There has been much commentary, most of it critical, about federal Attorney-General Michelle Rowland’s recently introduced Bill that amends the Freedom of Information Act by restricting access through measures that will allow undermine a core democratic principles – accountability by government to the people it serves.

The Bill continues the overall trend in Australia towards reducing transparency in government. When the Fraser Government introduced the first Freedom of Information Bill in 1978 (a further 1981 Bill became law in 1982), Rowland’s predecessor, the former Western Australian Senator Peter Durack, said that while “[c]omplete openness of government is not possible. For some purposes, confidentiality is essential. The Freedom of Information Bill seeks to achieve the appropriate balance between openness and secrecy".

That balance can longer be said to be appropriate. While all governments in recent years have made it harder for the community to obtain access to government information, the Albanese Government has been even worse than the previous Coalition Governments. The Centre for Public Integrity in July this year said that the ”Albanese Government is less transparent than its predecessor” with “only 25% of requests fully granted under Labor, down from nearly half in 2021-22".

An examination of the Bill, as currently drafted, tells us something disturbing: that the scope for refusal of requests for information is enhanced.

The Bill defines what is termed a “practical refusal reason” that can be used by ministers and government agencies to say no to requests for information. Under the Bill “a practical refusal reason exists in relation to a request for a document if the work involved in processing the request” would, in the case of an agency, “substantially and unreasonably divert the resources of the agency from its other operations", and in the case of a minister “would substantially and unreasonably interfere with the performance of the minister’s functions”.

One can see this being a very useful tool for governments when, as often and inevitably happens these days because of the complexity of government decision-making and actions, an FOI request seeks a range of documents across government concerning a particular public policy.

Not only that, but the phrase “substantially and unreasonably interfere with the performance of the minister’s functions” is dangerously nebulous. One can just imagine ministers and their offices pulling out this excuse when politically expedient to do so.

A major, and concerning, change proposed by the Bill is to weaken the current test that is used to determine if a document is exempt from disclosure. At present, the bar is whether the document was prepared for the “dominant purpose” of Cabinet consideration. This Bill waters that down – the new bar is lower. It’s the “substantial purpose” test. This, the government says, reflects that “documents may be created for multiple purposes and may disclose sensitive information about Cabinet matters".

Make no mistake, this is a significant change and one that will inevitably reduce transparency because the sweep of documents captured is much greater. The temptation will be for departments and ministers to ensure documents on controversial topics will include phrases that link their content and existence to Cabinet.

This change is coupled with one that says if disclosure of documents “would, or could reasonably be expected to” result in prejudicing frank and timely discussion or provision of advice, then this weighs against release. Even worse is a further factor that says, if “disclosure would, or could reasonably be expected to, prejudice the orderly and effective conduct of a government-decision making process”, then this also weighs against release.

Let’s not forget the Robodebt Royal Commission that revealed how documents were marked “Cabinet in Confidence” to ensure they were not released.

Phrases such as “could reasonably be expected” and “orderly and effective conduct” mean one thing – that the executive arm of government will have the power to push to the limit Shakespeare’s idiom from the Merchant of Venice, that “truth will out”.

And as if these “reforms” were not enough to undermine the right of the community to know what its government does, the Bill allows for charging applicants for documents, internal reviews and reviews by the independent Information Commissioner.

Some state jurisdictions have a fee system in place. And they can deter whistle-blowers, small non-traditional media outlets and NGOs from gaining access to documents. While the application fee might only be $40, if you make 10 requests that’s a big ask.

Last year, a number of groups and individuals, including the Public Interest Advocacy Centre, the Media, Entertainment & Arts Alliance, Transparency International Australia and former senator, now FOI expert, Rex Patrick, wrote to then attorney-general Mark Dreyfus. They rightly noted that FOI “enhances public participation in representative democracy and leads to better quality decision-making through increased scrutiny, discussion, comment and review of government activities”. Given this, the letter argued, the Albanese Government needed to “uphold its commitment to accountability and transparency and urgently fix the deeply broken FOI system".

They, and the Australian community generally, have been ignored. Rowland should turn back and start again. It’s 43 years since FOI came into operation in Canberra, a strike for democracy now undermined by the obsession of modern governments with control.

The views expressed in this article may or may not reflect those of Pearls and Irritations.