John McMillan says FoI Act ‘can suitably apply to any agencies, parliamentary departments and the intelligence agencies’

This article is more than 6 years old

This article is more than 6 years old

Australia’s information commissioner has called for intelligence agencies to be subject to freedom of information laws and has expressed concern about “mixed messages” on open government and transparency.

In a wide-ranging interview with Guardian Australia on the state of privacy and freedom of information in Australia, the information commissioner, Professor John McMillan, said intelligence agencies should be subject to freedom of information (FoI) legislation.

“My preference would be at least for the FoI Act to apply to the intelligence agencies,” he said.

“I think the FoI Act can suitably apply to any agencies, parliamentary departments and the intelligence agencies. The exemptions are adequate to protect whatever has to be protected.”

Currently, the Australian Security Intelligence Organisation, Australian Secret Intelligence Service and the Australian Signals Directorate are all totally exempt from FoI laws. In the US the Central Intelligence Agency and National Security Agency are both subject to FoI laws.

But McMillan added he was not confident changes would be made to freedom of information laws.

“I’m also realistic and do not put a lot of time into arguing that case because I think it unlikely in the near future that there’s going to be any change,” he said.

He added that the inspector general of intelligence and security was an effective oversight for intelligence agencies.

The Greens senator Lee Rhiannon said the issue needed to addressed by both major parties, which had resisted moves to make intelligence agencies subject to FoI in the past.

“Like many western countries we recognise there is a real need for intelligence agencies to be subject to freedom of information,” she said. “In the present international climate it’s underlined even more, and also with the huge increase in the budget.”

The comments follow Guardian Australia’s revelations in November last year that Australia’s spy agencies targeted the phone of the Indonesian president, Susilo Bambang Yudhoyono, and his wife, based on documents from the NSA whistleblower Edward Snowden. Further documents also showed that intelligence agencies offered to share bulk unredacted metadata of Australian citizens.

McMillan also expressed his disappointment that both houses of parliament were now exempt from FoI laws, after moves by both major parties to block access to documents in May last year.

“I see a lot of mixed signs and I hear a lot of mixed messages," he said. "I’ve no doubt that the 2010 reforms, in combination with the open data revolution, have substantially improved open government in Australia.

"But I was disappointed that the parliament amended the act to exclude the parliamentary departments before the Hawke report.

“My concern always is that in the middle ranks of agencies if they get conflicting messages we won’t get this strong commitment to open government that I think is important.”

The commissioner also said the resources given to his office were not enough to deal with the increased caseload of freedom of information work, which meant agencies could be “gaming the system”. It now takes close to 200 days to allocate an application for information commissioner review.

He said: “I’m not going to name individual cases, but I have a great concern that agencies will say, ‘Let’s just deny it. The person can appeal to the OIC, it may take them a year or two to get around to it,’ in which case the sensitivity will go out of the issue.

"I accept that that happens at the moment. So there is gaming of the system going on.”

McMillan said he had prioritised a number of review applications for incoming government briefs. Many government agencies have blocked access to the briefs since the Coalition took office last year, at odds with the practice in previous years.

“We’ve got all these cases about incoming government briefs at the moment,” he said. “It took me two years to decide the last incoming brief case. I’m committed to getting it decided a lot earlier, and they’ve been moved to the front of the queue.”

The attorney general, George Brandis, said: "The government is closely considering all recommendations of the Hawke review."