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FINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE - 15/02/2010 - Freedom of Information Amendment (Reform) Bill 2009

CHAIR (Senator Polley) —The committee will now commence its hearings into the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009. The purpose of the bills is to promote both greater openness and a pro-disclosure culture across government and to establish three related, independent statutory officeholders. I welcome our first witness, Associate Professor Paterson. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. The committee has your submission. I now invite you to make a short opening statement. At the conclusion of your remarks, I will ask committee members to put their questions to you.

Prof. Paterson —Thank you for the opportunity to appear before you. I want to begin by saying that overall I think the package is terrific. What I want to do, though, is pick up on some of the key points in my written submission which highlight deficiencies. I want to start off with the provisions which lack public interest tests. Firstly, and most significantly, I want to argue that in my view it is a very retrograde step to amend the act from the version in the exposure draft of the business affairs exemption provision. ‘Trade secrets’ has been broadly interpreted in the case law. The other test relates to the possibility that the commercial value of information may be diminished. There will be circumstances where there are very strong public interest factors that might suggest that sort of information should be made available. That is likely to arise in a scenario where you have external contracted service providers and other business dealings, and I would argue very strongly that that public interest test should be retained. A related issue, the breach of confidence provision, which I pick up in my paper, currently lacks a public interest test. That is that the effect that an agency can contract out to create an obligation of confidentiality to protect dealings.

The cabinet documents provision is considerably improved but still very much a category based test that does not really focus on the issue at hand, which is the damage to collective responsibility. I has no exceptions and no time limit. I would suggest that at the very minimum you could have, say, an exception for fact based information and certainly some sort of time limit, such as the 10 years that you see in other legislation.

In the case of exemptions that are subject to public interest tests, I would like to highlight the potential difficulties that come from the double-barrelled tests of reasonableness and public interest that occur for business affairs and personal privacy. That is going to add a level of complexity. The reasonableness test has been previously construed as a public interest test, and it may have the paradoxical and I think unintended effect that it will be harder for people to claim their privacy interests. In other words, it is going to be detrimental to those interests. If they are going to be retained—for example, in relation to the privacy exemption—at least there should be something in the list of factors that attaches more significance to third-party privacy interests.

The definitions of the factors that cannot be taken into account in the public interest provisions are a very positive step. There is an important one missing, which is the candour and frankness issue. I understand that that goes to the heart of the provision, but there is some scope to provide for a narrowing of it so that it is claimed only where it can be proven. Possibly one way round that is for it to be dealt with in the guidelines, but it would be preferable if it could be dealt with in the act itself. It has been a very problematic issue.

In terms of the scope of the act, I would like to highlight the issue as to why bodies need to be exempted totally from the act’s operations when the harms that might result from the disclosure of their documents should logically be capable of being dealt with by the exemption provisions. That is an issue when you have security agencies and so on and where it is very important that people have public confidence that there is some transparency. The scope of the act applies to documents rather than information, and that is problematic given that there have been no changes to the Archives Act which require agencies to fully document all of their key decisions and policies, as was recommended by the ALRC. So at the moment there is no way of requiring documentation and then access.

10:09:30Moving on to procedural aspects, I think there is a problem with the fact that there has been no shortening of the time limits. They are quite long in comparison with other laws. I think they do create a real issue, especially, for example, for media organisations. If journalists are going to use the FOI Act they need to have timely access, and there is no provision—any sort of provision—for expedited access as, for example, occurs in the United States. If the act is going to work and achieve its objectives it is really important that the media uses it, and that there is no very major disincentive to media use.

In terms of the publication requirements, I think they are really, really important. In the past with publication requirements there has not been a very high compliance rate. There do not seem to be any consequences for not complying, although at least you now have oversight by the Information Commissioner. Also, although there is scope for the detail to be provided in guidelines, there is no timeline for that, and I think that is something that ideally would happen sooner rather than later.

Finally, I would just like to point to the issue of applicants who need to use the FOI regime rather than the privacy regime for documents in which they have some particular personal interest—there are personal factors that add to the public interest in the disclosure of those documents to them, or at least detract from the public interest factors that go the other way. At the moment, the way section 11(2) of the act is set out, those factors cannot be taken into account. There are ways of dealing with that that mean that where there are positive factors they could be taken into account without undermining what is a very important underlying philosophy of the act—that people do not have to justify their disclosure.

CHAIR —I have one question before I hand over to committee members. In relation to the changes that this legislation is bringing about, would you agree that it is a cultural change from the changes under the Howard years, when it was far more predominant within the Public Service for secrecy? Do you see this as a good step forward?

Prof. Paterson —Absolutely. I think this has the potential to make a great deal of difference. It will also take a change in terms of policy in the way in which the act is administered, but I think this is a very, very positive way forward.

CHAIR —And there are further steps yet to be taken?

Prof. Paterson —Absolutely. I do not think this act is by any means ideal. But it is a tremendous improvement, and I think there are steps outside of the act in terms of internal policy; that are really fundamental.

CHAIR —Is there anything that you want to put on the record in relation to the structure, now, with the Information Commissioner? Do you have any comments about how you see that operating?

Prof. Paterson —It is early days. I know there are issues about the appeal structures. I think there can be potential problems, such as the fact that agencies can appeal and therefore increase the costs. There is the issue of the onus in the AAT, but I think in general terms the structure of having the overall information commissioner and the two other commissioners is an excellent idea, and I think it has the potential to work well.

CHAIR —Thank you. Senator Ryan.

Senator RYAN —Thank you, Chair, and thank you for the commentary opening up your first question. We can continue down that path for the rest of the day, if you would like. Professor Paterson, I refer to your last comment and your answer to Senator Polley on the onus of proof issue—which was raised in an earlier committee earlier hearing, particularly by the Law Council of Australia. According to, I think, Mr Robinson’s knowledge, no similar amendment had been put in place to any FOI regime anywhere in the world that has a similar regime to reverse the onus of proof to the applicant for the information in the AAT. Do you not consider that to be a fairly substantial change? Mr Robinson outlined that, if all these other processes fail, we are going to have an applicant going to the AAT without access to the information to determine whether or not they should have access to the information. There is a huge information asymmetry there, isn’t there?

Prof. Paterson —There is. I would hope that most appeals would be able to finish at the Information Commissioner if this works well.

Senator RYAN —Most people would.

Prof. Paterson —But, once you get to that point, then certainly that is a massive issue.

Senator RYAN —The exposure draft did not change the onus of proof, did it?

Prof. Paterson —No.

Senator RYAN —Would reversing the onus of proof be a ‘retrograde’ step, a term I think you used earlier in your verbal submission?

Prof. Paterson —Yes, I think it would be. How serious that turns out to be really depends on to what extent applicants need to go on to the AAT. But if you are going to have an AAT review and you are going to reverse the onus, then you are going to make it very difficult for applicants to make use of it.

Senator RYAN —The AAT is a safety net, if other systems fail?

Prof. Paterson —That is right.

Senator RYAN —It would strike me as fundamentally undermining the aim of the original FOI Act, let alone of the current proposed amendment to it. If other processes fail, if they do not work or there are disagreements all the way through, we would then have a situation where, as I understand it with proceedings at the moment—I am happy to be corrected—if an applicant before the AAT seeks information and an agency or government determines that information should not be released, the AAT can hear the government’s submission with the information without the applicant present.

Prof. Paterson —That is right.

Senator RYAN —That is a reasonable safety valve to protect confidential information. But if a person has been knocked back by the commissioner and then goes to the AAT, they do not know what they are looking for. The government knows what it is looking for. The person then has to prove that something they do not have, and do not have a description of, is in the public interest. This strikes me as an almost impossible burden of proof to bear.

Prof. Paterson —It totally minimises the value of the safety net, in that range of situations where you have information of that type. A lot of the appeals probably would not involve information of that type, but where they do it effectively removes the safety net.

Senator RYAN —You and a number of submitters have mentioned that this bill is aimed partly at changing the culture, and you obviously have some expertise in this area. What cultural elements need to change and what aspects of this bill do you think are going to change the culture within government and agencies to a pro-disclosure culture?

Prof. Paterson —Obviously, what you need is a pro-disclosure culture. There are some elements—for example, the additional protection that is given to people who release where the document is exempt. That kind of thing helps. The rephrasing of the objects clause helps. Some of the other changes in terms of procedures and so on help. Ideally, what you would have in the act would be a stronger statement of that pro-disclosure.

Senator RYAN —A stronger statement than in the current draft?

Prof. Paterson —Yes.

Senator RYAN —Was that changed between the exposure and the current draft?

Prof. Paterson —No. Perhaps some of those things can be looked at when it is reviewed. For example, if you look at the Queensland act, there are stronger provisions in that which take you in that direction.

Senator POLLEY —That seems to be working very well. According to the evidence previously given to this committee the Queensland system is working very well with the change in the culture.

Prof. Paterson —That is right. I think the Queensland act actually provides a very good model. This goes part of the way towards that.

Senator RYAN —The Queensland act goes further, does it not?

Prof. Paterson —It goes much further.

Dr WASHER —I will just ask a technical question to finish up. There was some discussion at the first hearing about whether internal review should be an optional or compulsory step. Do you have a view on that particular issue?

Prof. Paterson —On balance, I favour it being optional. I think an internal review can certainly be of value in terms of changing processes within an agency, providing a quick and easy form of review, but I think there are circumstances where it is going to slow down the process. Where time is of the essence and where you have to go through that first, that would be a disadvantage to applicants. So I would favour, on balance, it being optional.

Senator RYAN —I understand this bill contains certain privileges, through time not being charged for journalists or public interest organisations.

Prof. Paterson —Yes.

Senator RYAN —I am not familiar with whether the bill has a definition of public interest organisations and how they are to be determined. Are you familiar with that?

Prof. Paterson —I am sorry, I have not got that before me.

Senator RYAN —That is okay. It is just a question that your comments raised with me.

Senator KROGER —Good morning, Professor. In your comments on publication requirements you indicated that that was one of the areas you were most disappointed with in terms of the fact that there was no requirement for those publications to be centrally coordinated. Could you expand upon that?

Prof. Paterson —I wouldn’t say it is one of the ones I am most disappointed with, but I think it is a very important area and I think therefore that it is important to get it operating as soon as possible so that people are very clear what needs to be published. It is also very important to have very clear consequences for failure to comply with that and I think there is an ability there for the Information Commissioner to issue guidelines that will clarify the content, but there is no time line on that. Similarly, the Information Commissioner will be responsible for making sure that that system works—that there are no clear consequences or pathways or responsibilities where that is not being complied with. And I think proactive disclosure, what could be termed push rather than pull, is a very, very important element of modern FOI—that you try and push out as much as possible rather than requiring people to push it in. Therefore that is a very important aspect of the bill and it would be helpful if those aspects could be further strengthened.

Senator KROGER —So you think the compliance mechanism could be substantially strengthened otherwise the effectiveness of that publication’s regime, those requirements, could be somewhat diminished.

Prof. Paterson —Yes, and it is not just the Commonwealth but other state acts. That has been a part of those acts that really has not been very strongly complied with in the past and I think it is important to send out that message and to fairly clearly spell out what should happen if those requirements are not complied with.

Senator CAMERON —Professor, you indicated in your opening submission that the bill was a terrific package overall. Nothing you have heard this morning changes that view, does it?

Prof. Paterson —Nothing I have heard this morning, no. As I say, it is making some very long overdue changes to the act that will considerably improve it. That is not to say there could not be a far better package overall that would go even further, but I think it is really important that it does get enacted.

Senator CAMERON —So rights for ordinary citizens have improved under this act compared to, for example, the previous decade?

Prof. Paterson —This act has the potential to improve their rights, yes.

Senator CAMERON —On the issue of the reverse onus of proof, the Administrative Appeals Tribunal is a judicial body—

Prof. Paterson —No, it is an administrative appeals body.

Senator CAMERON —But it is usually senior legal people who are on the AAT?

Prof. Paterson —The presidential members can be judges or lawyers. The ordinary members are not lawyers.

Senator CAMERON —Right. Is the reverse onus of proof used elsewhere?

Prof. Paterson —Not that I am aware of. I have not looked at this issue very closely but I am not aware of the reversal of the onus of proof.

Senator CAMERON —The reverse onus of proof is not a fundamental flaw for the bill, is it? It is a last resort issue and the bill could benefit many people until it comes to this issue where you are saying there could be a problem?

Prof. Paterson —Yes. I would put it that way. It minimises the usefulness of the safety net in a small range of cases where the applicant would not have any potential to understand the basis for the decision. They may be very important cases but it would be a tiny proportion, I would hope. It is very much dependent on how the Information Commissioner review mechanism works. If that is working really well, it becomes a minimal issue. If it is not perceived to be working well, if a lot of people are wanting to appeal, it will be more of an issue.

Senator CAMERON —Is this issue on the reverse onus of proof a reason to reject the bill, do you think?

Prof. Paterson —No. I think there is too much that is important and beneficial in it to reject it on that basis. But if it could be improved, so if that could be changed, then that would be very positive, as with a number of the other points that I have noted.

Senator LUDLAM —Professor, you covered most of my questions in your opening statement. I want to bring you back to the comments you made about wholesale exemptions of specific bodies and agencies. If you were not happy about those, what would be your proposal for getting around those? Can you compare how FOI for security agencies in Australia is proposed to work with these wholesale exemptions maybe compared with some other countries?

Prof. Paterson —Unfortunately, there has been a tendency in most places to exempt bodies. But if you look at different countries different bodies are exempted. In those countries where specific types of bodies are not exempted, then what happens is that the issue that is really being dealt with—for example, if they have commercial information or if they have national security information or whatever it is—is dealt with in relation to an exemption provision, making sure that the exemption provision is worded in such a way that it is effective to protect what it is you are trying to get at. If you look at a lot of the bodies that are exempted it is because there are national security issues. If you look at the act you see it has a very good, strong national security exemption provision or if you look at bodies that have commercial information or other information you will see again there are business affairs and other exemption provisions that would seem to address the issue of concern. What that means therefore is that these bodies are perceived to be outside of transparency regimes, when that does not need to be the case.

Senator LUDLAM —It seems to me to be too broadly drafted in that you would then exclude any of the administrative or internal working documents and those kinds of documents just because the people happen to be handling national security information. I refer to the provisions that you spoke so much about, the provisions around business practices and trade secrets and so on. Do you believe that those clauses are drafted too broadly or do they hit the mark?

Prof. Paterson —That is what I was trying to say in my opening statement. I think that what has happened now is you have got the business affairs provisions divided into two parts. The first part of them, the trade secrets and the information which has a commercial value and which might be destroyed or diminished, is now no longer subject to a public interest test. I think that is very unfortunate because it has the consequence that, for example, if you argue that certain information has a value that might be diminished—which could be just slightly reduced—and you have a situation where there might be some perception of wrongdoing or where you are trying to check the integrity of the process, that information is exempted and that is it. There is then no capacity to consider any public interest factors when this might shed light on a wrongdoing or ensure integrity. I think that is very unfortunate because more and more of the information in government is commercial in nature in some way—government is more commercialised and there are a lot more contracted service providers—so a very large proportion of the documents that are held by government have some sort of commercial flavour to them. To the extent that you allow this exemption you are actually then allowing for a lot of those dealings to be claimed to be trade secrets or commercial information and to be exempt. For example, in the Victorian context there were even claims that information that was shedding light on suicides in private prisons was a trade secret because it went to the actual practices of the private prison contractors. So you can see that that level of breadth is a problem.

Senator CAMERON —On the suicides in prison issue and the Victorian legislation, was that upheld?

Prof. Paterson —The claim was made that the case actually ran on different issues. In Victoria there is a public interest override for the VCAAT, the review body. So if overall it is in the public interest for information to be disclosed it can order its disclosure even though it might be exempt under the business provision. I raise that because what is viewed as being potentially a trade secret or information having a commercial value is more and more intersecting with what I think ordinary people would view as being something of public concern or something that ought potentially to be transparent. These are not narrow terms in the concept of trade secrets that you might get in a normal legal context.

Senator LUDLAM —Let me pick up that. Is there anything in the proposed Commonwealth legislation that would provide a similar sort of override or public interest test?

Prof. Paterson —Is there anything in the current Commonwealth legislation?

Senator LUDLAM —Yes.

Prof. Paterson —No, there is not.

Senator LUDLAM —Or in the proposed legislation that is before us? Is there anything that would work in the same way?

Prof. Paterson —No, there is not. The Victorian act is unique in having that procedure. It is a very useful procedure that the review body can ultimately disclose certain documents. Not all of the exemption provisions but a number of the exemption provisions it can overrule in the public interest.

CHAIR —Thank you very much for your submission and for appearing before us today. We appreciate your time.

 [10.33 am]