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Thursday, 13 May 2010
Page: 2835


Senator SHERRY (Assistant Treasurer) (10:42 AM) —I table three revised explanatory memoranda relating to the bills and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Australian Information Commissioner Bill 2010

The purpose of the Australian Information Commissioner Bill 2010 is to establish the Office of the Information Commissioner.

The Bill will implement the structural reforms outlined in the Government’s election commitment, Government information: restoring trust and integrity. Together with the Freedom of Information Amendment (Reform) Bill 2010, it constitutes the second stage of the Rudd Government’s overhaul of FOI.

The new Office of the Australian Information Commissioner will bring together the independent oversight functions for privacy protection (principally regulated by the Privacy Act 1988) and for access to government information (regulated by the Freedom of Information Act 1982). The Government considers that the co-location of privacy and FOI policy will enhance oversight and allow for consistent information policy.

For this purpose, the Bill creates two new independent statutory positions of Australian Information Commissioner and Freedom of Information (FOI) Commissioner. It also makes provision for the appointment of the Privacy Commissioner in this legislation instead of under the Privacy Act 1988. The Government moved an amendment, implementing the Senate Finance and Public Administration Committee’s recommendation to refer to the new office holder as the Australian Information Commissioner.

The absence of an independent statutory monitor for FOI was identified as an impediment to effective administration of the FOI Act in the joint 1995 Australian Law Reform Commission and Administrative Review Council Open Government report and later by the Commonwealth Ombudsman. To correct that deficiency, the Australian Information Commissioner and FOI Commissioner will have broad ranging FOI functions. They will ensure a constant voice which not only addresses poor FOI practices, but also addresses attitudes that are not conducive to the presumption of openness which is intended by the Government’s FOI reforms.

The nature of the FOI functions and privacy functions are too extensive for one office holder to effectively manage. Conversely, the appointment of multiple statutory officers of equal standing does not present an effective governance model. The Bill establishes the Australian Information Commissioner as head of the Office for both strategic and administrative purposes. It is intended that the FOI Commissioner will be mainly responsible for the FOI functions, and that the Privacy Commissioner will be mainly responsible for privacy functions.

While the Government expects that the three office holders will work together cooperatively, the Bill makes provision for the Australian Information Commissioner’s view to prevail in any disagreement on matters which involve substantial policy decisions. Provision is also made to ensure that there is no duplication in the performance of essential determination functions.

The FOI functions include those functions that will make the Information and FOI Commissioners strong advocates for FOI, such as promoting awareness, issuing guidance, monitoring compliance and providing training and assistance. It is intended that the Office of the Australian Information Commissioner will be a resource for agencies as well as for the public. The Commissioners will also be given a function of undertaking merits review of access decisions and investigating complaints. The comprehensive nature of the Commissioners’ FOI functions is in keeping with the Government’s intention to provide a central clearing house for FOI matters.

The privacy functions are those functions now performed by the Privacy Commissioner. The Government is currently embarking on reforms to the Privacy Act by preparing draft legislation for release for public consultation later this year. Any changes that are made to the functions and powers of the Privacy Commissioner following the Government’s privacy reforms will of course be aligned with the new structure created in this Bill.

The Bill also gives the Australian Information Commissioner a discrete function of advising the Government on information management policy. That function reflects the capacity for the new structure to generate strategic advice to Government on broader information management policy and practice, including in the use of systems employed in information management. Consistent with the objective of achieving a coordinated approach to information management policy across government, the Australian Information Commissioner is to be assisted by an Information Advisory Committee. The Committee will be chaired by the Australian Information Commissioner and will comprise senior executives from key agencies and other persons outside government who have suitable experience or qualifications.

The establishment of an Office of the Australian Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.

In February this year, the Rudd Government showed its commitment to reform in the area of government information by appointing Professor John McMillan AO as the Information Commissioner Designate. As everyone in this chamber is aware, Professor McMillan has extensive experience, including as the Commonwealth Ombudsman for the past seven years and as a campaigner for Australia’s first FOI Act in the 1970s, which makes him an excellent choice for Australia’s first Information Commissioner. After the Australian Information Commissioner Bill 2010 is enacted, I will recommend to the Governor-General in Council that she appoint Professor McMillan as the Australian Information Commissioner.


Freedom of Information Amendment (Reform) Bill 2010

The main purpose of the Freedom of Information Amendment (Reform) Bill 2010 is to amend the Freedom of Information Act 1982 (FOI Act) to usher in a new regime for access to government information.

When Labor was in opposition, I was one of the key drafters of Labor’s policy for restoring trust and integrity in government. A core element of this policy was to overhaul Australia’s antiquated FOI laws, which, after over a decade of the Howard Government’s culture of concealment, were in serious need of reform.

When the Rudd Labor Government was elected in 2007, we immediately started work to fulfil our commitment to undertake the most significant overhaul of the FOI Act since its commencement in 1982.  We committed to driving a cultural shift across the bureaucracy to promote a pro-disclosure attitude and we’re fulfilling that commitment.

The Government has already delivered the first stage of FOI reform, introducing and passing legislation to remove the power to issue conclusive certificates in the FOI Act and the Archives Act 1983.

This Bill, together with the Australian Information Commissioner Bill 2010, meets the Rudd Government’s remaining FOI election commitments, which are designed to restore trust and integrity in the handling of government information. 

The two Bills are the product of a participatory process.  The Government consulted a number of stakeholders and then released exposure drafts of each Bill for public comment in March last year.

The Bills were also referred to the Senate Finance and Public Administration Committee for inquiry. Witnesses to the Committee were overwhelmingly in favour of the Bills being immediately passed through Parliament.

In its report on the two Bills, the Senate Finance and Public Administration Committee made three recommendations for amendment.  The Government moved amendments to implement two of those recommendations, namely to establish the Information Commissioner as the Australian Information Commissioner and to provide for the Commissioner to be a member of the Administrative Review Council. 

The Committee’s recommendation to amend the Freedom of Information Amendment (Reform) Bill to remove the concept of onus in both review proceedings by the Australian Information Commissioner and the Administrative Appeals Tribunal (AAT) is not supported by Coalition Senators, nor by some stakeholders who use the FOI Act. 

The Government does not accept that the Committee’s recommendation to remove the onus would have disadvantaged applicants. The removal of the onus was recommended to ensure that FOI applications were not treated as adversarial court processes. Notwithstanding this view, the Government has decided to retain the concept of onus in FOI proceedings, making it clear that the Bill is designed to make access to documents easier for applicants, with the agency or Minister under an obligation to justify why non-disclosure is necessary. 

Under an existing obligation in the AAT, an agency or Minister is required to use their best endeavours to assist the AAT to make a decision on an FOI review application.  That obligation will also be applied to a review by the Australian Information Commissioner.

Proposals in the Freedom of Information Amendment (Reform) Bill are also drawn in part from the key findings of the 1995 joint Australian Law Reform Commission and Administrative Review Council Open Government report.  The report’s key findings have been updated and supplemented by other measures to deliver better access to government information.

Given all of these consultation and review processes, the Government considers that the Bills will deliver the intended shift to a culture of disclosure across Government and more effective and efficient access to government information.  They will directly address the culture of secrecy that thrived under the Howard Government.

The Rudd Government remains responsible and accountable to the people it serves.  This Bill amends the objects clause of the FOI Act to expressly refer to the important role that access to government information serves in promoting Australia’s representative democracy. 

In pursuit of the FOI Act’s objective to give the Australian community access to government held information, the existing limited publication requirements under Part II of the Act are to be replaced. The Bill provides for a new framework which will require pro-active publication of information by agencies.  This new publication scheme will require agencies to actively consider the types of information they have which can and should be made available to the public. This measure represents a significant shift away from the current system that is predominantly reactive; responding only to requests that have been made. 

The publication of information, which will be primarily web-based, needs to be structured, informative and user friendly.  The Australian Information Commissioner, an office which will be created by the Australian Information Commissioner Bill 2010, will be responsible for ensuring this occurs. The Australian Information Commissioner will be responsible for issuing guidance to agencies on how they can ensure optimal publication.  Agencies will also be required to develop plans showing what information they will publish to further the objectives of the Act. 

The Bill also proposes many changes to improve the effectiveness of the FOI application system.  The changes are closely entwined with the structural reforms proposed by the Australian Information Commissioner Bill 2010.  The aim of these measures is to ensure that the public interest in disclosure remains at the forefront of decision making, and that the right of access to documents is not unduly restricted by liberal application of exemption criteria. 

A new, single form of public interest test weighted towards disclosure will be introduced and the test will be applied to more exemption categories than is currently the case.  The public interest test is to be added to the economy, research and personal information exemptions and is to be partially applied to the business affairs exemption.  In response to public consultation, the public interest test will not be applied to that part of the business affairs exemption which relates to documents disclosing trade secrets or commercially valuable information.

Decision makers will be required to address the public interest factors taken into account in their reasons for the decision.  The Bill does not seek to exhaustively define public interest factors.  It has long been recognised that the categories of public interest are not closed. The public interest will vary depending on the subject matter. 

Certain factors which are not conducive to open and accountable government, including arguments solely concerned with political sensitivity, will not be able to be used as factors supporting non-disclosure of documents.  This extends to submissions ordinarily associated with the deliberative documents exemption, for example, that disclosure would cause a loss of confidence in the government or cause embarrassment to the government.  In keeping with the intention of the reforms to promote disclosure, the Bill lists some pro-disclosure factors but does not list factors against disclosure. 

The Bill will repeal exemption categories for Executive Council documents, documents arising out of companies and securities legislation, and documents relating to the conduct by an agency of industrial relations. 

The Bill also proposes two limited exclusions from the operation of the FOI Act for certain intelligence related information.  The public interest in maintaining confidence in the information must clearly outweigh the public interest in access to that information.  The nature of intelligence agencies’ functions and some programs which operate to ensure Australia’s strategic defence are such that those intelligence functions would be compromised by public dissemination of that information.  These functions cannot be carried out with the same level of transparency ordinarily expected of administrative action.  This is recognised by the special accountability systems in place for the intelligence agencies through the Parliamentary Joint Committee on Intelligence and Security and the Inspector-General of Intelligence and Security. 

A substantial change which will significantly increase accessibility to information will be reducing the term during which the FOI Act governs public access to government information, and accelerating the application of the Archives Act.  The Bill amends the Archives Act to bring forward the open access period for all records (other than Cabinet notebooks and census information) from 30 years to 20 years.  The open access period for Cabinet notebooks is to be brought forward from 50 years to 30 years.  These measures will make government information available earlier under the Archives Act. 

The Bill also amends section 33(1)(b) of the Archives Act to address concerns with the current application of the provision.  Decisions made by the Australian Government on section 33 exemptions will be made consistent with past practice and our international obligations, and will be based on the national interest and based on the views of partner governments.

The Government recognises that the promise of better information disclosure requires structural reforms.  The establishment of an Australian Information Commissioner and FOI Commissioner, as independent officers, will address a long-standing lacuna in effective FOI administration.  In addition to promotional, monitoring and guidance functions, the Commissioners will directly participate in the process by reviewing access decisions made by agencies and Ministers.  Review of a decision by the Australian Information Commissioner will not replace review by the AAT.  A party can still apply for AAT review after an Information Commissioner review if needed.  Both forums will offer full independent merits review, unfettered by the limiting effects of conclusive certificates.  Retaining an option of review by the AAT, an experienced review body, will be particularly important for highly contested FOI matters. 

Australian Information Commissioner review will be characterised by reduced formality and adversarial contest, with most applications determined on the papers.  The Commissioners will be able to dispose of an application where an agreement is reached between the parties or by determination if no compromise is reached.

Following public consultation on the exposure draft of the Bill, the Government has amended the Bill to provide that the applicant will have the option of seeking internal review or going directly to the Australian Information Commissioner for review of an initial FOI decision.  By making internal review optional, agencies should be encouraged to make the best possible access decision at first instance.

There is potential for a substantial resource impost in the maintenance of an effective FOI system. That impost in part exists because not all government information can properly be released and so it can take time for agencies to work out what information can be released and what cannot.  The broad range of FOI functions to be vested in the Information and FOI Commissioners are designed to ensure the objects of the Act are achieved with as minimal contest, and therefore cost, as possible.  That includes fostering a pro-disclosure culture among agencies.  To manage access requests that are manifestly unreasonable, the Australian Information Commissioner is given a power to restrict an applicant’s access rights by declaring them to be vexatious.  Provision is also made to enhance consultation provisions for dealing with onerous or vague requests for documents.

The Australian Information Commissioner will also take over the bulk of the role of the Ombudsman in investigating complaints about handling of FOI requests.  However, the Ombudsman will still have capacity to investigate complaints which relate to FOI where it would be more appropriate or effective for the Ombudsman to do so. 

One aspect of the current law which has restricted the public’s access to information is cost. Cost should not deter reasonable requests for access to information.  The Bill, together with amendments proposed to regulations, remove all application fees, including for internal review. 

No costs will apply for access to a person’s own information.  Every applicant will receive some free decision making time. Journalists and not-for-profit organisations will receive the first five hours of decision making time free and all other applicants will receive the first hour of decision making time free.  Some of these measures will be implemented through amendment to regulations.  The regulations will also be amended so that if there is a failure to comply with a statutory time period, any charges will be waived.

Not all these measures received support in the Senate inquiry and some submissions called for wider changes.  The Government will ask the Australian Information Commissioner to undertake a review of the charges system within 12 months of the Commissioner’s appointment.  That review will be comprehensive and will include the effectiveness of measures taken as part of these reforms to reduce the cost of FOI access for applicants.

The Government has allocated $19.5 million over 4 years from 2009-10 for the establishment and running of the Office of the Australian Information Commissioner (in addition to existing resources for the Office of the Privacy Commissioner).

While the Privacy Act 1988 largely regulates the handling of personal information by Commonwealth agencies, access to and correction of a person’s own information is currently enforced through the FOI Act.  Around 85-90 percent of FOI requests annually are for personal information.  The Government proposes to amend the Privacy Act so that it is the principal legislation which provides for an enforceable right of access to, and correction of, an individual’s own information.  That proposal will be addressed in legislation covering broader reforms to the Privacy Act which I expect to release for public consultation later this year.

The Government believes the legislation now before the Parliament comprises a strong package of measures to enhance access to information for the Australian public. 

To ensure the reform package delivers effective change, provision is made in the Bill for the Act to be reviewed two years after the commencement of the reforms.  The review will be comprehensive, and will necessarily cover all aspects of FOI, including how well the two-tier review system is working, how the Office of the Australian Information Commissioner is operating, the exemptions in the Act, and agencies’ implementation of the new information publication scheme.

In order to address the concerns raised by the Australian Greens, the review will also need to include a consideration of whether the exclusion of agencies, including intelligence agencies, from the application of the Act is still appropriate and necessary. Naturally, such a consideration would require reference to international practice and consideration of what is in the Australian public’s interest.

Unlike our predecessors, this Government recognises that transparent and open government is a key component of a healthy and vibrant democracy.  When the Rudd Government was elected, Labor committed to significantly reform Freedom of Information laws and these Bills fulfil the Government’s promise to the Australian public.


Health Practitioner Regulation (Consequential Amendments) Bill 2010

This bill supports the implementation of the National Registration and Accreditation Scheme for health professions.

I am very proud to be standing here today introducing this legislation - this Bill is a landmark reform for our health system.

With this Bill, for the first time there will be a national system for the registration and accreditation of 10 health professions- bringing consistency and uniform standards to our health workforce.

Queensland, New South Wales and Victoria have already passed the Bills which will put in place the national system. The ACT and Northern Territory have introduced their Bills and South Australia, Tasmania and Western Australia are well advanced in their planning.

National registration has been a long time coming - the previous government, with the current Leader of the Opposition as Minister for Health, identified it as a goal, and then decided to sit on his hands. After years of blaming the states and territories for all the problems in the health system, he was unable to work with them to deliver this key health reform.

Just as he sat on the sidelines whilst 60 per cent of Australians suffered from a shortage of doctors, he dithered on this important workforce reform.

The Rudd Government recognised that this goal was one that had stalled and needed pursuing - we immediately got to work with the States and Territories - and in March 2008 signed an intergovernmental agreement to progress the National scheme.

We know that a National scheme could reduce red tape, increase standards and improve safety for the Australian community.

We also know that a national scheme will improve the mobility of the health workforce. It will stop health professionals for having to re-register every time they step across a State border, saving time, money and inconvenience. This for example will help to boost locum support for rural doctors as Doctors become freer to work across State boundaries.

On 3 November 2009, the Health Practitioner Regulation National Law Act 2009 (Qld) received Royal Assent in the Queensland Parliament.

The National Law sets out the framework for the scheme, covering registration of health practitioners and accreditation of health education and training, complaints, privacy and information sharing, and transitional arrangements.

The Commonwealth does not need to apply the National Law, however consequential and transitional amendments are required to the Health Insurance Act 1973 to ensure that medical practitioners continue to retain the same Medicare billing eligibility from 1 July 2010.

It also streamlines the extensive systems involved in registration and recognition of medical practitioners for Medicare purposes ensuring reduction of red tape, currency of the Health Insurance Act 1973 regulations and adequate access to Medicare rebates and retention of practitioners in Australia.

Streamlining the recognition of doctors for Medicare purposes

The current pathways to specialist, consultant physician and GP recognition in the Health Insurance Act 1973 necessitate communication exchange between Medicare Australia and relevant organisations (such as medical colleges) to ascertain Medicare eligibility.

These arrangements have been put in place because previously there was variation across states and territories for the recognition of specialist qualifications and general practice qualifications in the registration process.

The National Registration and Accreditation Scheme provides a nationally consistent means of identifying both specialists and GPs, and the mandatory requirement for Continuing Professional Development in the Scheme means Medicare Australia is no longer is required to monitor whether practitioners providing a ‘Medicare rebateable service’ are meeting Continuing Professional Development requirements.

It is essential that the extensive systems involved in registration and recognition of doctors for Medicare purposes are streamlined to ensure reduction of red tape, currency of the Health Insurance regulations and efficient access to Medicare rebates.

The Health Insurance Act 1973 provides various pathways for recognising specialists, consultant physicians and general practitioners (GPs) for Medicare purposes.

This Bill provides an opportunity to streamline current specialist recognition processes under Commonwealth legislation.

This includes removing the current Vocational Register of General Practitioners, particularly now that the Medical Board of Australia has recommended that Health Ministers endorse ‘general practice’ as a specialty for the medical profession.

I am aware that the Medical Board of Australia is soon to make decisions about the eligibility requirements for the General Practitioner specialty register.

I can assure the House that this bill will not disadvantage medical practitioners that are currently registered in states and territories.

In particular, it will not disadvantage any GPs that are currently on the Vocational Register whether or not they have a fellowship of the Royal Australian College of General Practitioners or the Australian College of Remote and Rural Medicine.

Streamlining specialist recognition will also facilitate workforce mobility and access to Medicare for International Medical Graduates.

Conclusion

The National Registration and Accreditation Scheme for health professions will modernise the regulation of health professionals by creating a single regulatory environment.

By ending the duplication of effort, multiple standards and red tape caused by separate systems in each state and territory, we will have a more workable registration scheme for Australian patients and practitioners that also contributes to improving the safety of our health system for all Australians.

It provides the community with the reassurance that health professionals across Australia meet a common set of standards. Our health workforce will also benefit from the improved mobility the national scheme will offer.

I would like to extend my thanks to all of the professional groups who have constructively engaged in an incredibly complex task over four years - this includes the current State and Territory Health Professional Boards who have faced enormous change.

I would also like to recognise the expertise and hard work of the officials who have undertaken the work that is making National Registration a reality.

Lastly I acknowledge my Ministerial colleagues around the country who are all committed to a National scheme for the registration of health professionals- and put the national interest first.

I look forward to the National Law being adopted in the remaining jurisdictions over the coming months and the implementation of a National registration and accreditation scheme for the first time in Australia.

Debate (on motion by Senator Sherry) adjourned.

Ordered that the resumption of the debate be made an order of the day for a later hour.

Ordered that the Health Practitioner Regulation (Consequential Amendments) Bill 2010 be listed on the Notice Paper as a separate order of the day.