The Freedom of Information Amendment Bill 2025 (“Amendment Bill”) has been the subject of much discussion since it was unveiled a fortnight ago. Deservedly so, for, amongst other things, the Amendment Bill includes provisions which enables people to be charged for accessing documents released under the Freedom of Information Act 1982 (“FOI Act”), and requirements that applicants be identified to lodge a valid request for documents.
The Amendment Bill has been referred to the Senate Standing Committee for Legal and Constitutional Affairs, who are due to issue a report by 3 December 2025. The inquiry will be accepting submissions until 1 October 2025. While there is every chance this may lead to substantial changes to the Amendment Bill, the current draft of the Bill reveals something interesting about the government’s approach to transparency; it is very much like our approach to coffee – none is unimaginable, some is good, too much leaves us jittery, paranoid and unable to operate effectively.
In this newsletter, Moulis Legal’s public and administrative law team consider the philosophical change to FOI, as illustrated by the proposed amendment to the “Objects” provision of the FOI Act.
“Sure, transparency is good, but…”
The Amendment Bill proposes to amend the object of the FOI Act through the alteration of of s 3(2). At present, the relevant subsection states:
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
The Amendment Bill would change this to include the following stated parliamentary intention:
while, at the same time, providing safeguards to ensure the protection of essential private interests and the proper and effective operation of government.
These “Object” provisions are often overlooked in the day-to-day – an individual who requests access to a Senate Estimates Brief concerning “Unidentified Anomalous Phenomena”[1] is likely not too bothered about the parliamentary intent of the mechanism through which that information can be accessed, so much as they are concerned about phenomena that is somehow both “anomalous” and “unidentified”. But in a legal sense, these provisions can have a significant impact – an explicit change to the intent of legislation is a notable thing indeed.
Parliamentary intent in the limelight
Parliamentary intent is important. Oftentimes, it contributes to the implication of terms within legislation, be they relating to procedural fairness, implying threshold of reasonableness on decision-making, or confirming that immaterial legal errors were not intended to upset decisions. The common explanation of statutory interpretation is that it involves a consideration of the text, context and purpose of the provision that is sought to be interpreted. Put simply, if you are not considering purpose, you may not be interpreting things correctly.
So too it is with the FOI Act. In the High Court Decision in McKinnon v Secretary, Department of the Treasury, Hayne J noted the provisions of the FOI Act “must be construed in a way that promotes the object of the Act” and, pointedly, “in a way that promotes access to documents in the possession of a Minister or Department”.[2]
In its present form s 3(2) of the FOI Act, has a material impact on the way in which decisions are made. For example, that section was directly recent to the outcome of one of the appeal grounds in the recent decision of Bachelard v Australian Federal Police.[3] In this case, the applicant had sought certain documents from the Australian Federal Police. The release of documents had been denied by the Administrative Appeals Tribunal (“the Tribunal”) under, amongst other provisions, s 47F of the FOI Act. This section provides a conditional exemption where the disclosure of documents would involve the unreasonable disclosure of personal information about any person. This exemption is conditional, in the sense that access will still be given to such documents unless it is contrary to the public interest.
In determining whether the disclosure of personal information would be “unreasonable”, the Tribunal noted:
[N]o public purpose would be achieved through release of the information, but rather, it would have an adverse effect on management of personnel and on AFP operations, as I have found above…
The Federal Court took issue with this, a conclusion that was based to some extent on the content of s 3(2):
Implicit in s 3 is a recognition that the promotion of scrutiny, discussion, comment and review of the activities of the Commonwealth government and its agencies, and the conduct of those performing functions on their behalf, is a public purpose. The disclosure of information about those activities and that conduct serves that public purpose.
In other words, there is a recognition that disclosure of government documents can, in itself, have a public purpose, and that purpose needs to be weighed in assessing whether disclosure of personal information was “unreasonable”. That does not mean the documents could or should ultimately be disclosed – disclosure may still be unreasonable, or may be contrary to the public interest, but the perception that there was “no” public purpose in disclosure was a fundamentally incorrect proposition. At the heart of the FOI Act is the concept that disclosure can, in and of itself, serve the public interests in “transparency and accountability of government agencies and public officers”.[4]
What the amendment does is explicitly counterbalance such interests against “essential private interests” and, more ambiguously, the “proper and effective operation of government”.[5] How this may play out in future litigation remains to be seen. But one cannot help but note the tension the amendments imply exists between “scrutiny, discussion, comment and review of the Government’s activities” and the “proper and effective operation of government”.
Disclosure remains an uphill battle
The FOI Act is complex; nothing in the Amendment Bill is going to change that. There are obviously legitimate reasons for preventing disclosure of certain information but, equally, there are recognised public interests in transparency. The Amendment Bill is concerned with the former, with little regard to the latter. This is a shame. It is often the case that exemptions are inaccurately claimed or applied too broadly, issues that are not easily redressed. In Bachelard, the Federal Court found that six of eight grounds of review were made out – that is a staggering number in judicial review. These legal errors would have gone unrecognised if they had not been appealed all the way to the Federal Court.
Anybody who has pursued an application knows the significant effort needed to have a matter fully and robustly considered; and to have the public’s interests in transparency and accountability given due and appropriate consideration. It is likely that the Amendment Bill, with its modified intent, and its concerns for unidentified private interests and anomalous government functioning, will make transparency all the more difficult.
And, no, we have not had too much coffee.
As noted, the Amendment Bill has now been referred to the Senate Standing Committee for Legal and Constitutional Affairs, who are due to issue a report by 3 December 2025. The inquiry will be accepting submissions until 1 October 2025.
[1] https://www.defence.gov.au/sites/default/files/2025-04/Defence_FOI_772_24_25_Documents.pdf
[2] (2006) 228 CLR 423; [2006] HCA 45.
[3] [2025] FCAFC 5.
[4] Ibid paragraph 235.
[5] One of the amendments, which we will not spend too much time considering, would make it easier to exempt the disclosure of information arising from “government deliberative processes”. However, the terminology used in the proposed amendments to s 3(2) appears to go beyond this.
