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Monday, 14 September 2009
Page: 9475


Mr MELHAM (8:25 PM) —I rise to speak on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]. If one goes to the explanatory memorandum, one finds out what this bill is about, and I propose to quote extensively in the short time remaining before we adjourn. The explanatory memorandum states:

The purpose of the Bill is to repeal the power to issue conclusive certificates in the Freedom of Information Act … and the Archives Act … for all exemption provisions where certificates may be issued.

The proposal to repeal the power to issue conclusive certificates forms part of the Government’s 2007 election commitments made in its policy statement, Government information: restoring trust and integrity.

The effect of the repeal of the certificate power will be that the AAT may undertake full merits review of all exemption claims.

Further down, it states:

Where a document or record properly falls within an exemption category in those Acts (for example, documents affecting personal privacy or documents whose release could damage national security, defence or international relations), access may be refused.

One cannot underestimate how big a step that is in terms of conclusive certificates, given their history. The explanatory memorandum goes on:

  • The AAT will be required, in the first instance, to consider evidence on affidavit or otherwise when determining whether a document is exempt under a national security, defence or international relations exemption, or a confidential foreign government communication exemption …
  • … the AAT will be directed to give particular weight to a submission by an agency, Minister or the National Archives that it should make such orders where the proceedings relate to a document or record that is claimed to be exempt under a national security, defence or international relations exemption, or confidential foreign government communication exemption …
  • The Inspector-General of Intelligence and Security will be asked by the AAT to give evidence as to any damage that could result from disclosure of documents or records claimed to fall within a national security, defence, or international relations exemption, or a confidential foreign government communication exemption …
  • Presidential members of the AAT will hear applications for review of a decision to refuse access to a document or record under a national security, defence, or international relations exemption or a confidential foreign government communication exemption …

Other measures in the Bill are as follows.

  • In certain cases where notification may not be appropriate, an agency or Minister will be able to apply to the AAT for an order that it be excused from informing certain third parties of an application by an FOI applicant for AAT review …
  • Where an appeal is instituted in the Federal Court against an AAT decision to give access to a document or record, the AAT decision will be automatically stayed until the Court decision on the appeal takes effect or such other time determined by the Court, whichever is the earlier.
  • Access to a record, by staff of the National Archives, will be limited where those staff do not have appropriate security clearance …
  • The exclusion that applies to publication in the Australian National Guide to Archival Material of particulars of records to which a conclusive certificate is in force will be repealed.

That is, in a nutshell, what we are dealing with in relation to this bill. I propose to talk a little bit later on, when the debate resumes, about other aspects of it. What we are doing is substantial. It is taking the situation forward in relation to freedom of information, and we are talking about a large number of FOI requests since 1996-97. So for those opposite to be criticising the government is a bit rich at this stage.

Debate interrupted.