When looking at the state of play in freedom of information (FOI) laws in Australia, a scene from season two of Utopia is evergreen. Rhonda (Kitty Flanagan) presents Nat (Celia Pacquola) with an FOI request, and lays down the law on how to deal with it:
You simply reply, ‘We reject this application on the following grounds: firstly, the number of documents requested is far too voluminous. Secondly, sourcing said documents would constitute an unreasonable burden on the office in terms of time and resources.
“Rhonda, have you actually read the request?”
“No.”
“Has the minister?”
“I wouldn’t have thought so.”
“Am I missing something?”
“Clearly!”
FOI laws are critical to news organisations being able to publish information about government agencies and politicians that would otherwise never see the light of day, and time and energy is dedicated to scouring government departments for scoops to FOI — the acronym itself having become a verb in newsrooms.
Some of the biggest stories broken this year came off the back of FOIs, including details of the deaths of Kumanjayi Walker and Clare Nowland at the hands of police, the Darwin Port lease, and the revelation that ethnic communities were overrepresented in Victoria’s COVID fines.
Despite that, Australia’s FOI laws, governed federally by the Freedom of Information Act 1982, and later also by the Office of the Australian Information Commissioner (OAIC), have become less and less efficient in providing the information it says Australians have a right to. Earlier this year, Crikey brought you REDACTED, an eight-part series showcasing how the broken FOI system stops the flow of information. Veteran political journalist Laurie Oakes once described the system as “a sick joke, marked by delays, obstruction and a presumption against releasing documents”.
But journalists around the country work diligently to bring you information. They found out that top NSW police officers covered up the tasering of 95-year-old Nowland in a nursing home, with documents obtained under FOI revealing more than half of a draft statement had been cut after review by senior officers to omit any mention of a taser being deployed, as well as Nowland holding a knife.
They also found out that the inquest into the death of Walker after he was shot by former officer Zachary Rolfe, which has been running for over a year, has cost the Northern Territory government more than $3 million.
And Crikey revealed exclusively that in 2022, someone sent Scott Morrison cannabis.
Although the year featured some wins, there were also a number of losses. Film critic Simon Miraudo told Crikey about trying to get a review report from the Australian Classification Board. His request was promptly rejected, but then the findings were released a week later. Miraudo said his inquiries related to successive governments sitting on the report for three years before it was suddenly released.
The Tasmanian Inquirer’s Bob Burton shared with Crikey his failures to get the Tasmanian government to release modelling on its political donations bill from earlier this year. Only heavily redacted documents saw the light of day.
A Senate inquiry into the FOI system released its findings earlier this week, and found the current regime is “not functioning as intended”, resulting in “years of delays before many FOI applications are finalised”. It found the system as a whole is crippled by under-resourcing and cultural problems within the public service that result in sometimes comical delays.
Prime Minister Anthony Albanese promoted transparency and accountability as a significant part of his campaign platform — indeed Labor’s 2021 national platform said a Labor government would “make government open and accountable”, and “strengthen freedom of information laws and foster compliance throughout the government”.
But Labor rejected the majority report’s findings, supported by both the Liberals and Greens, as “just another attempt by the Liberal Party to abolish the Office of the Australian Information Commissioner”. The dissenting report said the majority report did “not properly acknowledge the impact of the former Liberal government’s decision to defund the OAIC on the backlog of FOI matters.”
Geoffrey Watson SC is director at the Centre for Public Integrity, and told Crikey the problems raised by the Senate inquiry were bipartisan: “Labor had done nothing but whinge under 11 long years of the Coalition, [and] repeatedly promised that it would do something about it. What you have found in the report is that the majority found the system was in fact broken, and a lot of that breakage was done under the Coalition.”
Watson, who gave evidence to the inquiry, said: “The inquiry was conducted in a very fair fashion by people who were legally qualified. Unfortunately, it’s become like a political beachball — to kick at each other for no reason.
“I was horrified to see the dissenting report by Labor, seeing the strong language they used in opposition. It seems Labor has [refused] to solve the problem about which it was bleating in the run-up to the last election. It seems they’ve lost interest in transparency.”
He said this was a feature of governments of all stripes: “It’s good to see the Coalition have picked up an interest in transparency because they certainly didn’t display it under the last government.”
Of the report’s recommendations, Watson said if implemented they “would go a long way towards fixing a broken system”, adding that the FOI Act as it was constructed was “as good as anywhere in the world”, but that the system’s failures came from application rather than statutory construction.
“It’s just not being applied — not applying time limits, and not applying a presumption in favour of disclosure.”
Why do governments freeze up on transparency? Readers, we want to hear from you — especially while our comments are closed because of our website upgrade. Send us your thoughts on this article to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
