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Wednesday, 11 May 1994
Page: 570


Senator BOLKUS (Minister for Immigration and Ethnic Affairs and Minister Assisting the Prime Minister for Multicultural Affairs) (10.07 a.m.) —I will take some time to go through this particular point, if for no other reason than to facilitate some discussions that Senator Vanstone might be involved in on other aspects of the bill. My advice is that section 27A of the Freedom of Information Act—the section which is the subject of this particular clause 53—was proposed only after a very long and serious consideration of the recommendations in the report of the Senate Standing Committee on Legal and Constitutional Affairs in 1987. It is a report of which I am well aware because I chaired that committee in that particular inquiry.

  After the government received the report I am sure that it gave long and serious consideration to our recommendations. The section was inserted in 1988 by the passage of the Privacy Act. An amendment was made in 1991 in conformity with the Privacy Act and it instituted the concept of personal information rather than `information relating to personal affairs' which had been used to that time.

  The amendment also enacted the Senate committee recommendation by removing the discretion that decision makers had of consulting a person, where another person had sought access to personal information about him or her, making such consultation mandatory.

  These proposed amendments seek to reverse that latter amendment and reinstate the discretionary approach with some legislative criteria on matters to be considered in exercising that discretion. It might also help at this stage to explain the background to the series of amendments.

  In our 1987 report the Senate committee recommended that, in the case of business affairs documents, the qualification that consultation was required only when it appeared to the officer or minister dealing with the request that the third party might reasonably wish to contend that the document is an exempt document under section 43 be removed. That was in chapter 8, paragraph 16 of that report. The committee also recommended that the reverse FOI process for personal affairs documents be the same as for business affairs documents. That is in 8.83.2 and 8.86.

  That brings us to the 1991 amendments to the FOI Act. The term `personal affairs' is replaced with the term `personal information', which, as I think Senator Spindler will understand, is defined in the FOI Act to cover a much wider range of information than that found to be included in the term `personal affairs'.

  In particular it covers information about a person's work or official acts, and information about someone which is widely known or is in the public domain. That, I think, is going to the core of the particular issue that is before us this morning. On the other hand, `business affairs' had a much narrower application as it relates to anything that occupies a person or business for the purpose of profit.

  So the difficulty that has arisen in respect to section 27A is that, in removing the qualification of `reasonable contention', it has become mandatory to consult on every occasion that a document contains third party personal information, irrespective of the fact that that information might be well known or that there might be no reasonable grounds for thinking the disclosure of that information would be unreasonable.

  It is worth going to some of these examples because they are real life cases where consultation has taken place. I raise them to indicate that the inflexibility in the section has led to some situations which could be called Monty Pythonesque in nature. I am told that consultation was required, for instance—much to the bemusement of those consulted—in cases where a copy of an entry from Who's who had appeared on file, or in cases where several newspaper articles and speeches made by members of parliament were included in files. To actually consult people about whether one can release under FOI a copy of a Who's who entry, of course, does have some farcical connotations. Further information which disclosed that a well-known person had carried out consultancy work for an agency and the fact that that person had discussed that in a published autobiography—and, I am sure, probably had promoted it a number of times in his life—also led to one of those farcical situations. That is the sort of problem that the amendments before us today are trying to overcome.

  The qualification on the requirement to consult, which appears in proposed section 27(1)AA, should not be looked at in isolation from the rest of the section in the form in which it will be when it is amended. The following amendment to section 27A will still retain the requirement to consult where the person `might reasonably wish to contend' that the document contains personal information, the disclosure of which would `involve unreasonable disclosure of personal information'.

  Where a reasonable contention could be made, consultation is mandatory. The proposed subsection 27(1)A provides guidelines; these are the guidelines to which Senator Spindler referred. They are only guidelines and should not be seen to pre-empt the primary responsibility for proper decision making under section 27A. I have been informed that, as part of the normal practice, once the legislation is passed the Attorney-General's Department will issue an FOI memorandum setting out in greater detail the circumstances in which the primary responsibility would be discharged. The development of that memorandum could involve consulting with Senator Spindler to see what points he would like us to take into account.

  That is not the only unintended consequence of the 1988 and 1991 amendments. One consequence that, I suppose, we should all be concerned about is that the inflexibility, I am informed, has led to an increase in costs to an FOI applicant arising from both unnecessary consultation about information and, of course, the provision of information which quite often can be on the public record.

  For example, I am told that, in the case of a departmental file cover which shows only the names of the 20 officers who handled the file over a period of many years, each and every one of those officers would have to be consulted to see whether they objected to such disclosure. Senator Spindler might say that this happens only in extreme cases, but it is amazing how often these sorts of cases do arise and it is amazing what sort of needless inconvenience they can cause. As I say, the current law would require each of those officers to be consulted to see whether they objected to disclosure. This consultation process could, I am informed further, conservatively add some $200 to $400 to the charges to be paid by an FOI applicant.

  Finally, it is possible for an agency to claim that the consultation process in such a case would unreasonably divert agency resources. For instance, if 100 people made submissions to an inquiry and a list of them appeared as an appendix to the published report of that inquiry, when the list is found on an agency file it will attract under section 27A the requirement to consult all of those people. The time and expense of such consultations would be sufficient in respect of a smaller agency to amount to an unreasonable diversion of resources. The agency could therefore refuse the FOI request. Without this requirement, the FOI request of course could be quite easily managed by the agency.

  For these reasons the government is concerned to obtain some flexibility in the operation of the law in this area. We could consult with Senator Spindler on the development of those guidelines and maybe in doing so overcome some of the problems he might have.