Freedom of Information Amendment Bill 2025 (cth)
Committee Secretary
Senate Legal and Constitutional Affairs Committee
PO Box 6100
Parliament House
Canberra ACT 2600
Dear Madam/Sir
Freedom of Information Amendment Bill 2025
Kindly accept this submission in relation to the above Bill
1. Principles
We start with the premise that public information does not belong to Government; it belongs to the public on whose behalf government is conducted.
It is clear that to protect individual liberty we should have the freest possible flow of information between government and the people.
2. Background
In order to discuss the changes discussed in this Bill we need some background information.
In 2022 the Centre for Public Integrity published a report on FOI[3]. It found at pages 3 and 4:
Since 1984-5 the number of FOI requests has hovered between 20,000 and 45,000 per year with no structural trend. For example, 2003-04 saw FOI applications peak at 42,627, then halve to 21,587 by 2009-10 and once again steadily increase. The median FOI requests throughout this period was 33,804 per year. These data suggest that the baseline demand from citizens for governmental information seems to have changed little since the FOI regime was introduced in 1982.
The Centre published a second report in July 2025, which found that a boost in funding had resulted in significant improvements in review times. But it noted that
The proportion of requests granted in full has fallen from 59 per cent in 2011–12 to just 25 per cent in 2023–24. Meanwhile, refusals have nearly doubled—from 12 per cent to 23 per cent[4].
It also found that
In 2022–23, for the first time on record, more FOI requests were refused than granted in full—defying the FOI Act's presumption in favour of disclosure[5]. (Page 5)
It further found that “medium-term pressure on the FOI system has eased. Total FOI requests have fallen by 16.0 per cent since their medium-term peak in 2019– 20, and OAIC review requests have fallen 16.5 per cent since their medium-term peak in 2020–21”[6]
These statistics seem to be inconsistent with the government’s narrative that there has been a sudden increase in FOI activity that requires the amendments proposed by this Bill. We urge this committee carefully review whatever evidence may be proffered by the government in support of its position.
3. Anonymity
The first amendment which we wish to address concerns the introduction of a requirement that people prove who they are in order to make an application. Once again this is said to be necessary to deal with an increase of applications being made by bots. We ask what is the evidence that the ability for people to submit an application under a pseudonym has caused integrity problems in the system? The Committee should pursue this question rigorously with the government
The right to access information is often characterised as an aspect of the right to free speech[7]. The right to speak anonymously is an aspect of the right to free speech, though it is not an absolute right. The basis of the right to speak anonymously is avoiding retribution for expressing political views. That interest is not quite so compelling when it comes to freedom of information. However, we can still understand the position of some people who do not want to tell the government that they are investigating an issue. We would need to see far more convincing evidence of the need to remove the current situation where applications can be made anonymously or pseudo anonymously. The Committee should insist on receiving very specific, concrete evidence that bots are being used regularly to overwhelm the system.
4. Cabinet
Currently Section 34 deals with Cabinet documents making the following documents exempt from disclosure:
• Cabinet submissions that have been submitted to Cabinet, or are proposed for submission to Cabinet, or were proposed to be submitted but were in fact never submitted and were brought into existence for the dominant purpose of submission for the consideration of Cabinet (s34(1)(a));
• official records of Cabinet (s34(1)(b);
• documents prepared for the dominant purpose of briefing a minister on a Cabinet submission (s 34(1)(c)); and
• drafts of a Cabinet submission, official records of the Cabinet or a briefing prepared for a minister on a Cabinet submission (s 34(1)(d)).
This Bill waters down the requirement that a document be brought into existence for the dominant purpose of submission to a requirement that submission to cabinet be the “substantial purpose” for its creation.
Recently the Robodebt inquiry said:
It is time to ask whether the rationale of public interest immunity – the maintenance of Cabinet solidarity and collective responsibility – really justifies the withholding of information that routinely occurs under that mantle. Nothing I have seen in ministerial briefs or material put to Cabinet suggests any tendency to give full and frank advice that might be impaired by the possibility of disclosure, and the Cabinet minutes which are in evidence are sparing in detail, with a careful mode of expression revealing nothing of individual views.
And the Queensland Coaldrake review said:
The Department of Premier and Cabinet develop a policy requiring all cabinet submissions, agendas and decision papers (and appendices) to be proactively released and published online within 30 business days of a final decision being taken by Cabinet, subject only to a number of reasonable exceptions which should be outlined in the policy.
However, we accept that an exemption for Cabinet documents is necessary to preserve Cabinet secrecy which is fundamental to the operation of our constitutional system.
We would submit that the UK system strikes the correct balance, cabinet documents are exempt subject to a public interest test, i.e. information may be disclosed if the public interest in disclosing outweighs the public interest in withholding, including the public interest in maintaining cabinet secrecy.
In short, our submission is that rather than broadening the cabinet documents exemption, the statute should be amended to narrow it in the manner that it has been in the United Kingdom
5. Fees and Charges
The Council’s position is that FOI must be a substantially government funded regime.
Four arguments are usually advanced in favour of applicants bearing the costs of FOI applications.
1. That FOI is a government service for which the user ought to pay – this is a fundamental nonsense. FOI is no more a government service than elections are. It is part of the process of accountability and democracy.
2. Imposing charges would deter the use of FOI as an alternative to legal discovery or for voluminous, frivolous and repetitious requests – We are not aware of any evidence that FOI is used excessively as an alternative to legal discovery. But in any event the Council remains steadfastly behind the fundamental principle of FOI that the purpose for which documents are requested should be irrelevant. Once the purpose for which the documents are requested becomes the subject of investigation, then in the Council’s view that will be the end of FOI.
3. People who use FOI for commercial gain should not be subsidised by public funds – Once again we invite the Committee to call for and produce statistics supporting the proposition that a substantial portion of the cost of FOI is being incurred for profit making purposes. In any event, once again, the Council is of the view that any change to the FOI regime which introduces the purpose of the applicant as a relevant factor is a slippery slope down the slide towards destroying the regime.
4. Imposing a cost regime will give applicants an incentive to be specific - Once again, in the Council’s view this is adequately achieved by the regime which is already in place relating to voluminous requests.
In 2022 the government spent $145.3 million on advertising.[8] We would invite the government to deny that this is much more than the cost of FOI. Of course, the difference is that in the former situation the government controls the information and in the latter it does not.
It is clear in the submission of the Council that a substantial alteration in the fees regime must result in reduced applications and hence reduced accountability. In this regard, we note the substantial paper of Mr Alistair Roberts[9] where the author makes the following telling observations: -
1. In Canada a substantial proportion of costs associated with the administration of FOI laws are associated with weaknesses in methods of records management or are driven by government’s own demand for services in the system, i.e. by pressure from the government, to determine a basis upon which the information should be withheld. The submission of the Queensland Information Commissioner to the LCARC Inquiry[10] found similar problems in Queensland.
2. Public officials divert requests for information that would once have been handled informally into the FOI system.
There should be no fee for internal or external reviews.
6. Voluminous and/or Vexatious Requests
The Council opposes provisions allowing applicants to be deemed vexatious because:
1. Once again, it invites consideration of the motives of the applicant which in our view should never become a part of the freedom of information process. As we have commented elsewhere once that occurs, in the Council’s view that will be the end of FOI.
2. Vexatious is a vague concept allowing a subjective assessment.
3. The existence of the provision may inhibit bona fide applicants.
In our view the appropriate focus of attempts to control vexatious applicants is the number and size of requests. So far, no concrete evidence has been provided that this is not already adequately dealt with in the existing provisions in the Act.
The change proposed by this Bill to the diversion of resources provision is to provide a processing cap of 40 hours. We oppose this provision for all the reasons we have articulated elsewhere in this submission. In our view government should not put a cap on its responsibility to provide the public with information about its functions that is requested of it. Each of these decisions should be made in each particular case.
7. Deliberative process
Clause 14 amends the deliberative process exemption as follows:
If the document is conditionally exempt under section 47C 10 (deliberative processes), factors that are against giving access to the 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 (whether in a particular case or generally):
(a) prejudice the frank or timely discussion of matters or exchange of opinions between participants in deliberative processes of government for the purposes of consultation or deliberation in the course of, or for the purposes of, those processes;
(b) prejudice the frank or timely provision of advice to or by an agency or Minister, or the consideration of that advice after it is provided;
(c) prejudice the orderly and effective conduct of a government decision-making process.
In our view that this is an exemption quite often claimed as a coverall when there is nothing else to rely upon. It should not be extended. Subparagraph (c) would turn this exemption into a black hole into which all manner of documents the government finds embarrassing would be dumped and cut off from the public. If members of the public are to make a meaningful contribution to political debate they need to have access to the material upon which decisions are made.
That there is no necessity for this amendment is made clear by the comments of the former Senior Public Servant Mr Andrew Podger [11]in Pearls and Irritations 19/9/25:
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 to see 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 with which they do not agree. Such advice is soon set aside as work proceeds on options which with the government feels more comfortable.
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, 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.
We trust these comments are of assistance to you in your deliberations.
[1] Alasdair Roberts Structural Pluralism and the Right to Information (2001) 51 University of Toronto Law Journal 243 at 256.
[2] Snell & Langston “Who Needs FOI When Market Mechanisms Will Deliver Accountability on Demand?” A Critical Evaluation of the Relationship between Freedom of Information and Government Business Enterprise 3 Flinders Journal of Law Reform 215 at 229 – 230.
[3] https://publicintegrity.org.au/wp-content/uploads/2025/06/Delay-and-Decay__GD-Update-1.pdf
[4] Australian Freedom of Information: Secrecy and Delay page 4 https://publicintegrity.org.au/research_papers/foi-secrecy-australia/
[5] ibid page 5
[6] ibid page 4
[7] Scanlon “freedom of expression and categories of expression” in “ The difficulty of Tolerance” Cambridge University Press 2003 at pages 90-1
[8] Australia Institute https://australiainstitute.org.au/post/govt-spends-more-on-advertising-than-coles-woolworths-mcdonalds-amid-crossbench-calls-for-greater-oversight/
[9] Limited Access: Assessing the health of Canada’s Freedom of Information Laws April 1998 found at HTTP://qsliver.queensu.ca\sps\
[10] Legal and Constitutional Review Committee “Freedom of Information in Queensland” Report No. 32 December 2001 at page 166. https://www.parliament.qld.gov.au/Work-of-the-Assembly/Tabled-Papers/docs/5001t1983/5001t1983.pdf
[11] Pearls and Irritations 19/9/25 https://johnmenadue.com/post/2025/09/foi-amendment-bill-not-what-faulkner-or-allan-hawke-wanted/