Advocates say nation’s FOI system is under attack

A campaign from the Grata Fund is trying to make it easier for Australians to access government information

Australia’s Freedom of Information (FOI) system is failing to provide proper transparency of government behaviour, with governments ramping up efforts to hide information from public scrutiny during COVID-19, community leaders warn.

The Freedom of Information Act 1982 gives people in Australia the right to request access to government-held information.  

But the Grata Fund argues that the FOI system is under attack by governments that increasingly seek to hide information from the public and evade accountability.

So it launched the FOI Project late last year, looking to change the system, build FOI awareness and capacity, and expose FOI abuse.

Grata Fund founder and executive director Isabelle Reinecke told Pro Bono News there was a huge gap between what the law says and how governments and ministers are actually applying the law.  

“We’re really motivated to ensure that there’s proper transparency of government behaviour, the decisions they make and why they make them, to ensure journalists and advocates can shed light on any issues they might find,” Reinecke said. 

“Exposing misconduct is really embarrassing for governments. And we’re really seeing the Australian government increasingly applying pretty aggressive strategies to dodge these obligations under the FOI system.” 

Reinecke noted that the Department of Prime Minister and Cabinet, the Australian Federal Police and the Department of Human Services were all found to have broken FOI laws last year, by inexplicably delaying FOI decisions. 

She said COVID-19 has only exacerbated the issue, especially with a national cabinet being formed to replace the Council of Australian Governments (COAG).

The federal government argues deliberations from national cabinet – comprising of state, territory and federal leaders – are exempt from FOI laws in the same way that federal cabinet decisions are.

But the Australian Conservation Foundation (ACF) last year obtained legal advice that said it was unclear whether or not national cabinet documents automatically receive the cabinet exemption. 

This led the FOI Project to kick off its first case last week, with the ACF challenging Environment Minister Sussan Ley’s refusal to release documents relating to 15 “fast tracked” environmental approvals granted through national cabinet.

Leading Australian barrister Geoffrey Watson SC will represent the ACF in the case, which will be heard at the Administrative Appeals Tribunal.

Reinecke said this case was indicative of the broader issues at play regarding the FOI system.

“We’ve seen the government unilaterally ramp up its efforts to hide information from public scrutiny during COVID,” she said. 

“For example, high level advisers who represent the fossil fuel industry are now able to provide guidance to the government [through national cabinet] and that information is now secret. 

“We think that’s a misapplication of the law, which is why we supported the Australian Conservation Foundation to challenge that at the AAT.”

Reinecke said advocates just wanted to see the system working the way it was intended to, so the public can know what’s happening behind closed doors and governments can be held accountable. 

“We know in police watch houses in 2019 there were some horrifying experiences of vulnerable children being abused. We only were able to find that out because of the FOI laws,” she said. 

“Without FOI providing transparency on that issue, harm to those children would have continued.”

The FOI Project is planning to release a litigation “hit list” that will include what they consider are unfair uses of exemptions by ministers and government departments. 

The project will also publish a detailed report exposing abuses of FOI laws and will partner with Monash Law School to educate journalists and civil society on the FOI system.

Reinecke said the project was keen to work with community groups, particularly those that felt they were unfairly rejected for an FOI request.

She said building a fairer FOI system was important for the community sector.

“Many people in the sector are used to working with human rights abuses, misuse of power, environmental destruction and corruption. And they are aware of the role government can sometimes play in perpetuating this,” she said.

“There will be many benefits to having a system that actually provides transparency and timely information to community groups about what’s happening to the people they’re there to serve and represent.

“If they don’t know and we don’t have the information, it’s very, very difficult to create change in our communities.”