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Thursday, 13 August 2009
Page: 4854


Senator LUDWIG (Special Minister of State and Cabinet Secretary) (11:42 AM) —In response to that, dealing with both (1) and (4) together, the government does not accept the amendments moved by Senator Ludlam. The effect of item (1), effectively together with item (4), is to repeal the existing exclusion from the FOI Act that applies to some intelligence agencies and a limited number of other bodies, which includes the Auditor-General and the Australian Government Solicitor. If it is the intention of the Greens to apply the FOI Act to all intelligence agencies, then the amendment does not actually achieve that. I am not sure that I really want to provide you with the opportunity to correct it, either! The amendments do not cover the exclusion of Department of Defence intelligence agencies, which are prescribed for the purpose of subsection 7(1)(a) of the FOI Act. The way your amendment has been structured does not include all the intelligence agencies.

The government does recognise, though, if we go to the nub of the issue, that strong justification is needed to support wholly excluding agencies or classes of documents from the operation of the FOI Act. A total exclusion will be justified where the functions of the agency would be compromised by right of public access to information they hold. That is clearly the case for intelligence agencies. Intelligence agencies cannot realistically be expected to carry out their functions with the same level of transparency ordinarily expected of administrative action. Intelligence agencies remain accountable through special measures such as the Joint Standing Committee on Intelligence and Security and the inquiry power of the Inspector-General of Intelligence and Security.

In addition, the joint 1996 Australian Law Reform Commission and Administrative Review Council Open government report recommended that intelligence agencies should remain excluded from the operation of the act. That was recommendation 74. We are provided with that comfort. We looked at the original Open government report. In its reasons, the review observed that, if an intelligence agency were subject to the FOI Act, the vast majority of their documents would be exempt. Without going into any great detail, I will cease at that point, but, for all the reasons I have articulated, we are not supporting the amendments.