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.