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Wednesday, 12 May 2010
Page: 3221


Mr OAKESHOTT (10:58 AM) —I rise to also put on the record some views on the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009. With many pieces of legislation that go through this place—and this is one such example—the theory and the words that we see in the paperwork are commendable and very hard to argue against in any form. However, it is a case of flagging, for anyone who is listening, that the proof in pieces of legislation such as this one is very much in the implementation and the commitment from those who late at night might be sitting behind a ministerial desk or an adviser’s desk with a potentially politically embarrassing freedom of information request before them. The question then is what decision is made by the individuals involved in the implementation of reform documents such as this one.

So by all means the changes to the object of the FOI Act are welcome but the test is yet to come with legislation passing this place. The test will come when the human discretion becomes involved at a later date, whether that is through an Information Commissioner, and the questions of who that person is; what their qualifications are; what authority—delegated or otherwise—they have; what reporting commitments they have to the parliament and to various ministers, prime ministers and parliamentarians; what genuine commitment to public disclosure that individual has; as well as the overall culture of government generally and departments specifically. The culture, mainly, in Canberra is not at this moment in time one of open disclosure and open government. I sincerely hope that this is a step in the development and the change of that culture to one as per the words, where open government is the starting point and we work back from there rather than open government being the last port of call in freedom of information requests and an open, transparent and therefore accountable democracy. So the general tone of these amendments—that information held by government is to be managed for public purposes and is a national resource—are expressed in fine words and fine sentiments, but I do flag that I certainly will be watching closely.

In this speech I will be raising a specific example where, if government are serious and genuine in their intent about reform, they will consider starting to put these words into practice immediately. The case in question I want to raise is in relation to the schedule 3 exemptions. Listing through the changes to the publication guidelines for Commonwealth agencies subject to this act, the new types of information that are included in the reforms are details of statutory appointments, operational information of an agency, and the publication of information in documents to which access is routinely given through FOI requests. This final requirement is qualified concerning the publication of information that concerns personal information about any individual, information about the business or professional affairs of any persons, or any other kind of information of a kind determined by the Information Commissioner through a legislative instrument that is deemed unreasonable to be published. This part provides for the new Information Commissioner to assist the agencies with their publishing obligations and to play the big brother type role. In reference to my previous comments, therein lies the question: just how hard and how often is this Information Commissioner going to press the button of open government rather than being subservient to the whim, the wishes or the potential embarrassment of individuals or departments?

Perhaps most importantly, the proposed 9A outlines that an agency, in performing its functions under this part of the act, must have regard to the revised section 3 object of the FOI Act and then the schedule 3 exemptions and the part 1 open-access periods. Open-access periods are when the National Archives of Australia must make available Commonwealth records other than exempt records to the public. Currently records other than cabinet notebooks are not available for 30 years and cabinet books are not available for 50 years. This part of the bill changes the Archives Act 1983 and brings forward these periods so that Commonwealth records are available sooner. Records other than cabinet notebooks will now be available for open access after 20 years, and cabinet books will be available within 30 years. That is, I think, an important step, but it does lead me to raise the specific issue before the Administrative Appeals Tribunal right now, which does directly sit at odds with the intent from government in this legislation and the language from government in this legislation.

The new single-form public interest test which is weighted towards disclosure and the 30-year rule sitting alongside the Archives Act is directly at odds with the Clinton Fernandes case and the paperwork that he is seeking through the 41 situation reports in relation to the East Timor independence events of 35 years ago. Even now the question of public interest is having to be tested by an individual who potentially is exposing himself to hundreds of thousands of dollars of court costs. But he is an individual doing it for the national interest, ironically with the Australian Government Solicitor acting for the National Archives of Australia seeking to block access to the contents of some of these 40 situation reports from that period, most on the grounds that they contain information the disclosure of which ‘could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth’. A couple of them are also deemed sensitive because they contain information sent as secret by other foreign governments. So not only is the Australian government now seeking to block disclosure to avoid ‘exceptionally grave harm to national security’; the government is also seeking to have the tribunal hearing held in camera on the grounds that even arguing why the documents are so sensitive would disclose some of the contents. This, remember, is about things that happened in 1975—35 years ago.

So Clinton Fernandes, who was a guest of mine when we had the Indonesian President here, is not a mad, raving loony; he is a defence analyst connected to the University of New South Wales. He was responsible for the East Timor desk, in a period when the independence movement in East Timor was on. He has, he assures me, seen most if not all of these 42 situation reports. And he assures me and others that these situation reports are not against the national interest. They may cause some political embarrassment, but if we are talking about a public interest test, if we are talking about open disclosure, if we are talking about political embarrassment not being a reason for withholding documents, then here is a real, live test case before the Administrative Appeals Tribunal that the Minister for Defence, John Faulkner, could override and release those documents and save a court process, the exposure of an individual and also genuinely demonstrate a commitment to public and open disclosure in the national interest. Somewhat ironically, it is the same John Faulkner who, to his credit, is the person who is largely responsible, with a lifelong commitment and a political commitment to freedom of information and public disclosure, for the formation and introduction of this bill—and I congratulate him for that. But the challenge now, directly to him, is that here is a real, live opportunity for him, today, to move in his capacity as Minister for Defence, on the release of these documents from 35 years ago, under the Archives Act—exactly in line, I would suggest, with the proposed legislation before the House today. Yet, in a court down the road, we have government acting completely at odds with the sentiments and the words that are contained within this document.

Going back to my opening comments, these are good words. This is a good piece of legislation. It is necessary reform. But when the human discretion and the human interest test becomes involved in public policy, we start to put the rubber on the road, the meat on the bone—and any other cliche that says the real test of whether governments and individuals within government are serious about these good words. We start to see whether these words mean anything. Unfortunately, at the moment, in a court down the road, they are not worth the paper they are written on. It would be great to see that turned around as a first and genuine example of a new era of open government from the Labor government, which talks about the importance of open government to democracy yet is doing the exact opposite in the Administrative Appeals Tribunal right now.

So there is my challenge for today, to the minister, to the government and to the advisors sitting in the boxes: let us see it. Let us maybe have some truth about what happened around 1975 debated in the open forum and the public court. Yes, it may cause some political discomfort for former prime ministers Whitlam and Fraser, but let’s bring it on—let’s get the story told and have an open and honest debate about events from 35 years ago; let’s start to learn the truth about those events; and let’s then start to drill down on how we build stronger relations between Indonesia, Australia and East Timor as a consequence of those events from 35 years ago. So I welcome the words. I welcome the legislation. I look forward to the action to back up those words and this legislation before the House today.