Federal Freedom of Information Laws Enhance Government Secrecy

The federal freedom of information (FOI) regime is ostensibly about providing Australian citizens with an avenue to obtain information in the possession of government, with the recognition that the public has a right to access such information.

The Freedom of Information Act 1982 (Cth) (the Act) governs a system that provides access to most government agency information, with provisions as to when it can be refused, as well as a requirement that requests have a prompt turnaround.

However, like many other aspects of how the federal Coalition has been steering the ship over recent years, its administering of the FOI regime has come under increased scrutiny.

Issues were raised in late 2019 around the way Home Affairs had been managing its freedom of information requests.

While more recently, the Senate inquiry into press freedom recommended that the government work “to promote a culture of transparency” that aligns with the Act, as it was noted it tends to side-step requirements and takes a go-slow approach to the process.

“A secretive mentality”

“The federal FOI regime was written by bureaucrats to protect themselves, ministers and the government – either side of politics – from the obligation to release information,” outlined Civil Liberties Australia (CLA) president Bill Rowlings.

“It is in fact an FFI – freedom from information – scheme,” the former journalist told Sydney Criminal Lawyers.

“Contrast it with the US position, where basically all information is public, unless the government declares it not to be.”

Under the Obama administration, the US adopted an open government data policy, which sees access to key information available to the public to promote economic growth, while the 2009 launched Data.Gov site permits direct access to US government-generated information.

As one of its main functions, the Office of the Australian Information Commissioner (OAIC) provides oversight to this nation’s FOI regime. However, since 2013, successive Coalition governments have gradually been stripping the funding of the independent agency.

“A positive approach to the value of information being available publicly is what’s missing in Australia,” Rowlings continued. He added that instead the Australian government and bureaucracy are operating under a veil of secrecy.

Closed door affairs

During the 2019 Senate press freedom inquiry hearings, it was found that over the financial year 2018-19, 56 percent of all non-personal FOI requests made to the Department of Home Affairs were not completed during the stated timeframe.

The OAIC launched an investigation into the department’s failure to process more than half its requests, while Home Affairs secretary Mike Pezzullo asserted that he wouldn’t be improving the system as the funds could be better spent on priority areas, like cybersecurity and counterterrorism.

“The Home Affairs-Pezzullo problem is indicative of contempt for the rule of law, and particularly for citizens’ rights,” Rowlings said in relation to the way the Morrison government is operating overall.

“It’s not up to Pezzullo to decide which laws he likes and will obey, and which he will not obey.”

Released in January this year, the OAIC report into Home Affairs found that over the past four financial years, the department had failed to provide over 50 percent of all non-personal FOI requests within the required time.

The opaque bubble

The federal Coalition’s reluctance to operate in a transparent manner isn’t confined to freedom of information.

It’s apparent in its pursuit of closed court whistleblower prosecutions, the 2019 AFP raids on journalists, and its refusal to establish an independent anti-corruption watchdog.

PM Scott Morrison promised to create a federal ICAC in late 2018, however close to three years later that pledge hasn’t been fulfilled. The government begrudgingly released legislation last year seeking to establish such a watchdog, but it’s proposed model was widely derided as having no teeth.

Over the last two years, the Australian National Audit Office has released two reports, which reveal that at the same time it was promising to create an anti-corruption body, the government was also distributing public money to Coalition-held electorates to fund projects to garner voter support.

These pork barrelling scandals reveal some substantial reasons as to why the Coalition may not want a federal ICAC peering over its shoulder, or more transparency around freedom of information.

“The government uses FOI to hide information which citizens should have,” Rowlings made clear. “And ministers use draconian security and police laws to prosecute people, like journalists, whose job is to expose government and administration excesses.”

The long-term advocate for the upholding of civil liberties warns that if the nation is going to vote out the Morrison government in the upcoming election, it should obtain a pre-vote guarantee from federal Labor that it will do its utmost to restore the integrity and accountability of government.

“The Australian people are starting to realise this is no way to run a country,” Rowlings concluded, “particularly during a serious, worldwide health emergency, which will last for years, possibly decades.”

Images: Scott Morrison 2014 by Kristy Robinson / Commonwealth of Australia is licenced under CC BY-SA 4.0. “IMG_4186_Michael_Pezzullo” by Crawford Australian Leadership Forum is licensed under CC BY 2.0. “The Hon Peter Dutton MP, Minister for Immigration and Border Protection, at Parliament House, Canberra” by Department of Immigration and Border Protection is licensed under CC BY 3.0 AU.