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Tuesday, 11 May 2010
Page: 3124


Mr DREYFUS (5:13 PM) —I am proud to support the two bills before the House: the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009. These bills represent the most substantial reforms to the Freedom of Information Act 1982 since it was enacted by this parliament. It is somewhat regrettable, perhaps even laughable, to hear from an opposition spokesman claiming that the coalition has a commitment to open and responsible government and indeed, by the selection of a handful of statistics or a handful of anecdotes, seeking to ignore the major nature of the reforms that are contained in this legislation.

There has already been very substantial reform contained in legislation considered by this House, namely the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008, which was debated last year. That marked the first stage of amendments to the freedom of information regime. Really, the removal of conclusive certificates and what the conclusive certificates represented tells all the story that one needs to know about the true or actual commitment of the coalition to open government. Conclusive certificates, of course, were what lay at the heart of the former government’s resistance to the release of information, notably in a case where the former government went all the way to the High Court. It was a case brought by Michael McKinnon, a very senior News Ltd journalist, who was requesting documents that were concerned with bracket creep and material relating to the first home owners scheme—precisely the kind of material one might expect to see being requested under freedom of information legislation. The former government’s attitude to FOI was revealed by the way in which that request was refused and then fought at every single level all the way to the High Court of Australia.

This government’s first legislative act in relation to the freedom of information regime was to abolish those conclusive certificates provisions, and as was foreshadowed by the former Special Minister of State, Senator Faulkner, we now have before the House the substantial set of reforms contained in these two bills. They are a set of reforms that have been long awaited because they are based not merely on more recent reviews and reviews by the Attorney-General’s Department and not merely on what has been very longstanding Australian Labor Party policy. They are based on a review that was finalised by a joint report by the Administrative Review Council and the Australian Law Reform Commission in 1996. It contained a very large number of recommendations. It was itself, at that point, the most substantial review that had been conducted of the Commonwealth freedom of information legislation. As was commented on at the very start of that joint report of the ALRC and the Administrative Review Council, at that point—some 13 years since the act had come into operation—it was long enough for the shortcomings of the legislation to have been uncovered and for some very coherent work to be done on what changes were appropriate to make the freedom of information regime work better.

But that extensive report, the Open Government report of those two bodies, was ignored by the former government for the whole of its term of office. The very substantial reforms, which were carefully thought through and were the subject of very many submissions that were considered by those two bodies in their substantial report, were all ignored by the former government, and that is where we see the true commitment of the coalition parties to open government and to freedom of information—which is, of course, no commitment at all. We had to wait for the Rudd Labor government to come to office, bringing with it very detailed commitments for amendments to the freedom of information regime, for there to be an enactment and legislation presented in this House, first abolishing conclusive certificates and followed up by this set of comprehensive reforms to the whole regime, which will change the system. That is why the complaints voiced by the member for Stirling should be seen as the laughable complaints that they are. Rather than talk about the substantial reforms contained in this legislation, we had reference only to a handful of statistics—pretty much the same approach that was taken by the coalition senators participating in the Senate Finance and Public Administration Legislation Committee which looked at this legislation. The coalition senators participating in the report—Senators Brandis, Ryan and Kroger—commenced their dissenting report with the risible claim:

The Coalition is committed to responsible and open government.

As I have said, the record of the former government speaks for itself. It had before it this extraordinarily detailed report by the two bodies—the ALRC and the Administrative Review Council—and chose to ignore all of those recommendations. There was no action to reform the freedom of information system and from that report—indicating that at that point some 13 years had passed since the act had been passed—we have had to wait another 14 or 15 years to get to this legislation before the House of Representatives in order to have substantial reform.

It is the case that freedom of information legislation deals only with one form of release of government information. Government information is released by this parliament collectively, it is released and made available to the public by members of this parliament individually, it is made available by ministers and it is made available by government departments. It should not be thought that the Freedom of Information Act is in any sense a code which fully describes the means by which government information is to be made available. What it does is to provide an additional means by which government information can be made available, and it does so because it is recognised, or at least recognised in democracies throughout the world, that the provision of information empowers citizens; that the provision of government information in every sense creates better government and in every sense makes it possible for citizens to participate more fully in the processes of government and for those engaged in the process of government, being members of this parliament, government ministers and officers of departments, to govern better.

I wish to comment briefly on the creation of the new offices, which is the purpose of the Information Commissioner Bill. The bill adds to the existing office of Privacy Commissioner the office of FOI Commissioner and the office of Information Commissioner, and it uses those newly created offices to set up a structure by which, for the first time in our freedom of information system, there will be a champion of FOI. There will also be a simpler means for review of freedom of information decisions, and there will also be, through the Information Commissioner, the possibility of review of all of the processes of FOI within the government, which will go a great distance towards what should be the true aim of a freedom of information regime, which is to create a culture in which governments and government departments and agencies are encouraged to release information. It should not be thought that freedom of information can ever be left completely to some code which lists in a prescriptive way the means and opportunities for obtaining information; rather, there should be a vibrant culture of release of information, where at all possible—a proactive culture of making information available—and it should not be left for citizens to make requests in order for information to be made available.

The Freedom of Information Amendment (Reform) Bill starts with what I would suggest is a very, very substantial reform, and that is to replace the objects of the Freedom of Information Act with a new provision. It is a very important provision because it makes clear that access to information is a right and makes clear that there are requirements on agencies to publish information. It makes clear that this parliament intends to promote representative democracy by increasing public participation in government processes by increasing scrutiny, discussion, comment and review of the government’s activities and, as well, by increasing recognition that information held by the government is to be managed for public purposes and is a national resource. It is important that that kind of object be stated right at the outset of legislation like this so as to put beyond doubt any suggestion that the Freedom of Information Act is intended to be in some sense restrictive or in any way intended to fully describe the opportunities that are provided for access to government information. Rather, it needs to be understood that an FOI regime, and in particular the freedom of information regime of this Commonwealth, is a tool—it is something that is there to assist in better government and assist citizens to participate in the government of the Commonwealth.

The specific other provisions I would comment on, apart from the objects clause, include the tidying up, if I can call it that, of the exemption provisions, which is important because anything that can assist in making this legislation easier to read and simpler to use is to be commended. There is a set of provisions which will now require the publication of a range of information, as well as provisions which specify how and when information is to be published by agencies of the Commonwealth and encourage the provision of such access.

There are further amendments in relation to the form of public interest test which is weighted towards disclosure. This is something that will, again, assist in ensuring that proper consideration is given to requests for information. The Victorian freedom of information legislation has for many years contained reference to public interest, which operates in that legislation as a form of override or reason why, despite an exemption having been made out, documents ought to be released because the public interest requires such access. The Commonwealth legislation will through these amendments now include clear public interest provisions which include a set of factors that will favour access, including promoting the objects of the act, to which I have already referred, informing debate about matters of public importance, promoting effective oversight of public expenditure or allowing a person to access his or her own personal information.

What is also important is that this public interest test makes clear that a range of matters are not to be taken into account in a public interest assessment. They include whether or not access to a document would result in embarrassment to the Commonwealth government or cause a loss of confidence in the government. I repeat: that is a factor not to be taken into account in a public interest assessment. Further, and this is a matter that has been sometimes raised by government agencies in resisting disclosure, it puts to rest the suggestion that access to the document resulting in any person misinterpreting or misunderstanding the document could ever be a relevant factor. That too will not be something that is taken into account in public interest considerations. There are two more factors which are not to be taken into account in the public interest evaluation. The first is that the author of the document is or was of high seniority in the agency to which the request for access is made. That is ruled out as something that might be taken into account in a public interest matter. Secondly, ruled out from consideration in the public interest evaluation is the proposition that access to the document could result in confusion or unnecessary debate.

This is a piece of legislation which puts trust in the citizens of Australia. It rests on the proposition that political debate in this country and the participation of citizens in the government of this country will be assisted by the provision of information—and the more the better. That is why we see this sort of provision, which says no-one in future will be allowed to go and suggest in the review processes, to the Administrative Appeals Tribunal or before the Information Commissioner or to the Federal Court of Australia, that simply because the release of the document might result in confusion or unnecessary debate that would be a reason in the public interest for it not to be released—and so it should be, because that judgment, as to whether or not the release of a document might result in confusion or unnecessary debate, is an extraordinarily subjective judgment. I, as someone who has participated in more freedom of information cases than I care to remember, can say that I am very pleased to see that argument, as a reason for not allowing the release of a document, put to rest.

It is, of course, the case that the public interest underlies many of the exemptions. We have a clear public interest in refusing to release national security documents. We have a clear public interest in refusing to release documents that are sourced from the intelligence community. The way in which the new public interest provisions work recognises that there are competing public interests and that there are public interests which favour nondisclosure as well as public interests which favour disclosure. This proposed act contains a rebalancing of the provisions which were there before in a clearer way and will lead—and this is what the coalition has failed to recognise—to a system that promotes disclosure and a system in which information will be more accessible.

I end by again referring to the claims that have been repeatedly made—the ones that were recently made in the Senate committee process by Senator Brandis and other coalition senators and were made throughout last year by Senator Brandis—about the coalition’s supposed commitment to open and responsible government. They are laughable claims. Their failure to implement the recommendations of the Australian Law Reform Commission and the Administrative Review Council’s recommendations from 1996 speak for themselves. That failure shows the true commitment. (Time expired)