The Senate has handed down its report into the operation of Commonwealth Freedom of Information laws, and Labor reports ‘nothing to see here’. Transparency warrior Rex Patrick looks at the inquiry’s findings.
‘Nothing to see’ is indeed an accurate reflection of the state of the FOI regime, because that’s how most FOI requests are returned … with nothing.
The majority view expressed in the report by the Greens and the Liberals was that it is a completely broken system, but the Labor view is that it is sitting pretty much where the Government wants it.
Two elections ago
Last week an official from the Office of the Australian Information Commission (OAIC) wrote to me advising of the status of their Information Commissioner (IC) FOI reviews. “We are currently focusing on the case management and finalisation of aged matters, particularly the IC review applications received in 2019 and 2020,” she said.
That’s right, the IC’s FOI team is working hard to deal with reviews lodged three and four years ago, during the term of the Morrison Government. Some of those applications will have been lodged two elections ago.
If you put in an FOI request today on a contemporary government issue you can expect to get a response back by late next month. The Agency decision maker, risk-averse about causing any controversy or even inconvenience for the government of the day, will have redacted anything controversial or that gets to the truth of a matter.
When you appeal the decision to the Information Commissioner, by their own admission it’ll get put in the queue that’s four years long. Sometime in 2027, well after the next election, you might get an access refusal overturned.
This state of affairs makes a mockery of the objectives of the FOI Act, which are to increase public participation in Government processes with a view to promoting better-informed decision-making and increasing scrutiny, discussion, comment and review of the Government’s activities.
The majority view
The Liberals and the Greens, through Senators Paul Scarr and David Shoebridge respectively, combined together to correctly declare that the “Commonwealth FOI system is not fit for purpose”.
“[The system] is costly and cumbersome, and has resulted in years of delays before many FOI applications are finalised.
These delays have undermined public trust in government and must urgently be reversed.
They then went on to make a number of key recommendations.
Apart from an obvious recommendation to increase resources applied to the Information Commissioner’s (IC) office, they expressed the need to reform the entire process.
Where the current system has a first decision and an internal review decision made by the Agency to whom an FOI request is made, they want the internal review decision stage scrapped. They suggest that the Agency spends its resources getting the first decision right.
Where the review process now involves two full merit reviews, an IC review and an Administrative Appeals Tribunal (AAT) review, the committee recommended the IC only conduct a limited review function (ombudsman-like) at the intermediate level, with a full merits review reserved for the AAT (or its replacement, the Administrative Review Tribunal).
They also recommend that the FOI Commissioner not be part of the OAIC, which currently houses the Privacy, FOI and Information Commissioner; rather, he or she should relocate to the Office of the Commonwealth Ombudsman.
Finally, the committee recommend the FOI Act be amended to ensure that a change to a new minister does not impede the right to access documents held by the previous minister. This would prevent the dirt from a controversial minister being swept under the carpet by a cabinet reshuffle.
The Government’s view
The government’s dissenting report was shy of recognising any issues.
Senator Nita Green, representing Labor, spent most of her report throwing blame at the Liberal Party, not accepting the fact that it is Labor that is in Government and it’s their job to get on fixing things. Unfortunately, her recommendations are that we just carry on and don’t panic, but perhaps ponder some changes in due course.
Sub-lieutenant Nita Green followed her orders well. She’ll go far!
But the relevant question to ask is, what will happen now?
The Government and the Judiciary
The first thing to note is that the Committee has done some good work and they put a marker down as to the situation as it exists in 2023 and some solutions to the shambles. But we’re unlikely to see much happen.
The Government will likely shelve the report.
So, the next big day in the big battle for transparency in Australia will now take place on 26 February 2024 in Melbourne.
That’s the date the Full Federal Court has listed the hearing on the appeal of the decision of Justice Wheelahan in Patrick v Australian Information Commissioner. In the original decision, the Court found that two to three-year delays by the Information Commission in processing reviews were unreasonable but not legally unreasonable.
We’ll have to see what the Full Court thinks of that decision. Save the date.
A Secrecy Wolf
Anthony Albanese came to the Government promising greater transparency than what had been occurring under Prime Minister Scott Morrison. The bar he set was a pretty low one.
As someone who did just under 300 FOIs to the Morrison Government and has done 260 to the Albanese government, I’m qualified to say that it’s hard to tell the difference between the two; Albanese hasn’t even tried to exceed Morrison’s low bar.
The one area of contrast is expectation management.
Everyone knew Morrison was a secrecy maniac and that he wasn’t too bothered about being labelled that.
Albanese tries to pretend his government is awash in transparency.
But the truth is, he’s a secrecy wolf wearing transparency sheep’s clothing. That’s worse than being an overt fan of opaqueness.