Tuesday, 15 October 2024

Integrity and Oversight Committee

Inquiry into the Operation of the Freedom of Information Act 1982 (Vic)

The Clerk: Pursuant to section 35(2)(c) of the Parliamentary Committees Act 2003 and following the release of the report on 23 September 2024, I table the report on the inquiry into the operation of the Freedom of Information Act 1982, including appendices and extracts of proceedings, from the Integrity and Oversight Committee.

Ryan BATCHELOR (Southern Metropolitan) (13:36): I present the transcripts of evidence and move:

That the transcripts of evidence be tabled and the report be published.

Motion agreed to.

Ryan BATCHELOR: I move:

That the Council take note of the report.

The Freedom of Information Act 1982 in Victoria is 40 years old, one of the first acts of the Cain Labor government. It was a world-leading piece of legislation, but it is pretty clear from this inquiry that the Integrity and Oversight Committee has been doing for close to the last 18 months that Victoria’s freedom-of-information laws are not written to take account of the digital age and that the way information is created, accessed and used across government has changed, unsurprisingly, in 40 years. The committee calls for a pretty fundamental rewrite of our freedom-of-information laws in this state to take account of the changes to the way information is being used across government today.

One of the big revelations certainly to me in the course of the inquiry was that two-thirds of the freedom-of-information requests made in Victoria every year are by individuals seeking information about themselves that government holds, and many wait too long – sometimes months, occasionally years – to receive that information. In the committee’s view that is not an acceptable practice. The experiences that too many individuals have are varying agency to agency, with a lack of consistency. We certainly heard some exemplars of great practice that exist in Victorian public sector agencies subject to the FOI act where access pathways are quick and consistent, and we heard some examples which were the opposite.

Freedom-of-information laws are also important for transparency and accountability in government decision-making, and effective government is in the interests of all citizens. We heard from many witnesses who spoke of the important role of effective decision-making and the ability for governments to tackle complex public policy challenges and come up with policy solutions that are important to our democracy, and of the role that our cabinet system plays in protecting that effective decision-making. The committee examined the freedom-of-information rules that sit around the cabinet system here in Victoria. We recommended some changes to the test – and whether documents were created for the dominant purpose of cabinet decision-making as being a new test – but we found that the principles of cabinet confidentiality and cabinet solidarity were important to our system of government and important to effective government here in Victoria.

The committee made 101 recommendations, critically also recommending that we abolish fees for accessing personal information – as I said, two-thirds of all requests made under freedom of information were for personal information – and limit access charges, fostering a better culture of freedom of information. We think we should do that by creating a new third-generation push system, which we would recommend be called a ‘right to information act’, to replace the first-generation act, which was passed by this Parliament in the early 1980s. So instead of applicants having to pull information out of the system, we would push out relevant information. We would change the definition in the laws to encompass broader concepts of information that we have and have a new three-part test apply to almost all of the exemptions that relate to disclosure of information, underpinned by a presumption favouring disclosure of information so that if refusal is contemplated by an agency, they must demonstrate (1) that they are protecting a legitimate interest – for example, privacy; (2) that disclosure will cause substantial harm to that interest; and (3) that that harm is not outweighed by any public interest disclosure, which we would view as a public interest override.

The committee heard evidence from experts from around the country and some international evidence as well. There was a lot of thought that went into a lot of the submissions that were made to this inquiry, and I want to thank all those who gave evidence both in written form and to the committee. I want to thank my fellow members of the committee. This was a cross-partisan effort looking at what is a pretty fundamental piece of legislation that underpins our system of government and our democracy. I think the work of the committee secretariat in distilling that and proposing recommendations for a new system in the future is a testament to the quality of those staff. I commend the report to the chamber.

David DAVIS (Southern Metropolitan) (13:42):(By leave) I rise to make a contribution to the Integrity and Oversight Committee’s recent inquiry. I think the inquiry has an enormous amount to be commended. The 101 recommendations do recommend a shift in the model, a shift with a focus on the pushing out of information. I am not absolutely sure that they have quite got to the nub of how difficult government can be in resisting the release of information. The Office of the Victorian Information Commissioner data on their website shows the deterioration in performance since 2014 in the release of information across a wide variety of departments. But there is much to commend the inquiry on. I think the submitters have added significantly to it, I think the committee staff have added very significantly to this and I think the members of the committee have made a very useful contribution here.

It is, as Mr Batchelor says, true that the handling of information is fundamentally different now to what it was 40 years ago, the then Liberal government introducing an administrative regime prior to 1982, and then in 1982 the Freedom of Information Act introducing very significant changes to the essence of our regime that has existed ever since. But the system has become very cumbersome and very slow, and the huge power of government departments and agencies to utilise legal processes and delaying tactics is something that has to be addressed. If we are to have genuine right-to-know information and genuine open government, we actually need to address that huge power imbalance that is there, whether it is MPs doing the FOIs or journalists or members of the community. Mr Batchelor is of course right that the majority of FOIs are about personal information, and they should be treated as a class that is moved through very quickly. I commend the committee for this report.

Motion agreed to.