27 Jun 2014

Govt Takes Fresh Steps To Block Release Of Free Speech Docs

By Max Chalmers

Turns out freedom of speech is neither free nor all that desirable... at least not if it diverts precious government resources. Max Chalmers reports.

The Attorney General’s Department has taken fresh steps to prevent the publication of submissions made as part of its public consultation on ‘free speech’ reforms, denying a public request for access to the documents on the grounds it would require an ‘unreasonable diversion of government resources’.

Last month, Deakin University law lecturer James Farrell lodged a Freedom of Information (FoI) application seeking access to more than 5,000 submissions received by the government on the proposed watering down of the Racial Discrimination Act (RDA).

That draft legislation – which would remove a clause which makes it illegal to ‘insult, intimidate or humiliate someone on the grounds of their race or ethnic origin’ - was put forward by the Abbott Government after conservative columnist Andrew Bolt was found to have racially vilified a group of Aboriginal people over columns he wrote for the Herald Sun in 2009.

Public comment was sought on the proposed reforms, and the Attorney Generals department was swamped, although the government continues to refuse to reveal how many of the 5,557 submissions were opposed to the changes.

Farrell said he lodged the application because of the depth of community concern about the draft exposure bill released by the government.

“Transparent consulting and policy making by government should require that these kinds of submission are made public in the first place,” Farrell told New Matilda.

A letter to Farrell from the Department’s Assistant Secretary, Stephen Bouwhuis informed the lecturer his request would be refused under section 24AB of the FOI Act, which allows agencies to reject requests which will “substantially and unreasonably divert the resources of the agency from its other operations”.

“There are over 5,000 documents, comprised of approximately 7,000 pages, within the scope of your request,” Bouwhuis wrote.

“Allowing an average of five minutes for each document, I have estimated that over 400 hours would be required for officers of the Department to examine each document,” Bouwhuis wrote.

Farrell was unimpressed by the response.

“They were looking at all of the submissions anyway, so the small step of making them available I don’t think is that much extra work,” he said.

“For an issue that’s as fundamentally important for as many people in the community as this is, I think the question of resourcing is a bit of a cop out.”

Bouwhuis’ response also appeared to contradict arguments made by Attorney-General George Brandis when defending his decision not to publish the submissions.

“Examination would be necessary to determining, in relation to each submission, whether or not the author had requested that the submission not be made public,” the letter said.

This aligns with advice provided on the Department’s website indicating submissions could be made public if authors provided explicit consent, which many have.

“Submissions will not be made public without consent from the author,” the website says.

But Brandis previously told a Senate Estimates hearing that submissions had been made on the understanding they would not be published, and that doing so would equate to a breach of trust.

Groups including GetUp! and Amnesty International have been calling for the government to publish their submissions, and those made by others.

Aside from issues of privacy, Brandis has argued that submissions were called in order to inform the government on public sentiment, and that quantifying the number of submission for or against the changes was not necessary.

“This was to solicit views of the community about what was the best way to deal with this matter. We did not embark upon an opinion-polling exercise,” he told parliament.

While any legislation introduced in the future is likely to be forced to face a Senate review, which would publish any submissions it received, advocates such as Farrell still believe the Attorney-General’s Department should have opted to make its own process transparent.

“It’s difficult for the community to have confidence that the government’s policy-making decision reflects the ideas that are put through the community consultation, when we don’t know what’s said in that community consultation,” Farrell said.

As the government continues to ignore requests, other organisations have begun compiling lists of submissions which have been self-published.

The Castan Centre for Human rights has a handy guide here.

The rejection of Farrell’s application comes at a time when serious questions are being raised about how the Abbott Government intends to reform the current Freedom of Information process, with concerns that changes slated for this year could make lodging the applications more complex and more expensive

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Posted Friday, June 27, 2014 - 15:21

Brandis is so dim he doesn't even realise the stupidity of his position of secrecy..   Maybe many of the submissions were so rancid and hateful he was ashamed of inciting them.

Iain Davidson
Posted Friday, June 27, 2014 - 15:22

I suggest that New Matilda offers to publish any submissions that people want to submit to them.

Posted Friday, June 27, 2014 - 15:35

Another day, another reason to mock George Brandis.

'Lord' Brandis, freedom fighter extraordinaire, has some pretty whacked out ideas on free speech.

In fact his ideas on free speech, freedom, democracy and simply being a vaguely decent person appear to have more in common with ancient Greece rather than anything useful for contemporary Australia. Put down that silly Chris Berg book George and join a more enlightened, better informed, sense of reality.

They say the paradox of ancient Greece was the rise of democracy and ideal of freedom happily coexisting with growth of slavery. Indeed, those happy Athenians becoming intellectually aroused and zealot like in their speech on the virtues of freedom and democracy did so while increasing the number of slaves they owned.

Freedom and democracy were the play things of a cosy group of oligarchs and to be considered a citizen wasn't a birthright, but rather something conferred by an elitist club of like-minded property owners.

Ancient Greece had much in common with the antebellum American south where one man's freedom was expressed by the violent and degrading suppression of another man's, woman's, and child's liberty.

The exemplar of this hypocrisy is of course Thomas Jefferson the slave owning 'classical liberal'.

At least their is consistency with George Brandis and his warped view of 'freedom'. He belongs to a perverse history of nutters who arrogantly view their sense of self-entitlement as being destructively paramount to any consideration of the integral rights of others.


Andrew Bolt could be labelled many things but I doubt "conservative" is not one of them. A word that describes him comprehensively, that springs to mind, starts with an f and ends with t.  

Posted Friday, June 27, 2014 - 15:41

Hmmm... no edit function after posting. How annoying! Those typos will now trouble me for the rest of the day... Ah - I should use the preview option before getting caught up in my blog contributing excitement.

Posted Friday, June 27, 2014 - 21:09


"A letter to Farrell from the Department’s Assistant Secretary, Stephen Bouwhuis informed the lecturer his request would be refused under section 24AB of the FOI Act, which allows agencies to reject requests which will “substantially and unreasonably divert the resources of the agency from its other operations”."

Rewrite the Act in the Senate.

So we are to understand Brandis' Department is less efficient than the Productivity Commission which handles multiple submissions without protest.

Someone should be sacked for ignoring the mission of the PUBLIC Service. 

This user is a New Matilda supporter. Jang53
Posted Friday, June 27, 2014 - 22:26

You can have mine NM

Posted Friday, June 27, 2014 - 22:43

Rejection under s 24AB is pretty standard for a request of that size. Standard procedure (and s 24AB) should, however, require a consultation process where the agency assists the applicant to reduce the scope of their claim to a workable size. If James Farrell is keen to obtain the documents (and is willing to pay the charges, which I am willing to bet will be considerable even with at least a partial public interest waiver) one method would be to submit a number of requests only seeking a smaller number of the documents.

[Disclaimer: Please note, re the following, that it is just based on my experience, and certainly isn't legal advice or anything of that nature]

For instance, the first request could be for submissions numbered 1 - 300, with further requests for each set of 300 submissions following that. Alternatively, a request could be made for a particular date range (say, the first fortnight after submissions opened, then the following fortnight and so on). It may also be necessary to do some wrangling over the due dates for the provision of the documents under the Act (because the Department is unlikely to be willing to process the request for the full 7000 pages by the 30 day deadline under the FOI Act), but that may just involve some of the requests being done sequentially (a few processed with a July deadline, the next in August etc.). From what I recall, this sort of splitting of requests is standard practice in other departments and should provide access to the documents.

If you just want the raw statistics, a request could be put in for all submissions in relation to the Racial Discrimination Act amendments which support the changes, any response to which (provided the request isn't refused under s 24AB for failure to adequately identify the documents in scope) would provide at least some of the information being sought. This could also (judging by the public reaction) massively reduce the number of documents in scope, assisting both with avoiding a s 24AB rejection for the unreasonable diversion of resources and reducing the charges which would need to be paid to access the documents under the Act.

It may sound somewhat ludicrous (and it kind of is) but it seems that's just the way things work under the FOI Act as it currently stands.

Posted Saturday, June 28, 2014 - 04:48

I have only one question. - Are LNP people naturally nasty, or do they have to work at it ? Brandis's reason for repealing 18C is obscene.  People like Murdoch's man Blot should not be helped to shit on people from above. Blot is not elected to dictate poison to the masses.

This user is a New Matilda supporter. Pegi
Posted Saturday, June 28, 2014 - 19:20


Thanks Max for a very good article.


Yes a typo rectification button will be nice. it is really annoying not to have recourse to amending some mistake, editing or changing something.


Posted Sunday, June 29, 2014 - 05:35

If you've got something to hide you need to be able to operate in secrecy.

Posted Sunday, June 29, 2014 - 05:44

The fact that the LNP prefers to operate under secrecy provisions, is a clear indication of intent to deceive the public.  'Stop the boats' is an example of that.  The LNP claims there have been no asylum seeker boat arrivals, however who would know ?  If is not reported, it hasn't happened ? They certainly don't want to be held to account for anything.