Below is Crikey’s submission to the Legal and Constitutional Affairs References Committee’s inquiry into the operation of Commonwealth freedom of information (FOI) laws. This submission was made alongside our REDACTED series. Read the introduction and find the full series here.
As a small independent media outlet long concerned with government transparency and accountability, Crikey welcomes the opportunity to make a submission to the committee’s inquiry into the operation of Commonwealth freedom of information (FOI) laws.
Australia’s FOI laws allow newsrooms to inform readers of matters in the public interest, as well as members of the public to access information outside the parameters of newsgathering should they choose to do so.
For the news organisations that can afford to dedicate ample time and resources to peppering government agencies with enquiries tuned to narrowly defined parameters — and later managing their progress — the system can extract information so consequential that in some cases ministers are left with no choice but to resign. Reporters can use FOI requests to force government figures into answering follow-up questions. They can also be used to request modelling for major spending decisions, to obtain context and communique on ministerial decisions, or to simply follow up on something mentioned briefly during question time or Senate estimates.
Even with the significant issues that are the subject of the upcoming Senate inquiry, the information journalists have revealed using the FOI system has been hugely consequential in informing readers of government decisions.
Via an FOI request made by the ABC, Australians learnt the taxpayer-funded Future Fund had invested some $3 million in an Adani-owned company funding a rail link between the controversial Carmichael coal mine and the Great Barrier Reef.
Despite Home Affairs spending thousands of public dollars fighting FOI requests for documents, Australians learnt the full details of Peter Dutton’s decision to allow two au pairs to stay in the country.
Australians learnt, via an FOI request lodged by The Sydney Morning Herald, that then-health minister Greg Hunt refused a formal meeting with Pfizer’s top executives about the coronavirus vaccine while other countries were on track to sign deals for millions of doses.
Most recently revealed under FOI by Guardian Australia was the explosive letter sent from the ACT Director of Public Prosecutions Shane Drumgold to the territory’s police chief alleging officers engaged in a “very clear campaign” to pressure him not to prosecute the alleged rape of Brittany Higgins.
Australia could once proudly claim to be a pioneer when it comes to FOI legislation, decades ahead of other Westminster-style parliaments. The Freedom of Information Act was passed in 1982 and its original spirit — including acknowledging the public’s right to access official information — has been described as “quite admirable, even inspiring” by prominent integrity advocate and barrister Geoffrey Watson SC. The Australian government acknowledges that information is a “valuable and powerful resource” that is managed for public purposes and that access to this “national resource” should be prompt and at the lowest reasonable cost. But the current reality of navigating the FOI system as a journalist in this country does not reflect these stated aspirations.
When The New York Times arrived in Australia, its Sydney bureau chief Damien Cave — who had worked in dozens of countries, from Mexico to Iraq — couldn’t believe how the government “doesn’t feel any obligation to the public” to explain its actions. “Secrecy is the default setting,” Cave told Crikey, describing Australia’s government. “What needs to change is for governments to start moving towards seeing transparency as the default.”
In our REDACTED series on Australia’s broken FOI system, journalists and editors from across the country described pursuing requests as like “squeezing blood from a stone”, expressing sheer exasperation at the obstructionist tactics often deployed against them, described invariably as administrative torture so unfathomable as to be undemocratic. Many journalists describe lodging FOI requests only to have them rejected outright, delayed, accepted at a prohibitive cost no news outlet could justify, or returned to them so heavily redacted that the endeavour was rendered pointless.
As Greens Senator David Shoebridge, who introduced the motion to establish the inquiry, told Crikey: “It’s freedom of information only for the bloody-minded, the well-resourced, or the fixated.”
But this culture of, at worst, obfuscation and, at best, cumbersome and under-resourced bureaucracy doesn’t just impact journalists. In fact, as Crikey’s REDACTED series emphasises, “what separates freedom of information laws from other mechanisms of political accountability, like Senate estimates or press conferences, is that it is just as accessible to a member of the public” — or at least, it should be.
The Australia Institute’s Democracy & Accountability Program director Bill Browne told Crikey that one of the surprising findings of the organisation’s review of the FOI system was how many individuals were using requests for private matters like their visa applications. Beyond that, “at its best, you do see people unearthing not just information that’s of personal interest, but details of how government operates that have broader implications and are of general interest”.
A well-designed and resourced FOI system unimpeded by political interference or underfunding is a key opportunity for government to restore the public’s trust.
Unfortunately, the resignation of the Commonwealth FOI commissioner less than a fifth of the way through his appointment — because he didn’t have the powers to make necessary “changes” to this system — speaks to the enormity of the task at hand. In September 2022, the Centre for Public Integrity said the number of FOI requests responded to late (past the statutory 30-day period) had doubled in the decade to 2022 to 22.5%.
Addressing the delays in the review of FOI appeals, increasing the resources to respond to FOI requests, and potentially creating a statutory time frame for the completion of reviews are all worthy considerations for this inquiry. As is examining the issue of outsourcing. Resources aside, the widespread delays and refusals are not purely procedural but often political. When The Age applied for documents about a $1 billion contract to a company run by the then-federal Liberal Party treasurer, the results were repeatedly delayed for six months until a series of heavily redacted documents were supplied. Home Affairs fought for three years to prevent releasing documents about its immigration detention centre operating manual.
Australia is the only Five Eyes member country that has no explicit constitutional framework for protecting free expression or a free press, and is the only of these countries, other than the UK, that makes intelligence agencies immune from FOI requests. Australia currently lags at 27th on the Press Freedom Index. For the government to truly honour the guiding ethos of its FOI legislation, it must forgo its sense of entitlement to secrecy and respect the public’s entitlement to transparency, either directly or via a free and independent press.
While in opposition, Labor decried the lack of disclosure under various Coalition governments. It slammed Scott Morrison’s secret ministries, tutted at Malcolm Turnbull’s rejection of FOI requests to access government briefs, and condemned Tony Abbott’s “war on truth” when it came to providing information on asylum seeker tow-back operations. It promised a new, cleaner politics — pledging to scrap the “fatally compromised” Administrative Appeals Tribunal, review public sector board appointments, and address a “jobs for mates” culture.
And yet, the motion to establish the FOI Senate inquiry was supported by the Coalition and the entire crossbench with only Labor opposed. Stepping up to refine and properly resource Australia’s broken FOI system is an opportunity for an ambitious and committed government to rebuild trust at a time when Australians’ confidence in the public service and government is plummeting. Government information is a “national resource”, as the government itself acknowledges — it’s time to return it to the people.
Crikey’s editor and editor-in-chief
Gina Rushton and Sophie Black
More humbly, I did an FOI to access info about why my ACT Government grant application, very strong in my opinion, was refused and other rubbishy projects were approved. Of course I got SFA because of resourcing. Who knows what corruption or bad faith processing occurred?
And in immigation, to access your own file, you can’t just request it. You have to do an FOI. That’s why there are so many.
exactly! “Exactly”
Thank you very much, Gina and Sophie and Crikey in general, for performing yet another extremely valuable public service. I really ‘take my hat off’ to you all. I know that my views do not always accord with those expressed by Crikey and by many Crikey subscribers, however on an issue like this I am sure that we are as ‘one’. You all do an amazing job!!!
Today in the Uk – police staff files hacked due to third party contractor( “our partners “) as these never ending associated gaps are often referred in the so called “privacy agreements” … it seems anyman and his dog get our private data by economic coersive practices ; yet when its our private citizen data the govt through the citizens to the dogs – no wonder they are sending most of us into indentured slavery – via data broking via third parties aka in employment cartel jobs sites , warehousing our private healthcare and sensitive data given to the so called training , Ndis “jobs providers”
– do nothing parasites and look now there is no way we get access to the dumb lobby deals done in our name …. but to financially benefit middle men and daft cartel brigade
sic – throw the citizens
Do FOI requests of government and public service departments also include the ABC? And Australian journalists who deal with governments and public service staff? For example, if I, in the ‘public interest’, wish to gain full and unfettered ‘Freedom of Information’ access to all the texts, WhatsApp and emails exchanged in the last few years of #MeToo, between ABC Chief Political reporter Laura Tingle, who I pay, and Louise Milligan and Sally Neighbor, who I pay, and Brittany Higgins and David Sharaz (who I have paid several $million in compensation for as-yet undisclosed reasons), and Rachelle Miller (who I have paid $hundreds of thousands, for as-yet undisclosed reasons), and Senator Katy Gallagher and Federal AG Mark Dreyfuss, who I pay, and ACT DPP Shane Drumgold, who I pay…will Crikey support me in getting them? Will Crikey publish them? Unredacted? Will Crikey journalists disclose all the informational relationships you have established with public figures? All the things you discuss with them ‘off the record’? In the public interest? Will all Australian journalists support me in my FOI requests to see full disclosure of all their private emails, texts, and chat group communications and on-going information relationships with Federal, State and local politicians, as well as public servants?
No? That kind of ‘national resource’ information is only for you journalists, is it? It’s the ‘off-the-record, for-privileged-insider-Knowledge-Class-eyes-only’ kind of ‘national resource’ info, is it? Right, got it.
You Australian Journalists – least trusted worker cohort in the country, let’s not forget – really must think the rest of us are mugs. I will support you in your ‘selfless’ fight
to win a Walkley, build a personal meeja brand and get invited to hip meeja partiesfor FOI when Australian journalists stop taking the mickey with all the many information privileges we as a civic society agree to extend to you. Taking the absolute p*ss, with your relentless insider games with this supposed ‘national resource’ of public information. With your leaks, your drops, your mutually managed narratives, your journo-polly winks & nods & info back-scratching, your partisan agendas and personal vendettas, your activist info-selectivity and your loaded yarn ‘shaping’….all the quid pro quo deal-making and panto-performative interviews, the whole private-public Janus-facery in which both polly and journo collude to tell us only those bits of ‘national resource’ information you jointly agree in in your mutual interests.All of which, basically, amounts to bad faith lying to us. FOI, Australian journalism? FoS, more like it. We do not trust you with our ‘national resource’ information already. Why on earth do you think we’d want to give you more freedom to do whatever you want with it?
Here’s a test for you, though. If you’re fair dinkum. If the reporting of Laura Tingle’s outrageous informational relationship with Team Brittany Higgins is even half true…I’m sorry, but as much as I respect her CV, she is not fit to work on reception at the National Broadcaster. Let alone be our Chief Political Correspodent and ABC Staff Board member. Let alone be President of YOUR National Press Club.
Over to you, hacks. Give us a reason to trust you with our ‘national resource’ information again. And we might.
God Jack!! Just a couple of observations after reading your ‘post’ (I am in a very charitable mood this evening).
Firstly, I am mightily relieved that I don’t have as many people on my payroll as you do. (Actually, Jacky, I am on a part-pension, so don’t forget to include me on your payroll too! I’ll be ‘dee….eeply offended‘ (said with a very deep, exasperated sigh. I am becoming more ‘woke’ by the day!) if you do!)
Secondly, I thought that I was consumed with cynicism. But I guess it is the ‘old story’; don’t complain too much because in no time at all you will come across someone else who is much worse off than you are.
A man was almost sent to jail for a decade by the State on a rape conviction. He might be a rapist. He might not be. We will likely never know now. The collusion of alleged ‘public interest’ journalists like Laura Tingle and others at the ABC – wealthy, powerful, influential journalists, who should know better but have become incredibly cavalier with their real power – in subverting justice for both Higgins and Lehrmann, as daily revealed by the Sonronoff Enquiry, is chilling.
Do you honestly not feel concern at a State funded alleged journalist – the National Broadcaster’s senior political journalist, no less, as well as the ABC Board staff representative and the NPC President!! – colluding with an alleged sexual assault victim and, it seems, the DPP, to pursue (if not secure) a criminal conviction?!?!??!?!? Has the frog boiled so long that it’s brain dead?
This sh*t is breathtaking. It’s not ‘cynicism’ to be angry about it. The opposite, in fact. To demand that our ‘public’ journalism call itself to account for becoming part of a lynch mob is a minimum basic obligation as a good, engaged citizen demanding basic standards of liberal democratic civilisation. Tingle’s position at the ABC is…just untenable.
Sorry, but you’re the cynical one, Robert. I’m just…angry. It’s beyond belief, to me: what Australian journalism has become. Lazy, complacent, careless…dangerous.
i agree with the loss and the shocking loss of innocent until etc – but tge whole place has lost the plot due to this oppositional gotcha poor journalistic myopia – this is not to excuse the right wing captured neo lib lobbyists run stolen public service – dumb gotcha black and white ageist sexist crap – and of course the backlash was a unedifying as the trial by media – Imagine being either innocent victim ! tgat Spotlight piece abd the way the women are smashed is embarrassing indictment of how neanderthal the joint is ; and the maligning of apparent victims by the boys in blue saying her evidence was ” dodgy was tonedeaf bad look 101
lynch mob ! Sern the so called Spotlight hit job making who victim ? How bout last night hit piece on a convicted ” killer ” it was nonetheless misogynist filled vile rubbish and used awful assumptions on what makes a wonan likely guilty – yuk – open up ya eyes and ears
been watching Spotlight that poor angry man
The FOI system is good enough for the ‘freedom & liberty’ driven IPA to make requests on various aspects of the ABC?
I could care less about the IPA just now.
Laura Tingle’s position is untenable. if she remains at the ABC, in her senior positions, after the outrageous and sustained collusive sh*t she pulled during the Higgins episode…then ABC public interest journalism is dead. Dead. If she remains as head of the NPC…then all Australian journalism is a joke.
A dangerous one, Drew.
Who are you comparing Tingle with, it’s neither a broad nor a deep pool of mostly ‘skips’? Part of the IPA manifesto is basically defunding or filleting the ABC as a long term project….
One has heard Tingle making right wing &/or nativist remarks e.g. claiming Australia only has immigration for ‘growth’ and another time suggesting the old 18-19thC trope that immigrants cause unemployment; amazing that such ideas still exist amongst educated and/or experienced media people (around LNP govts. too long)?
Like too many if not most journalists and/or presenters these days, inc. UK & US, they lack basic financial, economic, maths and science literacies which precludes informed challenges of guests; also allows media to become influenced and conditioned by all these ‘talking points’ they allow and unwittingly transmit.
But good for political and/or issue ‘horse race commentary’ (Jay Rosen, Prof. of Media, NYU)
Yes, all good points…but this is a kind of ‘next level’ issue. I don’t care really care about Tingle’s politics, whatever they may be. In fact I think she’s a very good journalist. But that’s the true worry: this isn’t Simon Benson we’re talking about, shamelessly using the Tele to get Scott Morrison pre-selected in Cook.
This is a criminal trial. This is the State using its power to put an individual in the frame for a ten year stretch in jail. Tingle – like so may other journos over #MeToo – clearly completely lost
perspectivethe plot, regarding where the line is between legitimate journalistic ‘curating’ of relationships with newsmakers to pursue information…and actively colluding, in bad faith, with the State’s power, to secure outcomes that can destroy people.It’s madness. Journalism needs a major ‘re-set’…and Tingle needs to go. It’s crucial that journalism delivers itself a recalibrating kick in the arse. They should have done it over Iraq WMD.
This is the ABC we’re talking about. The information power this organisation has is immense. Much bigger than News, which everyone around here so hyperventilates about. Yet in general News Corps has been vastly more responsible re: the Lehrmann trial – #MeToo in general (including Pell) – than the ABC. Vastly.
Showing your age (lack thereof) there Jack to forget the Gulf of Tonkin or Belgian Babies on Hun Bayonets,
the Yellow Peril, the Missile Gap & the Window of Vulnerability or the Domino Theory – all the mouldy oldies
Or, for something more recent, the US proxy war on the Ukraine imbroglio.
myopic
disagree with the man splaining so borish this patting women on the head
not at all true – ya got a 2 bedroom house 10 people they get squashed unless there are other factors to permit GOOD growth
what about getting on ya high horse re the limited broadcasting licenses we also pay for ?! Get onto the journo standards in on neo lib favorite outlet Stoke’s 7 with that sexist hitpiece on women 3 weeks in a row – on Spotlight the cruel characterizations and tge outrageous bias
missing point to push a line ! beenestching Spotlight !? Clear bias – but try following the reasons ; FOI LAWS are / have been ignored under both parties and this is a slap for democratic structures – nuance mate not black and white sexist talking garbage