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Thursday, 13 August 2009
Page: 4852


Senator LUDWIG (Special Minister of State and Cabinet Secretary) (11:33 AM) —The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009] delivers on the government’s election commitment to remove the powers to issue conclusive certificates under the Freedom of Information Act 1982. Currently, if a conclusive certificate is issued, the Administrative Appeals Tribunal cannot undertake a full reconsideration of the decision to claim exemption. The passage of this bill will ensure that all exempt decisions under the FOI Act and Archives Act will be subject to full external merits review. The removal of the certificates power will therefore enhance public confidence in decisions about access to government information. The removal of the power to issue conclusive certificates does not mean that information that should be protected against disclosure will be released. Where an exemption claim properly applies to a document, the document will not need to be disclosed.

A number of measures in the bill will introduce procedural requirements to be observed by the AAT in the conduct of review proceedings for particular sensitive documents, namely documents whose release could damage national security, defence or international relations, or would disclose confidential foreign government information or cabinet information. These measures do not affect substantive rights of access to documents or records; rather, they are safeguards for the protection of particularly sensitive information in the conduct of AAT proceedings.

By the existing provisions in the FOI Act, intelligence agencies and the Inspector-General of Intelligence and Security are wholly excluded from the operation of the act, and documents in the hands of agencies are excluded if they originated with or were received from an intelligence agency or the Inspector-General of Intelligence and Security. The bill will in the same way exempt these classes of documents from the operation of the FOI Act when held by ministers. It is anomalous to treat intelligence agency documents differently when they are held by a minister.

In its report on the bill, the Senate Standing Committee on Finance and Public Administration—I thank the committee for the work it undertook to review the bill—made a single recommendation: that the Senate pass this bill. So I thank the chair and the senators who participated in that review of the bill. Since this bill was introduced into the parliament, the government has released draft legislation for public comment to fulfil the rest of its election commitment on FOI reform. The draft legislation, together with this bill, constitutes the most significant overhaul of the FOI Act since its commencement in 1982. While the repeal of the powers to issue conclusive certificates is just one initiative among many in the government’s broader FOI reform package, it is an important step in making government more open, accountable and transparent. In closing the debate on this bill, I also thank those who participated in the second reading debate. Although there were not many, I do understand that the bill has broad support to pass.

Question agreed to.

Bill read a second time.