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Thursday, 20 October 1983
Page: 1995


Mr COLEMAN(11.15) — When the Freedom of Information Bill was being debated in this House a couple of years ago I described it as an experiment. It was obviously an attempt to strike a balance between openness and confidentiality, between the rights of the public to have access to public records and the necessary confidentiality of certain government records. A balance was struck. I think it was agreed on all sides that it would not be a permanent balance, that there would be a period of experiment, of trial and error, and that after a year or so the Act would be looked at again and probably , in the light of experience, amended. I think it would be agreed that the idea at that time was to avoid what was seen to be, by some people anyhow, as the excesses in the extremely open and liberal Freedom of Information Act of the United States of America, which was basically the model for the Australian Act. In the United States there have been very high administrative costs indeed, unlimited retrospectivity, a very high rate of litigation and minimal exemptions even for, as it works in practice, criminal intelligence or national security information.

The Australian Act provided for public access but had enough limitations to avoid those American excesses, as they were regarded. It has to be agreed that after operating for a year or so the Act has been working very well indeed and that some of the concerns or even fears of very great administrative costs and matters of that kind were not well founded. Australians do not seem to have that passionate curiosity about government documents that Americans obviously have. The figures that the Attorney-General (Senator Gareth Evans) gave in the Senate after the first four months of operation indicated that only a tiny fraction of the number of anticipated demands had been made under the new legislation-they averaged about 700 a month-and that less than a quarter of all government departments and agencies had been the subject of applications; that is, some 75 per cent of government agencies and departments had not received a single request under the Act. A little later, Senate Estimates Committee E was told that in the first seven months of operation there had been 5,593 requests, still just a little more than 700 a month, working out at a full year rate of 9,500, and that over two-thirds of the requests were directed to four client-centred agencies only-the Departments of Social Security, Veterans' Affairs and Immigration and Ethnic Affairs, and the Australian Taxation Office. So the flood of applications and the great administrative costs that were feared have not eventuated.

In the light of that experience, I completely support the Government's decision to reconsider the balance that was struck and to liberalise the Act further. Most of the amendments that it has introduced in the light of experience seem to me to be sensible ones. In the light of the public demand it is sensible to extend retrospectivity beyond 1 December 1982 to 1 December 1977. The legislation when introduced applied only, in effect, to new documents. Now its application will be retrospective to 1 December 1977. That seems to me to be perfectly manageable, sensible and proper. In the light of the public demand, or the lack of it, it is also sensible to reduce the compliance time from 60 days to 45 days as from 1 December 1984, and 30 days as from 1 December 1986. I think , also in the light of experience, that it is sensible to reduce the exemptions provided in the original Act, in particular by introducing the public interest test to Commonwealth-State documents and documents concerning Commonwealth property and financial interests. They seem to me to be sensible amendments to the principal Act and perfectly in keeping with the spirit in which the principal Act was introduced. I think it is fair to say that they are the sorts of amendments that would have been introduced in due course by the former Government had it remained in government.

Nevertheless, it is interesting that the Government has not moved in the direction in which we were led to believe it would move as far as conclusive ministerial certificates prohibiting disclosure of certain documents are concerned. It has abolished the Document Review Tribunal and substituted the Administrative Appeals Tribunal for appeals in this area. It is hard to quibble with any intensity at that substitution. I think it is a pity in some respects because the Document Review Tribunal would be a tribunal of specialists in this area whereas the Administrative Appeals Tribunal is a much more wide-ranging tribunal, but no one has any doubt that it will handle the matters appropriately . The Government has also amended the law so that in the event of a Minister still sticking by his conclusive certificate he must make a statement in the Parliament giving the reasons for his decision, as far as he can do so without actually disclosing what is not to be disclosed. I think that is a commendable amendment and I fully support it. The amendments also give the Commonwealth Ombudsman the right to represent an applicant before the Administrative Appeals Tribunal when appealing against a conclusive certificate. That represents a form of legal aid and is in every way commendable. I support that too. It is interesting-the honourable member for North Sydney (Mr Spender) commented on this-that these changes do not go anywhere at all towards what the Government, not only when in opposition but also when in government stated it would. On 29 May 1981 the Attorney-General 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.

The present Attorney-General said that when he was in opposition. When in government he said:

Labor will implement fully the outstanding recommendations of the Senate Standing Committee on Constitutional and Legal Affairs to ensure that freedom of information operates in practice as well as in name.

The real thrust of that statement was against the conclusive ministerial certificates. I think everyone in the chamber who was here at the time of the debate a couple of years ago will remember the then Deputy Leader of the Opposition, the present Deputy Prime Minister, stating that this legislation in its present form-basically an unchanged form-is obnoxious. Men who are now Ministers, one after the other, said that when in government, if in government, they would change this system radically but, of course, that has not happened at all. The substitution of the Administrative Appeals Tribunal for the Document Review Tribunal certainly does not do that. The requirement that Ministers make a statement in the House of their reasons for sticking to their certificates, while a commendable amendment, certainly does not abolish the conclusive certificate system, and giving the Ombudsman the right to represent applicants obviously does not do so. Despite the sound and fury a couple of years ago, during the election campaign and even to some extent since the election campaign , we see that this Government accepts the former Government's basic approach in this area. It seeks to amend the Act in minor ways-which I support-but not to change it fundamentally. I think the Bill as a whole is a good one. The amendments are in the spirit of the original legislation. Apart from a detail here or there, they have, by and large, the support of this side of the House.

I turn to the archives legislation introduced by the Minister for Home Affairs and Environment (Mr Cohen). I congratulate the Minister on this legislation. It is easy to do that because the same legislation was passed by the former Government, but it did not come to this House because of the election. It is legislation which is very much to be welcomed. It allows for the better management of archives, as the honourable member for Macarthur (Mr Hollis) said; it establishes an advisory council; it puts the Director-General on a statutory basis; it allows for the training of archivists and it takes measures against the loss or destruction of archives. Under the provisions of clause 24 a person shall not destroy or otherwise dispose of, and so on, a Commonwealth record. Such an offence is subject to a penalty of $2,000.

In fact, I have no idea of the extent to which there is loss or destruction of Commonwealth archives. My experience is too slight. Nevertheless, that experience certainly gave me concern. Three, four or five years ago I was looking into some Commonwealth archives dealing with a unit established by the Chifley Government in the war. It was the late Alfred Conlon's unit which was set up to advise the Prime Minister on matters of civilian morale and a range of other matters. That unit contained a very large number of distinguished Australian academics, intellectuals, poets and so on. It was a matter of some interest to me at the time for a book I was writing. I wanted to consult those archives. I had no difficulty in consulting what was available, but the relevant archives had gone-they had been lost or destroyed. As I have said, that is only one small example but it is a serious one because the Conlon unit, as it was called, was an important unit, in a small way, in the history of World War II and the history of Australia. But it would seem, on the basis of my experience, that those important Commonwealth records have disappeared.

That is a small example but it was an indication to me that a large number of important records may well have disappeared, have been destroyed or have been lost over the years. This legislation certainly will do something to bring order to this very important area. I would remind the honourable member for Macarthur that this legislation is supplemented by comparable legislation dealing with State archives. I guess we have to remind ourselves that some parts of Australia or some authorities in Australia existed for more than 100 years before the glorious Commonwealth was established. Indeed, there are important archives not under the control of the Commonwealth. Nevertheless, the Commonwealth controls some very important archives indeed. The archival system established by this legislation is extremely welcome.

Associated with the archives legislation is the Copyright Amendment Bill. At the moment the Copyright Act allows a broadcaster, if he has a licence from the owner of the copyright, to broadcast a copyright work or sound recording, to make an ephemeral record without obtaining a further licence to do so, as long as the record is either destroyed within 12 months-or an agreed long period-of the broadcast or delivered to the National Library of Australia with the consent of the National Librarian for retention. Under this Act ephemeral records deposited by broadcasting and television organisations will be deposited with the Australian Archives authority. More precisely, those ephemeral records that the Director-General certifies as being of exceptional documentary character will be deposited. At first sight this is straightforward but I hope the Deputy Prime Minister will clarify one point for us. There has been some uncertainty because of the fact that the Copyright Act makes the decision to deposit these specified ephemeral records with the Archives authority instead of the National Library. The Deputy Prime Minister, in introducing this Bill on 18 October, said :

Now that the Archives is to be established on a statutory basis . . . it is appropriate that the Archives, rather than the National Library, be entitled to receive this material . . .

That is straightforward enough. I raise this matter in the hope that the Deputy Prime Minister will clarify it. On the other hand, when speaking in another place on this very point, the Attorney-General (Senator Gareth Evans) said that this was really a matter of fundamental legal relationships and not necessarily about the de facto care and management of such ephemeral records. He said:

It is in fact proposed, so far as this Bill is concerned, that material so lodged with the Archives will be lodged in turn by the Archives, for the moment anyway, with the National Library of Australia, where they will be kept together with similar material from a variety of other sources.

It is possible to reconcile those two statements of the Deputy Prime Minister and the Attorney-General but it requires a little torturing of words. I hope the Deputy Prime Minister will clarify that point for the House. It involves the current debate as to whether these records should remain in the care and control of the Library or with the Archives, or whether there should be a separate archive with its own statutory basis. I do not ask the Deputy Prime Minister to decide that on this occasion, here and now. That is a very important debate because so many of these ephemeral records are of exceptional importance historically. Nevertheless, everyone is concerned with this debate. It would appear at least-I think the Attorney-General in the other place said that the decision has symbolic value, meaning that it has more importance than it would appear to have at first sight-that the Government has made the decision that the Archives, rather than the National Library or a national film archive, will be the ultimate repository of these records. I hope the Deputy Prime Minister will clarify that.

The three measures, taken together, are welcomed. They fit in with earlier legislation to establish the Commonwealth Ombudsman and the Administrative Appeals Tribunal. The freedom of information legislation amends in defensible ways. The archives legislation establishes something that is long overdue. The copyright measure is also welcome although there is a question which I look to the Deputy Prime Minister to clear up.