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Wednesday, 13 November 1985
Page: 2051


Senator GARETH EVANS (Minister for Resources and Energy)(11.26) —Naturally the Government will defend its regulations against the attack which Senator Missen has launched upon it today. It is an attack which he has launched without any support from the Senate Standing Committee on Regulations and Ordinances, the Senate's watchdog and protecter of civil liberty principles, the rights of the individual and all of the values which Senator Missen alleges are put at risk by the terms of this regulation. It is very important that the Senate approaches this regulation against a background of appreciating that its own watchdog has failed to rise and bark with anything like the enthusiasm that Senator Missen has brought to this task.

Let me explain why the Government believes that its regulatory package and its amendments to legislation are entirely defensible. On 19 June 1985 the Attorney-General (Mr Lionel Bowen) announced the new scheme of charges for requests made under the Freedom of Information Act. The Government's decision to introduce the new scheme of charges was one of a number of hard decisions which it had to make in the context of its May statement. As honourable senators will know, the Government's Budget strategy is to contain costs. There are significant expenses in administering the FOI Act and the clear object of the Government's decisions was to contain those costs while seeking to maximise disclosure of information.

The cost of operation of the Act was nearly $18m for 1983-84 and about $19m for 1984-85. In both years agencies charged for about only 5 per cent of FOI requests, collecting only $13,500 in 1983-84 and about only $22,000 in 1984-85. These low figures can be attributed partly to agency reluctance to calculate charges in complex situations or where recovery would be costly, and to the provisions in the Act for the remission of charges. Mainly they are attributable to the fact that a large percentage of requests-over 80 per cent-were for personal case files for which no charge would be made under the previous regulations unless over 100 pages were involved. Moreover, as now, agencies were not permitted to charge for decision-making time. Against that background and mindful that the object of the Act-access to--


Senator Haines —In the case of some matters that is probably a good thing.


Senator GARETH EVANS —Things have improved slightly in that respect since the previous regime. Against that background and mindful that the object of the Act-access to information-does not require full administrative cost recovery, the Government decided that there was scope for rationalisation of the scheme of charges. This occurred in two steps: Establishing a clear policy on charging for requests and reviewing the level of charges. In my view this approach is consistent with the provisions of the legislation and provides an equitable balance between those who can afford to pay for access to documents and those for whom the imposition of charges would be so onerous as to deter the exercise of their rights under the Act. Perhaps I could illustrate this by reference to some important features of the new scheme.

Firstly, under the new scheme the Government has made it a firm policy that requests by applications seeking access to documents related to all Commonwealth income support payments, such as social security and repatriation pensions and student allowances, are processed free of charge. For these people the new scheme operates more generously than the old charges system in the case of requests requiring large numbers of photocopies-that is over 100 as I mentioned earlier-or access to other forms of documents.

In other cases, consistent with its Budget strategy, the Government considers that persons wanting access to government information not ordinarily made available without charge must expect to make some contribution. In this respect it is worth remembering that the average cost to agencies of processing a freedom of information request was over $900 in 1983-84 and nearly $600 in 1984-85. Although this decrease shows what might be understood as a pleasing improvement in agency efficiency, comparison with collected revenue-about $17 per request where a charge was levied in 1983 and $15 per request in 1984-85-suggests that there is some room for a substantial increase in revenue. Accordingly, the Government has decided that, apart from those dependent on income support payments, there should be no automatic remission of charges.

Nevertheless, all applications for remission of charges must be considered in accordance with section 30 of the Act. Thus, consideration will continue to be given to remission where charging would cause financial hardship, where the document relates to the personal affairs of the applicant or where release of a document is in the public interest. Each application for remission of charges is treated on its merits taking those three factors into account along with any other relevant considerations. The Government considers that the remission provisions, sensibly applied, should avoid any situations where applicants deserving of free or reduced cost access might otherwise be disadvantaged by the imposition of charges.

The Government considers that there was ample justification for the decision to increase the level of charges set out in the regulations. The former charges of $8 administration fee and $12 per hour for search and retrieval time expended in processing a request were based on 1982 estimates which took account of the cost of handling requests incurred by officers performing duties ranging from low clerical assistant levels to middle clerical administrative levels. At that time it was expected that most FOI requests would be handled by such officers. In practice this has not been the case, as has been evident from the costs of administration of the Act. The key FOI officer in the majority of agencies regularly handling requests is a more senior clerical administrative officer. The increase in the level of charges for the administration fee and for search and retrieval reflect this and increases in salary levels. They also include a component for overheads. Similar considerations apply to the increase in the charge for supervision time.

The increase in the charge for transcription is consistent with rates now charged by the Commonwealth Reporting Service. The photocopy rate of 10c per page remains unchanged. As I have said, the Act, of course, continues to provide that applicants are not required to pay for time spent by decision makers in examining documents for exempt matter.

Senator Missen has made much of the alleged deterrent effect of the administration charge. From what I have said, it will be clear that the vast bulk of applicants-those on income support payments-will automatically be exempted from this charge. Furthermore, proper consideration will be given to remission of the charge in other cases consistent, as I have described, with the provisions of section 30 of the Act.

Senator Missen also maintains that requiring people to pay substantial deposits before requests are processed-therefore, before people know that documents relevant to their request exist and will be released-is a way of discouraging the use of FOI because the deposit need not be refunded if any documents located are exempt. However, it must be recognised that locating documents can consume substantial amounts of time and therefore represents a substantial cost to the public purse, often far exceeding any deposit which has been required. Costs are sometimes incurred in ways which are wholly at odds with the spirit and principles of the legislation. I think a spectacular example of the way in which costs are sometimes incurred in a way which is wholly at odds with the spirit and principles of the legislation appears in the report tabled yesterday in the Senate of the Department of the Special Minister of State.

The report referred to a single freedom of information request by a Federal politician costing about $20,000 in staff salaries and photocopying which so far has taken more than 13 months to process. The request, of course, although the man is not identified in the Special Minister of State's report, came from a former Liberal Minister, Mr Newman. That request involved some 10,000 folios covering a variety of documents concerning overseas travel by parliamentarians. Mr Newman, I think it might reasonably be said, even to the satisfaction of Senator Puplick or Senator Missen, was not seeking to enhance his or anybody else's knowledge of government or of the decision-making process. What he was about in that exercise was simply to find something which might conceivably have proved or been seen by somebody to be possibly embarrassing to political opponents.

That is absolutely and manifestly at odds with the spirit of the freedom of information legislation. Nobody is suggesting, and I certainly do not want to be taken this way, that access of that kind ought not to be continued to be sought, only that where access of that kind does involve enormous costs to the public purse that is a clear cut example of a case where charges might reasonably be imposed, as they are now able to be imposed under the present legislation. I think it is also to be noted that the Attorney-General's Department has been encouraging agencies to consult with applicants to help them to limit their requests to documents they really require and thus to help minimise the charges and costs involved. The reports are that in the case of complex and therefore potentially expensive requests, applicants are finding such consultation helpful. The intention is not to deter any request which can be regarded as reasonable or consistent with the spirit of the legislation.


Senator Peter Baume —That is the effect it is having.


Senator GARETH EVANS —I do not accept that. I finally mention that the disallowance of these regulations will not of itself affect the Government's policy that exemption from charges should not be automatic but only occur where a ground specified in the Act has been made out. The policy is applied through administrative direction and does not rely on any provision in the Act or its regulations. We came to office with a firm commitment to broadening the rights of citizens under the Freedom of Information Act. That commitment has been met. The Freedom of Information Act was significantly amended in 1983, very shortly after we came to office, with respect to Senator Missen's previous contribution, to extend as far as possible the rights of access provided by the Act. The Government's action in introducing this new scheme of charges does nothing to retract from that commitment; nor does it exceed its powers conferred by the Act.


Senator Durack —You didn't do anything about your conclusive certificates which you used to make such a song and dance about in Opposition.


Senator GARETH EVANS —I performed massive and heroic feats, of which I remain extremely proud to this day, given the circumstances of that particular legislation. I think a little bit of grace on this occasion would be appropriate to acknowledge the force and extent of that contribution. I draw attention to a number of government initiatives announced on 14 June, at the same time as we announced our intention to promulgate this fee rationalisation, which further increase the public right of access to government information. Requests for non-contentious material are not to be refused simply because technical grounds of exemption are available. We stated clearly and unequivocally on the public record that that is the way the Act will be administered. Agencies have to clear with the Attorney-General's Department any appeal they wish to contest before the Administrative Appeals Tribunal. This, which will be a spectacular innovation in the context of some departments, discourages agencies from unjustifiably deterring applicants, understandably fearful of difficult proceedings. Again, wherever practicable, material likely to be the subject of frequent requests is to be made available for purchase by members of the public. Again, no right of access of any kind has been taken away. Again, emphasis, as I have already mentioned, has been placed on consultation with applicants to help them meet their needs.

To summarise, the thrust of the Government's recent decisions is to maximise the disclosure of information while containing the overall costs of administration of the Freedom of Information Act in line with the Government's Budget strategy. If Senator Missen's amendment does succeed, the reduced charges will primarily benefit not those whom the Act was designed to assist, it will primarily advance not those principles which the Act was designed to advance; it will assist those who will not suffer hardship if they were charged, it will assist those who have no personal stake or involvement in the matters about which they are seeking information, and it will assist those who are not seeking information of public benefit. For all those reasons, I urge the Senate to reject the disallowance motion moved by Senator Missen.