From cabinet secrecy to "factors against" access, the FOI amendment bill risks undoing gains won under earlier reforms.
The Explanatory Memorandum for the government's Freedom of Information Amendment Bill 2025 claims that it implements or responds to certain recommendations from previous reviews and inquiries, citing in particular the late Allan Hawke's 2013 review of the legislation. Maybe some of the proposed rats and mice changes relate to Hawkie's recommendations, but the bill overall goes in exactly the opposite direction to that he proposed, which was aimed at building on the reforms John Faulkner introduced in 2009-10.
Faulkner's reforms included abolishing conclusive certificates to stop abuses by ministers, abolishing certain application fees, and creating the Office of the Australian Information Commissioner. The exemption of cabinet documents was made stricter by limiting it to documents created 'for the dominant purpose' of being for cabinet consideration and not allowing automatic exemption of attachments to submissions or purely factual information; moreover, the exemption was conditional and could be over-ridden on public interest grounds.
Conditional exemption was introduced for documents containing 'deliberative' material to address concerns by some senior public servants, but the Explanatory Memorandum in 2009 emphasised that this exemption was to be interpreted narrowly, with 'Factors favouring access' set out in the legislation along with 'Irrelevant factors' that must not be used to restrict access.
Hawke endorsed these conditional exemptions, noting that they represented very small percentages of FOI requests by 2013. He also encouraged Mark Dreyfus to go further towards transparency by having Australia join the Open Government Partnership (which Dreyfus did, in early 2013).
In claiming that the Faulkner reforms had 'triggered a cultural change across the Australian Public Service', Hawke sadly exaggerated the situation, although he also said, 'there is still some way to go'. To that end, he developed an FOI Better Practice Guide, and recommended a more comprehensive review of FOI laws to address the complexity that had developed over time from piecemeal reforms, with a view to a complete rewrite in plain language 'that is readily accessible and easily understood'.
The bill now before the parliament goes in the opposite direction to that pursued by Faulkner and Hawke. It would seriously erode access in important respects and make the legislation even more, not less, complicated and difficult to understand.
The conditional exemption of cabinet documents would relate to those where 'a substantial purpose for its preparation was submission for consideration by the cabinet', replacing the current 'dominant purpose' clause.
Instead of having only 'Factors favouring access' and 'Irrelevant factors' narrowing the conditional exemption of 'deliberative' documents, a new list of 'factors against giving access' would be added. The factors against giving access to a 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..
This last provision really is the final straw. It could be used to refuse access to almost any document.
There has, for years, been nonsense spoken by senior public servants about the adverse impact of FOI on 'frank and fearless advice'. Faulkner's inclusion of conditional exemption of 'deliberative' material was meant to resolve any legitimate concerns in this respect, even though no data was ever presented to show that decisions by the courts to allow access to documents had adversely affected the provision of 'frank and fearless' or caused genuine dilemmas within the APS.
No evidence has now been given about any dulling effects the Faulkner legislation has had on advising. Indeed, transparency should make public servants more scrupulous in seeing that what they are saying is sound.
My own experience has been that little courage is needed when offering advice on policy issues; ministers are rarely upset by advice advocating policies they do not agree with. Such advice is soon set aside as work proceeds on options the government feels more comfortable with.
Where courage is needed is on issues of legality and propriety: advice on grants consistent with selection criteria, performance information to be included in annual reports, answers to parliamentary questions, and giving access under FOI to personally embarrassing documents such as entertainment expenses receipts. Or, as in the case of robodebt, telling the minister something is illegal.
It is not FOI that inhibits frank and fearless advice; far more important is the fact that unwelcome advice can attract career penalties and welcome advice can attract career rewards. Look at robodebt again.
The new auditor-general, Caralee McLeish, spoke recently about the importance of transparency in the public sector, highlighting the costs associated with a lack of transparency:
"A lack of transparency means it's harder for people to understand government activity, to obtain information, to make important decisions and to participate in improving public life."
"It weakens accountability in a system that does lack other accountability mechanisms" such as market competition.
She noted the very different culture she found in Australia compared to New Zealand, expressing surprise about the approach she saw here, for example, in the classification of documents and answers to parliamentary questions. She urged Australian agencies to address longstanding issues on compliance and record-keeping.
The wide acceptance in New Zealand of the importance of transparency even extends to the release of Cabinet documents within weeks of consideration. The robodebt royal commission and the Coaldrake report in Queensland recommended that approach. Given our culture, however, such an approach here would lead to cabinet documents being prepared primarily for such public consumption, not for careful deliberation by the cabinet of policy options and associated advantages, disadvantages and impacts. Accordingly, the Albanese government's rejection of the royal commission's stance was justified.
However, a shift in the APS culture towards that which exists in New Zealand is way overdue. A proactive approach to publishing much more information would reduce a lot of the administrative burden of FOI requests.
Most importantly, a firmer direction from the APS commissioner is needed, requiring records to be kept. The government agreed to the royal commission's recommendation that the APSC develop standards for documenting important decisions and discussions. Still, the APSC has only issued some guidance based on the new APS value of 'stewardship'. What is needed is a legal direction under the Public Service Act relating to the APS value of 'accountability', but, sadly, the commissioner last year claimed that, because of the FOI Act, 'we can't tell everyone to change and put your advice in writing'. On the contrary, a firm legal direction would strengthen resistance to political pressures to limit written records and to avoid transparency.
And adopting the New Zealand approach to secretary appointments, which involves a much stronger role for the public service commissioner and firm limits on political involvement, would ensure a more appropriate system of rewards and penalties for senior public servants.
What is not needed is an amendment to the FOI Act that would reinforce the current APS culture.