or poorly argued information. This can ultimately only be detrimental to good governance and the public interest.
2.125The APSC agreed:
…there is a need to ensure that genuine deliberative processes, including frank expressions of analysis, assessment and recommendations, can occur and be documented as intended – promoting stewardship and integrity. If advice is not being fully written down, the objective of transparency is itself subverted.
2.126The APSC submitted that, at present, section 47C of the FOI Act makes it hard for public servants to do their duty and the consequences of avoiding written advice about serious risks have been illustrated in the Robodebt and Home Insulation Royal Commission reports:
The weight given to different factors in assessing the public interest in relation to deliberative material has changed and narrowed over time. This makes it hard for a public servant to be confident that the material and recommendations they are working on will be exempt from release while the policy development process is still live. FOI requests are now routinely made about work that is underway or current. This inhibits public servants sharing material in writing with colleagues in other relevant agencies or their own agency, or with Ministers and their offices. Policy decisions by Governments are often complex, in that they involve trade-offs and the design of packages to support affected parties. Releasing material that is under active consideration by government under FOI can impede proper government consideration of policy and can lead to options being prematurely ruled out.
Public interest considerations
2.127Some submitters queried the insertion of proposed subsection 11B(3A) into the FOI Act. The Law Council stated that the provisions could significantly expand reliance upon the deliberative processes exemption, which, it argued, would be ’contrary to the original design of the relevant sections of the Act’. Mr Podger shared this view:
In the case of ‘deliberative’ documents, the legislation as amended in 2010 sets out a list of ‘Factors favouring access’ and a list of ‘Irrelevant factors’ to ensure exemption on public interest grounds is narrowly defined. Adding in a list of ‘Factors against giving access’ as the Bill proposes would allow agencies to greatly extend exemptions, particularly as the proposed factors include such broad considerations as ‘Prejudice the orderly and effective conduct of a government decision-making process’.
2.128Other submitters raised concerns about the breadth and uncertainty in proposed paragraphs 11B(3A)(a)-(c). The ALA, for example, argued that phrases such as ‘frank and timely’ and ‘orderly and effective’ are ‘too broad, vague and promote a culture of secrecy’. Its submission noted that there is no clear guidance on what threshold of prejudice is required, or a quantitative test for ‘timely’ or ‘orderly’.
2.129ACOSS similarly argued that broad phrases such as ‘prejudice to frank or timely advice to an agency or Minister’ and ‘prejudice the orderly and effective conduct of a government decision-making process’ could be interpreted to ‘stop the release of any number of government documents’.
2.130The Whistleblower Justice Fund and Transparency Warrior highlighted an existing duty in section 10 of the Public Service Act 1999 that requires public servants, among other things, to provide the Government with advice that is frank, honest, timely and based on the best available evidence. They argued that ‘there is no scope for officials to depart [from this duty]’, however:
…despite the law not permitting public servants to back off on their advice, the Government wants to deny the public access to information it should be entitled to see; advice being given to ministers that will, by its very nature, affect citizen’s lives. In effect the proposed amendment would likely serve to screen from public scrutiny unprofessional, politically compromised, ill-considered or just plain shoddy advice and work by public servants who under the law should do better. Against the backdrop of the recent experience of the Robodebt scandal and other public administration disasters, this is not something the Parliament should countenance.
Departmental response
2.131The AGD reiterated that the proposed provisions relating to Division 3 of Part IV of the FOI Act are intended to provide greater legislative clarity around the harm the deliberative processes exemption is designed to protect and to ensure an appropriate balance in weighing the public interest favour of access. The department’s submission highlighted that this approach is consistent with comparable jurisdictions:
…other Westminster jurisdictions, including the United Kingdom and New Zealand, recognise similar factors as those proposed to be inserted into the FOI Act as relevant considerations in assessing the public interest in disclosure.
2.132The AGD specifically rejected the argument put forward by the Whistleblower Justice Fund and Transparency Warrior:
The fundamental obligations on APS officials to serve the Government, the Parliament and the Australian public does not necessarily mean that everything produced by the APS is appropriate for public release at a particular point in time. This includes obligations under the Public Service Act 1999, which contains the APS Values and APS Code of Conduct, which require public servants to provide Government with advice that is frank, timely and based on the best available evidence. Existing caselaw and regulatory guidance recognises the relevance of these types of considerations, although note they should be approached cautiously in accordance with sections 3 and 11B of the FOI Act following the 2010 Reforms.
Official documents of a minister
2.133The Justice and Equity Centre found these amendments to be ‘overly complex’ and ‘difficult to follow’. Similarly, the Grata Fund noted that ‘the proposed amendments will be unworkable in practice, frustrate the objects of the Act, and create significant difficulties for both applicants and ministers’.
2.134Other submitters, such as the CPI, supported the measures relating to official documents of a minister, stating:
Schedule 8, which provides a process by which documents of an outgoing minister can still be accessed, in a way that remains true to the spirit of the Federal Court’s decision in Patrick v Attorney-General (Cth) [2024] FCA 268, in that these documents are still accessible under the FOI regime.
2.135MEAA also stated that ‘this is a positive reform’, although it understood that this is already the law as a result of Patrick v Attorney-General (Cth) [2024] FCA 268 (the Patrick decision).
Departmental response
2.136The AGD noted that the Patrick decision:
…has raised complex issues in respect of requests made to Ministers and the established convention that deliberative documents of a previous government are not provided to an incoming government.
2.137The AGD further explained that the amendments in Schedule 8 of the Bill would:
…provide a mechanism to ensure that active FOI requests made to a Minister continue to be processed if that Minister leaves office. An outgoing Minister who forms a reasonable belief that they will cease to hold the relevant office may, at their own discretion, forward an FOI request to another Minister or to an agency. Where a Minister does not forward the request prior to leaving office, the request is taken to have been forwarded to the default agency.
Committee view
2.138The Freedom of Information Amendment Bill 2025 seeks to improve the operation of the FOI framework. The committee notes that there have been multiple calls for reform, including from the Legal and Constitutional Affairs References Committee, and commends the government for introducing the Bill and pre-emptively proposing amendments to certain provisions in the Bill as a result of this inquiry.
2.139The committee recognises that the FOI system is under immense pressure and acknowledges that there are many views on how best to approach the inefficiencies and other issues that are plaguing the system. The committee also recognises that the emergence of new technologies and the changing operating environment mean that the FOI system is being challenged and is vulnerable to exploitation in ways that were difficult to conceive at the time the FOI Act was first enacted. The costs are growing substantially year on year – the cost to taxpayers of administering the FOI system, the cost to the public of public servants being routinely diverted from their core work to process FOI requests, and the cost to staff dedicated to working within the FOI system who face significant pressures as seen from the evidence received by the committee.
2.140The committee accepts the AGD’s evidence that the Bill will continue to promote accountable and effective government, while making changes to ensure the ongoing viability of the FOI system.
2.141The committee notes, however, that it may be necessary for the government to consider further reform of the FOI system. The committee agrees, for example, that access to personal information might be more appropriately managed under privacy processes, which would also enhance the FOI system efficiencies proposed in the Bill. The committee urges the government to consider an alternative mechanism for individuals to access personal information as part of proposed reforms to the Privacy Act 1988, rather than as freedom of information requests under the FOI Act.
2.142The committee recommends that the Senate pass the Bill.
Senator Jana Stewart
Chair