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Wednesday, 13 November 1985
Page: 2046


Senator MISSEN(10.58) —I move:

That the Freedom of Information (Charges) Regulations (Amendment), as contained in Statutory Rules 1985 No. 113 and made under the Freedom of Information Act 1982, be disallowed.

I will be supported in this motion by a number of my colleagues and by my colleagues from the Australian Democrats. I notice with some surprise that the Australian Labor Party will not be putting up any speakers to defend these regulations. Nonetheless, it is important that the Senate should have before it the reasons why we are proceeding to disallow these regulations and the way in which the Government has acted so inconsistently with its election undertakings that has led to their disallowance coming about. It is part of the power of the Senate or the House of Representatives for that matter to disallow regulations which prove to be inconsistent or unjust or which, as in this case, go to the very centre of freedom of information, which is access, and stop it from being used. In some other countries the Act which we call freedom of information and which we regard as an important kernel of the democratic system is called `access to information'. Therefore, access is important. If we create a beautiful Act and make it impossible or unwise for people to use it, we reduce it to a sham and a hyprocrisy, which we are determined not to do.

Let me quickly outline the case against these regulations. My colleagues will supply other examples of their misuse. They have been in operation now for four months and we have seen the way in which they have been used. The Hawke Government came into office with an undertaking that it would comply with the spirit and the letter of freedom of information. Its election promise of 1983 as contained in its policy states:

Labor will implement fully the outstanding recommendations of the Senate Committee on Constitutional and Legal Affairs to ensure that freedom of information operates in practice as well as in name.

Honourable senators may recall the scorn which was poured on Liberals who accepted a Bill which was not as good as we hoped for but we were determined to get a Bill going while we were in government and had a majority in both chambers. We applauded and supported amendments, some of which were moved by Senator Gareth Evans and some of which were forced on the Government by the actions of the Opposition in the Senate to make sure it carried out the terms of its undertaking. One also ought to remember what the present Attorney-General of the Commonwealth, Mr Lionel Bowen, said about freedom of information during his period in opposition. I ask honourable members to remember these words. He said:

Freedom of Information is a basic democratic right and it lies at the heart of the democratic system.

This was said in August 1981. He is now the Attorney-General and the sponsor of these charges regulations which I seek to disallow. It is this attack on the heart of the democratic system that we particularly resist today. Honourable senators will recall that Labor Party policy which I quoted talks about implementing the recommendations of the Senate Standing Committe on Constitutional and Legal Affairs. Recommendation 15 of the Committee's massive report on this subject states:

The Bill should contain an additional clause specifically exhorting agencies, when processing requests for documents, to do so with a view to making the maximum amount of information promptly and inexpensively available to the public.

Both of those requirements have been greatly betrayed by this Government. In the Act which was brought in by our Government there is a provision in the objects section, section 3(2), which states:

It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the objects set out in sub-section (1) and that any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

Could anything be clearer than that or any obligation more satisfactorily set out? I suggest that this section has been disobeyed and that these regulations fly in the face of it. It may well be beyond the powers of the Government to enact such regulations because they do not comply with the terms of the Act.

Since the Government has been in power we have seen a considerable move against the Freedom of Information Act in practice. In the first place we saw some excellent reports when Senator Gareth Evans was Attorney-General, but it is worth reminding the Senate that the third annual report is now four or five months overdue. While this debate is going on, Mr Lionel Bowen tells me that the report is ready to be tabled and he does not know why it has not been. We have not been given the facts set out in that report telling us how the Act has operated in its third and vital year. One is reminded of the people who have spoken critically of the use of the Act, people such as Senator Walsh. As reported in the Sydney Morning Herald of 15 March 1985, he said:

Whether the Government should continue to provide a near costless (to the user) research service for journalists and retired politicians is open for doubt.

He was trying to suggest that this was causing the increase in costs. We know that the greatest use of the Act in the first few years has been made by people seeking to obtain their own personal information from government. A few people have sought other information. Journalists do not seek information often enough in my opinion and politicians do not make sufficient use of the Act to obtain facts which they can use effectively in the chamber.


Senator Haines —At $4 or $5 a page it gets beyond most of us.


Senator MISSEN —It gets beyond politicians who are supposed to have great means. By the time we have to pay large deposits, as Neil Brown and other people have found to their cost, it becomes a foolish thing to rely on.


Senator Peter Baume —But they are costs; you may get no information.


Senator MISSEN —Yes, and we may find that the money has already gone and we cannot get it back. Mr Keating, the Treasurer, in May 1985 said:

The Government has been increasingly concerned at the resources devoted to the provision of material under the FOI Legislation.

We should always remember what was said by Mr Bowen. He said that freedom of information was at the heart of democracy. But he is concerned about the costs. However, the costs are not that great. Something like $20m per annum has been incurred in this way. Of course, the cost of government information set out in glossy publications is something like $106m to $120m. That, as Senator Ryan said in opposition, is information that people do not want. It is information that is forced on them. Of course, people do want freedom of information material.

I will deal with the cost question in more detail later. However, I remind the Senate of the difficulties that one finds when people go into government with high ideals and then lose them. Senator Gareth Evans is not here to defend these regulations--


Senator Gareth Evans —Vigorously!


Senator MISSEN —The honourable senator says `vigorously' with a smile. While I attack him, I do so merely as the Attorney-General's representative. The birches that I use are merely representative birches. I know that he has been fairly solid in his defence of freedom of information.


Senator Peter Baume —Let us see how he votes.


Senator MISSEN —Oh well, we know how the Labor Party acts in respect of voting. Senator Gareth Evans, when in opposition, was reported in an article in the Canberra Times by Jack Waterford in the following terms:

Senator Evans himself wryly commented during the election campaign that any government which intended to increase access to government information had to do it in its first fortnight-before it had any secrets to hide-or it would never do it at all. In saying that, however, he was confidently asserting that he could do it.

I am not sure whether he is so confident now but it was certainly a true and wise statement at the time.


Senator Puplick —It seemed like a good idea at the time.


Senator MISSEN —If I may say so, it seems a good idea now. What do the amending regulations do that we are criticising? First, of course, they increase the charges by 250 per cent. That is a pretty large whack. Even with the rate of inflation going down, that is the way costs are going up in line with the attitude of the Government.


Senator Haines —It has probably got something to do with the Australian dollar.


Senator MISSEN —I do not think it could. This is a great increase for ordinary people to have to pay. Information which was sought from personal files was first given freely. That is not the case now, unless one is in receipt of a pension. However, the number of people who are able to obtain this information free of charge is greatly restricted. So it has become foolish for people on ordinary small incomes to rely on the Freedom of Information Act and to seek information which one may find ultimately is not even in the files anyway. One will have paid $20 for the inquiries and that charge is now imposed upon people and is not refundable. The charge is imposed irrespective of whether the Government says that it will not give the applicant anything or there is no information.

In addition to that, the new regulations require departments to impose a charge of 50 per cent of the estimated total charges by way of deposit. Of course, that is a great idea because the estimate is made by a public servant. There is no way of knowing precisely whether the estimate is just or not. Of course, enormous charges have already been imposed.

Senator Lewis is one of the victims of this practice. He has been seeking information, as is his duty as a shadow Minister of the Opposition. In July 1985 he made a request to the Department of Territories, which is the responsible department, for access to all documents relating to policy, funding, allocation and disbursement of moneys in respect of the community housing expansion program. The Department in reply said that the request `would require considerable verification before processing' and that `in its present form it is estimated that a charge of $480 would be incurred by you'. He was then asked to narrow down the request to manageable proportions by specifying the documents to which he was addressing his attention. Senator Lewis rightly points out that one cannot do that without first looking at the files and finding out what is there. So he was caught in a catch-22 situation. That is, of course, the way in which his request is going to be dealt with if that regulation stays on foot.

So we have a situation in which not only deposits are paid but also those deposits are calculated by the department concerned on the basis of very rubbery figures. Of course, in some respects the desposits will not be paid back. This Government does not like the idea that members of parliament have that getting information out of government is in the public interest. The Government has ignored the argument about public interest and requires deposits to be paid in the way I have outlined. We could give many examples of this.

In respect of the practice of deterring people from seeking information, I would like to quote what was said by the Free Speech Committee in New South Wales which is made up of many organisations and persons such as artists, poets, publishers, journalists and film makers. The Committee has written a good submission on this matter. It said:

Not only will this level of charges generally deter applications for documents of a personal nature, it will gravely disadvantage low income earners. Whilst section 30 of the FIO Act 1982 confers a right to the applicant to apply for a remission of the charge on the ground of financial hardship, the concomitant requirement to argue a case and to provide information of a confidential nature will act as a disincentive to applicants on low income.

We can also produce examples of full time students who are required to produce evidence that they cannot pay the huge sums that are imposed. So the Government has put up another hurdle in the way of people seeking information.

The Government has also made it difficult for people to obtain a waiver of fees. If members of parliament cannot get them waived, we can see what chance an ordinary member of the public has of doing so. An article in the Canberra Times of 7 November dealt with the question of fees. It is interesting to note that that article states:

Most FOI requests are for documents concerned with an individual's personal affairs, usually fairly readily assembled and involving few if any complicated questions of exemption. In the past, these have been provided free. Even requests made in the general-interest area-of policy and administration-were processed free, agents recognising the substantial public interest in the material in question. Now, however, agencies have been told to charge as a matter of routine, except in cases of people requesting documents associated with pension and welfare entitlements.

Therefore, a small group of people still remains. The salient answer which the Canberra Times expressed in respect of the discouraging of requests is worth reading. The Canberra Times said:

The real reason for the changes associated with fees is that the Government is trying to bluff people out of exercising their rights under the Act. If the fees were made high enough, and it is made plain that one will have to pay regardless of what one gets, then people will be discouraged from making requests. In some cases, the level of fees being sought suggests that applicants are being forced to pay for poor registry practices of departments: it should not, however, take hours to find a file if what is being sought is clear enough and the agency has carried out its duty of consultation. The ones being most discouraged, of course, will be those who can least afford to pay: wealthy people and corporate interests will not be deterred by the new fees, or from taking the opportunities that getting access will give them.

I think that is a very true assessment of the regulations and the reason why they should be thrown out. Costs have not greatly gone up. In fact, the cost per application has gone down considerably as past annual reports of the Attorney-General's Department clearly show. Indeed, the charge in the first place was very largely made up by the cost of departments putting their affairs in order, creating the necessary documents that are needed to allow them to find the information that was applied for as well as producing manuals and so forth. Those costs made up a major component of the costs. The cost now is mostly made up of the work involved providing access to the information. We wait with interest to see what the drop in access has been this year as a result of the level of fees.

It is interesting to note that the Council of Civil Liberties in New South Wales has pointed out the way in which the calculation of costs is rubbery. For example, this is what the Council says:

By placing these inhibitions on disclosure in obscure Regulations expressed in impenetrable prose, the Government has embarked upon a campaign to repeal the Act by stealth and subterfuge. It cloaks the justification for these charges in the language of fiscal restraint but its motives are transparent. Even the figures cited for the alleged blowout in the cost of the Act are rubbery. For example, the Government has inflated the actual cost to 88 per cent to provide for on-costs, yet the usual provision for on-costs is 60 per cent.

That is an enormous increase in the estimated cost this year. Our bureaucrats are doing this, using a large figure, which is not the normal figure, to try to justify the statement that costs are too high. But assuming there are costs which should be kept down, this is not the answer, not the way to go about it. As has been pointed out by numerous people who have written to me, the costs of FOI have been greatly increased by the actions of departments in taking objections right up to the door of the Administrative Appeals Tribunal and then giving way-giving the documents and thereby increasing the costs to the community considerably. That habit should be stamped out.


Senator Harradine —And to the individual applicant, too.


Senator MISSEN —Yes, the cost to the individual applicant in the individual case is greatly increased, and that makes him wonder whether he should have got into the whole mess that is created by this action. Administrative incompetence is another factor. This aspect is again referred to in the Australian this morning, from which it is clear that many applications could be dealt with in an informal way but they are not. They are dealt with in a procedural way, thus increasing costs. Moreover, in view of the fact that files are badly misused and badly collected, I would point out that one of the purposes of the Act was to get the filing systems right and to make them easier to get at. The fact that the bureaucrats do not do this and then charge the applicant the enormous search fees they claim is very bad.

The Library Association of Australia, which over the years has taken a great interest in FOI matters, said this in a letter to the Prime Minister on 19 August this year:

Since the legislation itself provides for a refusal of access on the grounds of excessive and unreasonable interference with the work of an agency, it is hard to reconcile this with the allowance of such an abuse. Effectively the ordinary citizen seems to be being penalised by an increase in charges which will affect him or her considerably, but the media or other researcher relatively less.

There is that section contained in the Act. It is one of the grounds in the Act under which the bureaucrats can refuse to allow access if it will `excessively or unreasonably interfere' with the work of the agency. If there are vexatious persons around-and undoubtedly there are, as there are in all walks of life-who make claims again and again, those concerned can deal with it. They already have the provisions in the Act to deal with it and they are not doing so. They should not come back at individuals by making claims and charging them as a consequence.

Let me put forward some other arguments that can be raised against these regulations. The truth about costs is being avoided, as I have said, and it is the duty of the Senate Committee on Constitutional and Legal Affairs, after the three years of operation of this Act, which is now up, to look into the problems that might arise. At any moment now that Committee will be seeking that application; it has been waiting for the third annual report. I compliment the former Attorney-General on the excellence of the earlier annual reports, which were most informative. We have not got the third annual report and have been waiting since the end of June. Since it was known that this debate was coming on, why has not the report been tabled? Why has not the Committee on Constitutional and Legal Affairs got it, because it is a basic document that it requires to look at the whole study-not just at the question of costs, which is one aspect only?

The question of costs reminds me very much of the Red Queen in Alice in Wonderland who said: `Judgment now, evidence later'. That is exactly what the authorities are doing. They want evidence to come out later when the report comes out. We will know then whether there is any excessive use, but they want to have the judgment now. But for our vigilance and the vigilance of members of the community in making sure that this matter comes before the Parliament now, this would have been a fait accompli and later the facts probably would have shown it not to be justified.

It is also said-this is another argument that may be used against the regulations-that there is no clear evidence of the need for these increased costs. In a report by the Free Speech Committee of 4 November 1985 it is pointed out:

The second annual report on the operation of the Act stated that the `costs of administration of the Act reported by the agencies appear to be contained to a satisfactory level'.

That is the last word we have had. This year we have not heard a word to know whether costs are still as they were or whether they have gone sky high. The Free Speech Committee went on to say:

Firstly, the annual report acknowledges that the costs reported to the Attorney-General's Office by agencies ``varied widely in nature and extent, and in the bases used to determine them''.

Why is that? Is there a lack of control here? Why are some departments charging more and costing more rather than less? Furthermore-and this comes from the reports-the fact is that not only are the overhead charges, the `on-costs', being used wrongly but it is argued that the estimated staff costs should be discounted to account for the savings that have accrued to government departments and agencies as a result of FIO. The Free Speech Committee points out:

These savings, whilst difficult to quantify, include improvement in the quality of decision-making and its documentation; increased knowledge of government by members of the public; increased perception by officers of their responsibilities; improved relations between members of the public and government agencies; streamlining of procedures . . .

It looks doubtful whether there has been as much streamlining of procedures as there should have been under the Act. The fact is that the distortions contained in statements by members of this Government have not comprised the facts on which we should be expected to rely to justify such regulations as these. Why has not the Regulations and Ordinances Committee of this Senate acted in this matter? It has been alerted to this matter by me and by the New South Wales Council for Civil Liberties. That Committee wrote to the Minister and was a long time getting a reply. I say in general that it has now accepted that reply at face value and in it are many things that we and the New South Wales Council for Civil Liberties challenge as being inaccurate and not checked. I regret to criticise a body of which I was once chairman, but I think that the Committee has not done its work properly on this regulation. Indeed, the rights of the individual and rights under the Act have been vitiated by the action of this Government. I hope that it will be more astute and will give notice, as it did not give notice in this case, so that this does not come to pass as a fait accompli.

The Government's folly is also to be seen in the guidelines issued since the regulation came into operation. It has been seen how strictly-time does not allow me to go into this matter-these matters as to the requirements are being enforced on members of parliament and on other individuals. The objections which have come in have been very great-objections from members of parliament, the Wilderness Society, the Law Institute of Victoria and the Library Association. Indeed, I am in the process of setting up a series of organisations throughout this country. Already the process has started-in Melbourne today, beginning tonight in Canberra, and it will start in Sydney next week, I trust. It will set up a freedom of information access network so that in future we will not be caught in this way. One realises that we should give some attention to the way in which an Act such as this is operating. I am glad to say that members of all political parties are associated with that new formation. Its purpose is not political.


Senator Durack —Are there any Labor senators associated?


Senator MISSEN —Yes, there are. There are Labor senators and Labor members.


Senator Durack —Really? Who are they?


Senator MISSEN —I respect them. I realise that they are stuck by their Caucus rules.


Senator Durack —They have got the courage of their convictions, though, haven't they?


Senator MISSEN —Unfortunately, that is their foolish rule, but at least in this matter they are disclosing an interest and a worry which I know they have about this. The public has been roused and there is an interest in this matter. When one considers the figures that came out early in the history of freedom of information, one realises that it was not well known across the country that it existed. The rights were not well known and the matter is still at an early and formative stage. One is worried, therefore, that such a decision might at this stage kill freedom of information.

I want finally to refer to a man on the Age, Paul Chadwick, who has taken a continuous interest in this subject, as has the Canberra Times. Apart from that, unfortunately, the Press has not taken sufficient interest. In an article on 24 May called `Freedom of Information-An infant in danger' he pointed to the Americans, and I could have referred to American publications to show that the very same internal attack is made in America by charges, by the same methods as is made by the bureaucrats in this country, backed by the present Government. Paul Chadwick pointed out:

Since 1980, the attack has intensified and amendments which would dilute access rights are at present being pressed on Congress.

But the US FOI Act is a strapping 19-year old which the politicians and bureaucrats are finding hard to tame. FOI has developed a bodyguard of beefy supporters to defend it, including powerful media groups and public interest bodies such as Ralph Nader's.

I wish we had such groups here. Paul Chadwick continued:

By contrast, the Australian FOI law is barely two years old, poorly understood and not a widely recognised social ``good''. If we are not careful, the politicians will smother it in its infancy.

That calls for politicians today not to smother it but to ensure that we throw out this regulation. The Government can then come to the Senate Committee, produce the evidence and we can decide whether any action is needed. I hope that we will prove ourselves to be worthy of the merit of the Senate and the reputation which it has gained over the years of being vigilant on questions of the rights of the individual. The Senate passed this Act; let us now preserve it by passing this motion.