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Thursday, 28 June 2018
Page: 4414


Senator PATRICK (South Australia) (18:57): by leave—I move items (1) and (2) on sheet 8458:

(1) Clause 2, page 3 (at the end of the table), add:

11. Schedule 8

The day after this Act receives the Royal Assent.

 

[consequential—commencement]

(2) Page 86 (after line 10), at the end of the Bill, add:

Schedule 8—Amendments relating to access to information

Archives Act 1983

1 At the end of Division 4 of Part V

Add:

55B Reporting on external legal expenses

(1) The annual report prepared by the Director-General under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must:

(a) list each application to the Archives for access to a record in which external legal expenses have been incurred by the Archives; and

(b) provide the particulars of the external legal expenses incurred by the Archives in relation to each of those applications.

(2) The particulars published under subsection (1) must include the total external legal expenses incurred by the Archives in relation to each application including, but not limited to, any external legal expenses incurred:

(a) in making an initial decision in relation to an application for access to a record;

(b) as part of an internal reconsideration of a decision under section 42;

(c) as part of a review by the Tribunal of a decision of the Archives; and

(d) as part an appeal to the Federal Court of Australia from a decision of the Tribunal.

(3) In this section:

external legal expenses includes:

(a) any fees or other expenses charged to the Archives for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and

(b) any fees or other expenses charged to the Archives by external legal advisers associated with specific litigation in relation to an application (including any fees charged by the AGS).

Note: Section 55P of the Judiciary Act 1903 provides that the AGS may charge for services.

Australian Information Commissioner Act 2010

2 At the end of section 10

Add:

(3) However, the Information Commissioner must not review decisions under Part VII of the Freedom of Information Act 1982 unless he or she holds the qualifications mentioned in subsection 14(3).

3 Subsection 12(2)

Repeal the subsection, substitute:

(2) The Privacy Commissioner may also perform the freedom of information functions (except he or she must not review decisions under Part VII of the Freedom of Information Act 1982 unless he or she holds the qualifications mentioned in subsection 14(3)).

4 At the end of section 14

Add:

Separate commissioners to be appointed

(5) The same person must not simultaneously hold more than one appointment (including an acting appointment) as an information officer.

Note: For acting appointments, see section 21.

Information officer positions not to be vacant for more than 3 months

(6) The office of an information officer must not be left vacant for more than 3 months.

5 Subsection 21(1) (note)

Omit "Note", substitute "Note 1".

6 At the end of subsection 21(1)

Add:

Note 2: Subsection 14(5) provides that the same person must not simultaneously hold more than one appointment (including an acting appointment) as an information officer.

Note 3: Subsection 14(6) provides that the office of an information officer must not be left vacant for more than 3 months.

Freedom of Information Act 1982

7 Subsection 4(1)

Insert:

transfer application has the meaning given by subsection 55JB(2).

8 Subsection 11C(6)

Repeal the subsection, substitute:

Time for publication

(6) The agency or Minister must comply with this section in the period commencing on the tenth working day after the day the person is given access to the document and concluding on the 14th working day after the day the person is given access to the document.

9 After section 55E

Insert:

55EA Procedure in IC review—consistent application of exemptions by decision -maker

Where an agency or Minister who made the relevant IC reviewable decision:

(a) provides assistance to the Information Commissioner under section 55DA; or

(b) is required to provide an adequate statement of reasons under section 55E; or

(c) provides any other information, submission or document to the Information Commissioner as part of an IC review;

the agency or Minister must not, in providing the assistance, adequate statement of reasons or other information, rely on any exemptions in Divisions 2 and 3 of Part IV that were not relied upon in making the IC reviewable decision.

10 At the end of Division 6 of Part VII

Add:

55JA Procedure in IC review—notice requirement if lengthy review

(1) The Information Commissioner must, as soon as practicable, notify an IC review applicant if:

(a) he or she considers that it is likely that more than 120 days will elapse between:

   (i) the time the relevant IC review application is received by the Information Commissioner; and

   (ii) the time that a decision will be made by the Information Commissioner under section 55K; or

(b) 120 days has elapsed since the time the relevant IC review application was received by the Information Commissioner.

(2) The notice must state that an application to transfer the IC review application to the Tribunal may be made under section 55JB.

55JB Procedure in IC review—transfer to Tribunal

(1) If the Information Commissioner has issued a notice under section 55JA, an IC review applicant may apply to transfer their IC review application to the Tribunal.

(2) An application under subsection (1) is to be known as a transfer application.

(3) A transfer application must be in writing and must be sent to the Information Commissioner.

(4) A transfer application must be made within 28 days after the day on which the notice under section 55JA was given to the IC review applicant.

(5) A transfer application is not required to be accompanied by any fee.

(6) On receipt of a transfer application the Information Commissioner must:

(a) transfer the IC review application to the Tribunal; and

(b) give the Tribunal any information or documents that relate to the review in the possession, or under the control, of the Information Commissioner; and

(c) notify the IC review applicant in writing that the IC review application has been transferred.

(7) An IC review application transferred under subsection (6) is taken to be an application to the Tribunal for a review of the relevant decision made in accordance with the requirements of section 29 of Administrative Appeals Tribunal Act 1975.

11 After subsection 57A(1)

Insert:

(1A) To avoid doubt, if an IC review application is transferred to the Tribunal under section 55JB the Tribunal may review the IC reviewable decision to which the IC review application relates.

12 After section 93

Insert:

93AA Reporting on external legal expenses

(1) The annual report prepared by the principal officer of an agency must:

(a) list each request made under section 15 to:

   (i) access a document of the agency; or

   (ii) access an official document of the agency's responsible Minister in which external legal expenses have been incurred by the agency; and

(b) provide the particulars of the external legal expenses incurred by the agency in relation to each of those requests.

(2) The particulars published under subsection (1) must include the total external legal expenses incurred by the agency in relation to each request including, but not limited to, any external legal expenses incurred:

(a) in making an initial decision in response to the request;

(b) as part of an internal review;

(c) as part of an IC review;

(d) as part of an appeal to the Federal Court of Australia on a question of law under Division 10 of Part VII;

(e) as part of a review by the Tribunal under Part VIIA;

(f) as part of an appeal to the Federal Court of Australia from a decision of the Tribunal.

(3) In this section:

external legal expenses includes:

(a) any fees or other expenses charged to an agency for the provision of legal advice by external legal advisers (including any fees charged by the Australian Government Solicitor (the AGS)); and

(b) any fees or other expenses charged to an agency by external legal advisers associated with specific litigation in relation to a request (including any fees charged by the AGS).

Note: Section 55P of the Judiciary Act 1903 provides that the AGS may charge for services.

In my speech in the second reading debate, I expressed regret that the PJCIS did not examine the question of official secrecy and media and public access to government information from a wider perspective. It is vital that, whenever the parliament seeks to clamp down on unauthorised disclosures of government information—and there are reasonable grounds to replace what are antiquated provisions of the Crimes Act—we should also consider measures that would make government more transparent and assist the role of media and citizens in accessing information under the law.

Freedom of information must always be a counterpoint to official secrecy. Freedom of information provides the lawful means for citizens, the media and parliamentarians to obtain access to what is, at the end of the day, information that belongs to the public. I might point out that, in circumstances where we routinely find that the government doesn't respond properly to orders for production, FOI is an important tool for the parliament.

The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 significantly tightens control over government information, especially classified national security information. It will increase the penalties on those persons within government who disclose classified information without authority. It will probably make it more likely that a person who leaks information without authority will be caught and prosecuted. It does provide protection for persons making disclosures of information to oversight bodies such as the Inspector-General of Intelligence and Security and the Ombudsman.

It significantly improves the Commonwealth's power to control and protect classified information. But it does absolutely nothing to improve the ability of the public, the media or, indeed, this parliament to secure the release of government information through FOI, including through independent review of the claimed classified status of information. For some of you who may not be aware of it, sometimes when claims are made about a document being secret, or even top secret, those matters can ultimately be determined by the courts, and have been in the past. Indeed, in certain circumstances the High Court has overridden the government's claim of material being classified.

To remedy this significant deficiency Centre Alliance is moving this amendment which is designed to significantly improve the effectiveness of Australia's freedom of information laws. The amendments insert a new schedule 7 into the bill, which would amend the Freedom of Information Act, the Australian Information Commissioner Act and the Archives Act. These changes are designed to address the considerable dysfunction that has developed in our freedom of information system, which is now characterised by chronic bureaucratic delay and obstruction, unacceptably lengthy review processes, often prohibitive expenses for the applicants, increased preparedness by agencies to incur very large legal expenses to oppose the release of information and the deliberate undermining by the current government of the Office of the Australian Information Commissioner.

I'm happy to advise that after a year and a half of fighting the government to try and find out what the ISDS costs were under FOI—I've been through a process of obstruction—in this instance I managed to win. The Information Commissioner ordered the government to disclose information to me. Indeed, when that occurred, the government challenged it in the AAT. There are significant legal expenses involved for the Commonwealth to challenge the Information Commissioner's ruling. Fortunately for me, I had some assistance from some willing solicitors and barristers. And I now find, thankfully, that the Commonwealth has pulled out of the proceedings. They've decided to surrender in that instance. Accessing information under FOI can be quite a lengthy and difficult process.

The specific changes I propose in this bill include requiring the government to fill all three offices of the Australian Information Commissioner—the Privacy Commissioner, the Freedom of Information Commissioner and the Information Commissioner. Since 2014, even though, in my view, the legislation—it's Labor's legislation—makes it very clear that there should be three commissioners, since 2014 we have been left with only one. That certainly has frustrated people in getting access to information.

I also propose allowing FOI applicants to elect to have their matters bypass the Information Commissioner, who can take more than a year to make a decision on a controversial issue, and instead take it to the AAT. Another benefit of these amendments includes granting an FOI applicant the right to switch a review into the AAT without charge in the event that the Information Commissioner takes, or indicates that he will take, more than 120 days to make a decision. Going to the AAT involves a cost. I think it costs more than $800 to make an application. We shouldn't put citizens in a situation where they have to pay because we simply haven't resourced the Information Commissioner properly.

This amendment also seeks to prevent agencies from making submissions to the FOI decision reviews that have not been advanced by the agency in its internal decision-making, so they can't switch exemptions halfway through a review as often happens now. In effect, this allows the agency to re-make a decision halfway through a review—something that's not normally permitted in other merit reviews. What happens is that the department advances an exemption, you get a significant way through an information commissioner's review and the government realises it's on shaky ground, so it switches the exemption. The normal principle in any merit review is that once you hand responsibility for the review to a commissioner the agency is not allowed to re-make the decision. The decision is now in the hands of a commissioner or some sort of review body.

Next is preventing the Information Commissioner from making a FOI decision if he or she does not hold the legal qualifications required of the FOI commissioner. When Timothy Pilgrim was in office—and I have great respect for Timothy Pilgrim; this is not a criticism of him—he made FOI decisions, for a number of years, when he did not possess a legal degree. The act made it very clear that, if you were a FOI commissioner, you had to have a law degree. You had to understand how to read case law and how precedence worked. We have a situation now where there is a loophole in the act that says the Information Commissioner can make FOI decisions and doesn't have to have a legal qualification.

Another thing I'd like to see happen, which we're attempting to do in this amendment, is the prevention of agencies from publishing information released under FOI until 14 days after the applicant has received his or her copy of the information. That's designed to encourage journalists to use FOI properly and not have a story gazumped by the agency simply publishing FOI information immediately after a two-year fight to get access to information. That's an improvement specifically targeted at journalism.

Next is requiring an agency to publish its external legal expenses for each information commission or AAT FOI matter that has concluded. I know of one person who has been involved in a FOI matter that cost half a million dollars—I correct myself; it is an Archives-related matter, seeking access to archived information. The government spent half a million dollars trying to prevent someone getting access to archived data; the matter is still ongoing. We should at least get agencies to publish the amount of money that they're spending on legal costs in opposing citizens getting access to information. Having said that, there is an amendment in there that would apply to legal expenses in circumstances where someone makes an application to the National Archives.

This is a comprehensive array of reforms that reflects the practical experience of journalists, researchers and members of parliament seeking information under FOI or, indeed, the Archives Act. Passage of these measures would significantly enhance the operation of our freedom of information laws. They would be of benefit to journalists. As I suggested, there would also be a benefit to members of parliament. They would benefit any citizen seeking access to FOI laws.

Some senators may say that these matters should be addressed elsewhere, but Centre Alliance is of the view that they are very appropriately addressed here, in the context of a bill that will otherwise enhance the government's control of official information. Senators have the same opportunity to consider these amendments as they do any other amendments to this bill. However, it should be said that these amendments are less complex and more unambiguously beneficial than many of the provisions in this very complex legislation that we're dealing with tonight. Centre Alliance commends these amendments to the Senate and commits to continue to pursue comprehensive FOI reforms and improvements at every opportunity.