There’s something positively Orwellian about the government’s Freedom of Information Amendment Bill 2025 — a bill alleged “to improve the operation of the Freedom of Information framework”. The word “improve” is doing a lot of heavy lifting there, and being stretched to “dramatically undermining” and even “nullifying”.
Ostensibly the bill is the implementation of a number of recommendations made to then-Attorney-General Mark Dreyfus back in 2013 by the late Allan Hawke. The veteran public servant undertook a detail review of Freedom of Information (FOI) laws in the wake of John Faulkner’s reforms in 2009. Faulkner, as special minister of state in the Rudd government, implemented the biggest overhaul of FOI since the laws were introduced under Malcolm Fraser, significantly expanding their scope and challenging the public service to front up to greater transparency.
But this bill from Attorney-General Michelle Rowland — Dreyfus’ successor in the diminished AG’s portfolio after Dreyfus was dumped — is an insult to Faulkner and, really, to the memory of Hawke. Here’s just three examples:
Rowland proposes to restore application fees of up to $50 per FOI application. Faulkner abolished application fees and reduced processing and appeal fees. In an example of how Rowland is happy to invoke Hawke’s review when convenient but ignore it otherwise, Hawke explicitly recommended that application fees not be restored: “Removal of application fees for all FOI access requests was a key part of the FOI reforms, a reform that the Review agrees with,” he wrote.
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If an application fee is a nuisance tax designed to make it more expensive to shine some sunlight on government, the proposed change to the cabinet exemption is intended to halt large numbers of applications in their tracks. Rowland proposes to amend the current requirement that documents that have the dominant purpose of Cabinet consideration be exempt from release to a requirement that any document that has a substantial purpose of Cabinet consideration can be exempted.
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This means classes of documents currently available will no longer be available, including documents prepared because a matter might go to Cabinet, and documents prepared not for Cabinet but merely to brief ministers on “Cabinet considerations” — which includes anything that might be mentioned in Cabinet, not the items on the actual Cabinet agenda. Consultants’ reports and other attachments to Cabinet submissions will now be exempted too.
This is a direct reversal of Faulkner’s reforms: he had, to the undoubted annoyance of his colleagues, curtailed the ability of ministers to use Cabinet confidentiality as a basis for exemption by establishing the “dominant purpose test” — prior to that, anything that went to Cabinet was automatically exempt, regardless of what it was or whether it was specifically created to inform Cabinet consideration. And, again with the cherrypicking of Hawke’s review: Hawke recommended only that the Cabinet exemption be tightened with some definitional changes but otherwise left intact.
Then there’s an attack on FOI that is really about the whole philosophy of transparency. Rowland’s bill would insert into the bill a “public interest” test that would allow ministers to determine that the public interest was not served by releasing documents. And one of the bases for that test would be that “disclosure would or could be reasonably expected to prejudice the frank or timely discussion of matters or exchange of opinions between participants in deliberative processes of government”.
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This is the crystalisation of a routine claim from senior public servants that FOI impedes their ability to convey “frank and fearless advice” to ministers. But it’s nonsense. The tradition of frank and fearless advice is surely, as Faulkner noted, more robust than that. And, invoking the former Commonwealth Ombudsman and dedicated transparency advocate John Wood, Hawke noted
This Review inclines to John Wood’s view that officials should be happy to publicly defend any advice given to a minister and if they are not happy to do so then they should rethink the advice.
Coming from Allan Hawke, who worked at the most senior levels and in some of the most sensitive positions of the Commonwealth bureaucracy under both the Coalition and Labor, this statement was a powerful endorsement that frank and fearless bureaucrats, to the extent there are any left, have nothing to fear from FOI.
But Albanese-era Labor is ignoring that, and insulting Faulkner by reversing his reforms. Faulkner brought FOI into the early 21st century, with grudging support from his colleagues in the Rudd cabinet. Now, not merely has Labor’s only advocate for better transparency and governance, Mark Dreyfus, been dumped, but Albanese-era Labor is now demolishing the good work of its Labor predecessors.
There’s also an unmistakeable stench of hubris about this. This is a government set fair for another two terms thanks to the chaos and incompetence of its opponents. It is seizing the chance to reduce the transparency to which it is subject even further, having already surpassed the previous government in its hostility to FOI. Instead of using its huge majority and political dominance to achieve real reform that might cost political capital, it is using it to protect itself against accountability.
Labor’s come a long way in 15 years — a long way down.
Tomorrow: How Labor is gaslighting us on FOI, and what you can do to fight back.
