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Thursday, 20 October 1983
Page: 1990


Mr SPENDER(10.42) —I thank the Deputy Prime Minister (Mr Lionel Bowen) for the very clear outline that he has just given us. I confess that I thought another matter would be dealt with for about three quarters of an hour, but I managed to get here in time for the commencement of this debate. The cognate debate concerns three Bills: The Freedom of Information Amendment Bill, which is to amend the Freedom of Information Act; the Archives Bill, which is a Bill for an entirely new Act; and the Copyright Amendment Bill, which is a Bill to amend the Copyright Act in a manner designed to give effect to one of the aims of the Archives Bill. I will concentrate most of my time on the Freedom of Information Amendment Bill. I shall later say something briefly about the Archives Bill and the Copyright Amendment Bill.

The Freedom of Information Act was introduced by and passed under the previous Government. The Act itself and the need for it reveals the great changes in style and substance which have occurred over the years in the way in which governments operate and the way in which people perceive that governments should operate. It used to be thought and assumed that the least government was the best government and that the government should intrude as little as possible into individual affairs. Of course, many years ago that was the case. To an extent the way in which governments intrude-for example, by providing welfare benefits; I class that broadly as an intrusion, but one which is always welcomed by the recipient-is welcomed. But the pendulum has swung very greatly from the days when governments were not expected to intrude into the affairs of individuals and when governments, to a very large extent, were not providers of any kinds of welfare benefits or support systems. These days we have government intrusion and interference into the affairs of individuals to a significant extent. Sometimes many would say the intrusion is perfectly legitimate and beneficial. But at other times one would say that it is not and what we see is the uncalled for expansion of the workings of the bureaucracy, a bureaucracy which individuals sometimes find it very difficult to deal with or to understand .

It is commonplace that every citizen in this country is affected by government actions. As I have indicated, this is far more so now than it was in the past. If one looks at the volume of legislation affecting individuals, at the regulations which affect individuals and at the government departments, instrumentalities and other bureaucratic enterprises which have flourished over the years and which affect individuals, one can see how great is the extent to which we are all affected by the actions taken by departments of government. A citizen may be affected in a variety of ways.

I am not surprised that the majority of inquiries made under the Freedom of Information Act have been directed to what are described as client orientated agencies, that is agencies which affect one because one wishes to derive certain benefits from them. They include the Department of Social Security, the Department of Veterans' Affairs and that agency which is always with us, from which one wishes to derive not benefit but from which one wishes to escape if one can, the Australian Taxation Office. When I say 'escape' I doubt that any person in this country is happy about paying tax. It is a fact of life that we would all prefer to pay less tax than we pay.

I shall now say something about some of the more striking amendments which are to be found in the Freedom of Information Amendment Bill. Some of the amendments are concerned with matters of substance, some are concerned with what we would call machinery matters. I begin by referring to the access provisions which are to be found in section 12 of the principal Act which is to be amended by clause 7 of the Bill. One of the fundamental provisions of the Bill and the Act relates to the question of access. Without access, of course, one cannot have any freedom of information. Perhaps before going to the precise measure I should say something about freedom of information and the need for it. I spoke earlier about perceptions of citizens as to how governments should operate. I think one of the perceptions of citizens is that they should have access to matters that concern them, to assessments which concern them and to information which concerns them. Governments tend to be secretive and that applies to governments of whatever political persuasion. In opposition it is one thing but in government those who extol the virtues of access to government information and open government soon find compelling reasons to change their minds-compelling reasons, of course, which are always expressed in terms of the national interest and in the need for government to preserve confidentiality of actions. The foundation on which the whole legislation rests is a perception that citizens are entitled to know much more than governments have in the past been willing to let them know.

I am glad to see the present Government profitting from some experience under the Freedom of Information Act. It has, by an amendment to section 12, enlarged the provisions for access to information so that it goes back in all cases to 1 December 1977. In cases where an individual is affected, that is, where the personal affairs of the individual are in issue, then there are to be no limits on retrospectivity. As a general rule I am not in favour of legislation which has a retrospective operation. But on this occasion I am certainly in favour of the legislation because of that operation.

Next on the subject of compliance, the Government has made provision in the Bill for compliance with a request for information within a period of 45 days rather than 60 days, as from 1 December 1984. Thereafter, from 1 January 1986, compliance is to be had within 30 days. That I think is an improvement on the legislation, one which has been derived from an examination of how the existing Act operates.

The Bill which is now before the House introduces a number of public interest concepts. Clause 17 of the legislation provides in effect that exemption provisions in documents affecting relations with States are not to apply in respect of a document, the disclosure of which under the Act would, on balance, be in the public interest. A similar provision is to be found in clause 21, a clause which amends provisions in the existing Act relating to the financial and property interests of the Commonwealth. In the same clause there is an amendment relating to documents concerning the operation of certain agencies. In short, in each of the three cases-that is, documents affecting relations with the States, documents affecting financial or property interests of the Commonwealth and documents concerning the operation of certain agencies where otherwise a document would be an exempt document-if it is in the public interest on balance that the document should not be exempt then it is not to be exempt. I think that is an improvement in the operation of the legislation.

The last matter to which I would like to refer is to be found in clause 20 of the Bill. We see that, in clause 20, an amendment is made to section 37 of the Act so as to exempt from disclosure a document that might endanger the life or physical safety of any person. As it presently stands, section 37 sub-section (1 ) (c) exempts from disclosure a document that could reasonably be expected to endanger the lives or physical safety of persons engaged in, or in connection with, law enforcement. The present proposal extends that so that it covers not just persons engaged in law enforcement but the life or physical safety of any person. I think that is to be welcomed. Once again it is an illustration of how one learns from the operation of the existing Act.

I think it may be said that the amendments before the House demonstrate a number of lessons. First, what a difficult balancing act it is when we seek to make a determination between, on the one hand, the rights of individuals to know how governments operate and to know about decisions which affect them and, on the other hand, the public interest that governments, departments and agencies should be in a position to operate with a fairly high degree of confidentiality. The public interest provision to which I referred illustrates the great difficulty of this balancing act. In each of the three cases to which I referred -that is, where the property or financial interests of the Commonwealth are concerned, where relations with the States are concerned and where operations of certain agencies are concerned-a decision has to be made as to whether on balance disclosure would be in the public interest. That is very much of a jury question. It is a question upon which everyone in this House could, I think, come to a different conclusion. It illustrates just how difficult the kinds of judgments that are to be made under the Act will be.

The second lesson that can be learnt from the Bill and from the history of the application of the existing Act is that the implementation of this kind of remedial legislation is always a question of trial and error. For example, it was originally thought that there would be a deluge of applications. As I understand it, that was indeed the advice received by the previous Government. That advice proved not to be correct. I say that without criticising those who gave the advice. It is always very difficult to foresee how this kind of legislation will operate and how many applications will be brought under it. Because the implementation of this kind of legislation is a matter of trial and error it is worth while remembering how easy it is to criticise some aspects of the working of the legislation and perhaps some aspects of the original proposal which was made an Act under the previous Government. Indeed, I was critical of some of those proposals. Hindsight, of course, is always of great assistance when one is being critical. Now that the Freedom of Information Act has been operating for some time we can see how it works and can learn from it.

The third lesson we can draw from the amendments and from the Act itself is how complex our society is and how complex our laws have become and continue to become. We can do nothing about the complexities of our society, but I wonder whether we should not be able to do something about the complexity of the law. On its face, freedom of information would appear to be a fairly straightforward subject, and one would think that it could be dealt with in a relatively straightforward manner. One sees that the original Act, together with schedules, runs to some 51 pages and 94 sections. The Bill which is presently before the House runs to an additional 25 pages and has 45 clauses. I understand how difficult the drafting exercise is and I understand how easy it is to say that one can simplify legislation without proffering precise advice as to how that is to be done; but I think that all of us hope that we will in future be able to simplify our laws. As I said, we can do nothing about society but we can work as hard as possible to make the laws passed by this Parliament clear, intelligible and concise. It may be that a broader approach to drafting, rather than the narrow approach which seeks to take into consideration every possible contigency , would be very much better.

The fourth comment I have to make on this legislation is how it illustrates changes in attitudes. If I recall correctly, Senator Gareth Evans, in the time that he was in opposition, was a great proponent of freedom of information. His interest in the subject was referred to by Senator Durack in the course of the debates on the Freedom of Information Bill when it was before the Senate. He quoted what Senator Gareth Evans had to say. I commend Senator Gareth Evans for the enthusiasm and energy with which he has gone about making improvements to the Freedom of Information Act. He has learnt from the previous Government's experience, and it should be remembered that the previous Government put the Freedom of Information Act on the books. Senator Durack quoted what Senator Gareth Evans said in April 1981:

. . . one of the recurring themes in the whole history of freedom of information around the world is the way in which, for obvious reasons, it tends to be espoused as a concept rather more passionately by oppositions out of office than by governments sitting in office.

One must say that Senator Gareth Evans has lived to see the fulfilment of his own words since, as I understand it, when in opposition not only was he passionate in his avowal of freedom of information but he also had a view on the conclusiveness of ministerial certificates. That view was quoted by Senator Durack in the Senate debate on 7 October. In May 1981 Senator Gareth Evans had said:

So long as ministerial discretion in any form is retained absolutely and conclusively to deny access to these documents without being subject to second guessing or review by anyone else, it is our view . . . that freedom of information legislation is simply not worth having unless we can ensure that documents of this kind come within its ambit, too.

We find from the second reading speech that the Government has considered it premature to take the further step of abolishing the system of conclusive certificates. So Senator Gareth Evans espoused one point of view in opposition, but when he got into government he realised that what he espoused was unwise.

As I read what Senator Durack quoted of Senator Gareth Evans's remarks I could not help but be reminded of two maxims. The first is that promises are made in hope and kept in fear. Perhaps the promise was one which Senator Gareth Evans would not feel was enforceable against him. The other maxim is that it is better to travel than to arrive. Senator Gareth Evans is now travelling with the concept of abolishing conclusive certificates but has not yet arrived at the abolition of those certificates. I do not for a moment say that they should be abolished, but I think it is worth while pointing out that some of the criticisms made against the previous Government have not been implemented in this Bill. I commend Senator Gareth Evans for having some second thoughts upon the subject.

I should now like briefly to say something about the Archives Bill and the Copyright Amendment Bill. The purpose of the Archives Bill is to place on a statutory basis the present system of collecting the archives of the Commonwealth and, of course, to do a great deal more at the same time. It is worth while remembering that the original Archives Bill was introduced by Senator Durack in 1978, along with the Freedom of Information Bill in its first form. Those Bills were referred to two Senate committees, the Senate Standing Committee on Education and the Arts and the Senate Standing Committee on Constitutional and Legal Affairs. The Archives Bill was reintroduced by Senator Durack in 1981. It was not debated and it lapsed. The Archives Bill presently before the House is in substantial respects the same as the Archives Bill introduced under the previous Government by Senator Durack. I think it is worth while placing those facts on record.

I do not wish to say anything further about the Bill. The Opposition welcomes this measure and supports it. It places the collection of the archives of this country on a more permanent and better organised basis. Once again I think we will find that under the Archives Bill there will be a learning process not dissimilar to the learning process under the Freedom of Information Bill. Indeed , I would be surprised if the amendments to the Freedom of Information Bill presently before the House are the last we will see, and I would be surprised if we did not also see some amendments to the Archives Act, as it will become when it is passed.

Lastly, the Copyright Amendment Bill is before the House for the purpose of making provision for ephemeral records-that is, records of oral matter-going to the Australian Archives. I welcome that measure. There are limitations on the kinds of matters which are to go to the Australian Archives. I hope that in the collection of what is said and what has been written, whether by virtue of the Copyright Bill as it will apply to the operation of the Archives Act or to work done under the Archives Act, at all times those who have the task of collecting information bear in mind that there is a great deal of matter-I sometimes think this applies to much of what is said in a great number of public documents-which is really of very little worth in the long run. I hope therefore that those who have that very difficult but interesting task of collecting records do so with a clear eye as to the value of those records.