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Tuesday, 18 October 1983
Page: 1848


Mr LIONEL BOWEN (Minister for Trade)(5.50) —I move:

That the Bill be now read a second time.

The Freedom of Information Act has now been in operation for 10 months. It commenced on 1 December 1982. Experience in that period has shown: The number of requests for access to documents which have been made under the Act is only a small fraction of the numbers feared by departments and authorities when the Bill was before the Senate Standing Committee on Constitutional and Legal Affairs; as was expected, most of the requests have been for documents related to the personal affairs of the applicant and have been made to the large client- oriented agencies such as the Department of Social Security, the Australian Taxation Office and the Department of Veterans' Affairs; most of the requests are being dealt with well within the 60-day time limit specified in section 19 of the Act, although there is no doubt that most departments and authorities might be described as still being in the learning stage in handling requests.

The Government came to office with a commitment to review the Freedom of Information Act. The starting point for that review has been the recommendations of the Senate Standing Committee, which were not taken up by the previous Government and which were moved unsuccessfully both in this place and in the Senate during the debate on the Freedom of Information Act. It will be remembered that there were three principal areas of contention: First, the lack of substantial retrospectivity except in respect of documents relating to the personal affairs of the applicant, and even in that case only documents up to five years old at the date of commencement of the Act; secondly, the power given to Ministers to issue conclusive certificates having the effect that claims to exemption might only be examined by a special tribunal to be set up for that purpose; and thirdly, the undue width of a number of exemptions due to the lack of a proper test of public interest in the release of the documents concerned.

The present Bill tackles all three aspects. In the first place, it provides that the generality of records up to five years old at the date of commencement of the Freedom of Information Act will be subject to the legislation. That means that documents which came into the possession of Ministers and agencies on or after 1 December 1977 will be available for access subject, of course, to the exemption provisions of the Act. In the case of documents containing personal information about the applicant there will be no limit on the retrospectivity. I would add that a number of agencies are already dealing with requests for documents containing personal information on this basis. The retrospectivity thus given will cover most of the documents which are the subject of current interest to applicants and will represent a very substantial expansion of the scope of the legislation. In addition, the legal protection given by sections 91 and 92 to the disclosure under the Act of non-exempt documents will be extended to the disclosure of non-exempt documents beyond the five year period. This will encourage agencies to give access to prior documents beyond the five year period .

In the second place, the special Document Review Tribunal is to be abolished. Although the Government has considered it premature to take the further step of abolishing the system of conclusive certificates under the Act, it does not consider that there is any justification for retaining a special tribunal to deal with these matters. It believes that they can be adequately and properly considered by the presidential members of the Administrative Appeals Tribunal who, in the context of the other jurisdictions of the Tribunal, are building up a considerable body of expertise in the handling of administrative matters.

The Tribunal, constituted by presidential members, will be empowered to consider whether there are reasonable grounds for claiming that a document is exempt in any case where a certificate has been issued and to recommend accordingly. Furthermore, the Bill will amend the Act to require the relevant Minister, in a case where the Tribunal has found that there are no reasonable grounds for claiming that a document is exempt, positively to decide whether to revoke the certificate or not. If he decides not to do so, he will be required to give a statement of reasons for that decision so far as can be done consistently with not disclosing exempt matter, and to table that statement in the Parliament.

In the third place, three of the exemption provisions of the Act will be made subject to an overriding public interest test. This will give effect to relevant recommendations of the Senate Standing Committee, particularly in the case of Commonwealth-State documents. The first of these exemptions concerns Commonwealth-State documents; that is, documents the disclosure of which may cause damage to Commonwealth-State relations or disclose information communicated in confidence by a State government or authority to the Commonwealth. The Bill will provide, in a new section 33A to be inserted in the Freedom of Information Act, that a document will not be exempt on this ground if the disclosure of the document under the Act would, on balance, be in the public interest; that is, a document cannot be withheld under the Commonwealth-State exemption if the disclosure of the document would serve the public interest.

In the area of Commonwealth-State documents the Bill also picks up two recommendations of the Senate Standing Committee which were rejected by the previous Government. They are, first, that a State should be entitled to be consulted before the release of a document which might fall within the Commonwealth-State exemption provisions; and secondly, that a State having been so consulted should be entitled to appeal to the Administrative Appeals Tribunal against a Commonwealth decision to release the document as one which is not exempt. I should add that the Prime Minister (Mr Hawke) has written to the State Premiers and to the Chief Minister of the Northern Territory to repeat assurances given by the previous Government that a State could be expected to be consulted before there is disclosure of a document the release of which might harm the interests of the State or the Northern Territory, as the case may be. I would also add that the provisions relating to States all apply equally to the Northern Territory.

The exemptions contained in sections 39 and 40 of the Act are to be restricted in their scope by the addition of an overriding public interest test of the kind I have already described in relation to Commonwealth-State documents. These two exemptions relate to documents the disclosure of which would adversely affect the financial or property interests of the Commonwealth or its agencies, and documents the disclosure of which would prejudice certain agency operations. In addition, the latter exemption has been redrafted to clarify its scope.

The Bill contains an amendment agreed to in the Senate to insert a new Part VA entitled, 'Role of the Ombudsman'. The Government accepts that the expanded role for the Ombudsman in freedom of information matters intended by the amendment will be an improvement to the Act. The matter of most significance in the amendment is the empowering of the Ombudsman to represent, or to arrange representation for, applicants before the Administrative Appeals Tribunal. The circumstances in which the Ombudsman is likely to exercise this power will be relatively limited. The Senate Standing Committee on Constitutional and Legal Affairs, in its report on freedom of information, strongly supported the Ombudsman having this power. There is merit in the Ombudsman having this power in respect of matters of principle, where an unrepresented applicant would be at a disadvantage in arguing technical legal matters. The Government believes, however, that the Ombudsman should not be empowered to represent appellants in cases where it is a decision of a Minister that is under review. For him to have that power would be inconsistent with his being excluded from investigating decisions of Ministers under his ordinary powers. The Government will therefore be moving an amendment in the Committee stage to clause 27 of the Bill for this purpose.

The Bill contains a number of other measures to widen the scope of the Freedom of Information Act. First, the exemption for Cabinet and Executive Council documents has been narrowed to exclude from its scope documents of a purely factual character the disclosure of which would not reveal a hitherto unpublished decision of the Cabinet. Secondly, there is to be a progressive reduction in the 60-day period allowed by section 19 of the Act for dealing with requests under the Act. Thirdly, the Act will be amended to require a statement of reasons to be given under section 26 of the Act in respect of all decisions under the Act relating to a refusal of access. Fourthly, when an applicant is refused access to documents in circumstances in which he would be entitled to complain to the Ombudsman about that refusal, the agency concerned will be required to inform the applicant of the right to complain to the Ombudsman. Fifthly, the Administrative Appeals Tribunal is to be empowered to recommend to the Attorney-General, in appropriate cases, that the costs of a successful applicant before the Tribunal be paid by the Commonwealth. Sixthly, the Bill makes two changes of significance to section 9 of the Act, which provides for the publication of departmental manuals and the like. In the first place, an updating of the list of manuals will be required, so far as practicable, to be made every three months, instead of every year as at present. In the second place, the dispensing power granted by the Act to the Attorney-General to modify the application of section 9 to an agency is to be limited to the special case of the Commissioner of Taxation for which it was originally intended.

The Government believes that all these changes together with other changes made by the Bill, widening in various ways the scope of the Act and clarifying or improving its practical operation, will bring marked advantages to the public in the working of the legislation. I commend the Bill to the House.

Debate (on motion by Mr Spender) adjourned.