Monday, 14 September 2009
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
It is not often that I get asked to speak, as my good friend the member for La Trobe would know! Before I start—and with your indulgence, Mr Deputy Speaker, and very briefly—I want to speak about a very good friend of mine who is on my right-hand side: the honourable member for Denison, Duncan Kerr.
I learnt with a great degree of sorrow last week that the member for Denison was leaving this place as of the next election. I say from a personal perspective that I think the parliament is losing one of its great characters and one of its great consciences. I had the honour and the privilege of serving with Duncan on the Parliamentary Joint Committee on Intelligence and Security, formerly known as the Parliamentary Joint Committee on ASIO, ASIS and DSD. I came to know Duncan predominantly through that exercise. I respected his opinions. I respected the thought that he gave to the issues at hand. I say, Duncan, that I really do think your departure is a great loss. As your friend and as someone who has served with you, I say it has been a great honour serving with you, and I wish you all the best in the future. Thank you very much, Mr Deputy Speaker, for granting me your indulgence; it was the first opportunity I have had since the announcement. And thank you to the other side for their indulgence.
Addressing the issue at hand, which is the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008: the purpose of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 is to amend the Freedom of Information Act 1982 (FOI Act) and the Archives Act 1983 to remove the power to issue conclusive certificates.
The bill implements an election commitment to abolish conclusive certificates and marks the first step in the government’s plan to undertake the most significant overhaul of the FOI Act since its inception in 1982.
The government released draft bills for public comment in March 2009 addressing its remaining FOI election commitments, as outlined in the policy statement Government information: Restoring trust and integrity.
Proposals in those bills are in part drawn from key recommendations of the joint Australian Law Reform Commission and Administrative Review Council 1996 Open government report. While more than a decade has been lost on FOI reform under the Howard government, the Rudd government is moving ahead on these issues to ensure that we have a more open, more transparent and more accountable government.
The broader package of reform measures focuses on fostering a pro-disclosure culture across government and includes the establishment of an information commissioner and an FOI commissioner who will be independent statutory officers and champions for FOI.
With respect to conclusive certificates, the repeal of the power to issue conclusive certificates is an important step in achieving greater accountability in government decision making on access requests under the Freedom of Information Act and Archives Act. Conclusive certificates act as a bar to someone seeking access to a document under FOI. The effect of a minister placing a conclusive certificate on a document is to limit the capacity for the Administrative Appeals Tribunal—otherwise known as the AAT—to review the exemption claim underlying the certificate. Under the current act, where a conclusive certificate applies, the AAT’s jurisdiction is limited to determining if reasonable grounds exist for the exemption claim. But even if the AAT were to find that no reasonable grounds exist for the exemption claim, a minister may continue to refuse to allow access to the document.
Those limitations on external review should not be preserved. The external administrative review system was still relatively young at the time of the commencement of the FOI Act. Now, after more than a quarter of a century, the proven strength of that system greatly diminishes the need for executive control over an independent review process for document access. More importantly, I passionately believe that public confidence is increased in government decisions if they are open to being fully tested by an independent review process. For this reason, the government believes that all exemption decisions under the FOI Act and the Archives Act should be subject to full external merits review.
Abolishing the power to issue conclusive certificates does not mean information that should be protected against disclosure will be released. Where an exemption claim properly applies to a document, that exemption will continue to provide protection against its disclosure. Should an exemption claim be the subject of a review application to the AAT, parties will still be able to appeal from an AAT decision to the Federal Court on a question of law. That is the position that applies now for exemption claims that are not supported by a conclusive certificate.
The bill provides for existing conclusive certificates to be revoked if and when a new request for access to documents covered by a certificate is received. In effect, revocation will be deemed to have taken effect at the time any new request is received. A decision will then be made under the established processes on whether or not an exemption should be claimed for any document formerly covered by a certificate.
The bill also contains some consequential amendments to the FOI Act and the Archives Act that arise as a result of the repeal of conclusive certificates. It also introduces some measures that affect procedures in the AAT. Some of these measures are directed to ensuring that particularly sensitive information is not unnecessarily disclosed and apply to documents whose release could damage national security, defence or international relations, or would disclose confidential foreign government information or cabinet information.
To assist the AAT in reviewing an exemption claim to protect from disclosure national security documents and other sensitive information, the AAT will be required to call the Inspector-General of Intelligence and Security to provide expert evidence if it is not satisfied as to the merit of an exemption claim of this type.
I believe that the measures in the bill provide a fair balance between not unduly affecting procedural rights of applicants and ensuring appropriate safeguards for sensitive information.
The bill also addresses an anomaly affecting rights of access to documents relating to intelligence matters where they are held by a minister rather than an agency. Under the current act, a document held by an agency is excluded from the FOI Act if it has originated with, or has been received from, an intelligence agency or the Inspector-General of Intelligence and Security, but the same document would not be excluded if it happens to be held instead by a minister. The bill remedies this anomaly.
The measures in this bill deliver on the government’s election commitment to abolish conclusive certificates. They also establish a fair balance between ensuring appropriate safeguards are in place in the review process with respect to sensitive information while at the same time ensuring full independent merits review of agencies’ decisions on FOI.
In conclusion, this bill is a first step in FOI reform, but it is an important step in the government’s broader commitment to making government open, accountable and transparent.
I rise to speak on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 . The coalition believes that freedom of information, or the statutory right of access to government documents, is justified on the grounds that it encourages transparency and political accountability and discourages corruption and other forms of wrongdoing.
At the federal level, the Freedom of Information Act 1982, introduced by the Fraser government, formed part of a broader package of administrative law reforms in the 1970s and early 1980s and was the first national legislation of its kind to be introduced in a country with a Westminster-style system of government.
Moving on to the specifics of the bill, part VII of the FOI Act provides for categories of exempt documents. In respect of some of these categories, for example documents affecting national security, defence or international relations and certain internal working documents, the current provisions of the act enable ministers to certify that disclosure of the document would be contrary to the public interest.
An application may be made to the Administrative Appeals Tribunal, the AAT, only as to whether reasonable grounds exist for the exemption claim. If the AAT finds that reasonable grounds do not exist, the minister may then decide whether or not to revoke the certificate. If the minister decides not to revoke the certificate, he or she must table a notice in both houses of parliament stating the findings of the minister on any material question of fact, the material on which those findings were made and the reasons for the decision. Subject to this, however, the issue of a certificate is a bar to access to the document and to any further external review.
The proposed amendments contained in this bill will remove the power to issue conclusive certificates and will provide for full external merits review of a decision to exempt a document. Appeal to the Federal Court will be available from the decision of the AAT on a question of law. In addition, existing conclusive certificates will be revoked in the event that a new request for access is made in respect of documents subject to a certificate. However, the existing heads of exemption will continue to apply and the decision will need to be made as to whether exemption will be claimed.
Amendments are also proposed in relation to documents the disclosure of which might damage national security, defence or international relations or which would disclose confidential foreign government information or cabinet information. In respect of that material, if the AAT intends to adjudicate on the merits of an exemption claim it will be required to obtain expert evidence from the Inspector General of Intelligence and Security. There is also a proposed amendment to provide for exemption for material received by a minister from an intelligence agency. Currently, the exemption refers only to material held by an intelligence agency and not to such material when it has been transmitted to a minister, although other heads of exemption could be claimed.
The coalition is committed to open, responsible government. The Freedom of Information Act, which was introduced by the Fraser government, is a vital measure to ensure the government remains open, responsible and accountable for its decisions. Although conclusive certificates were seen as a necessary control on the flow of information at the time the FOI Act was introduced, the coalition agrees that certificates have the potential to act as a brake on the process and that sufficient measures exist elsewhere in the act to ensure that genuinely sensitive information receives the appropriate treatment.
We cannot agree with any suggestion that previous coalition governments have used the conclusive certificate regime to resile from their commitment to open, accountable government. An examination of the records will confirm that conclusive certificates were used very sparingly under the Howard government. On the information available, we can find evidence of only 12 conclusive certificates issued in the 11½ years of the Howard government. Records for the previous Labor government are extremely difficult to locate. However, it would seem that 55 were issued for the period between 1982 and 1986 alone, during most of which time the Hawke government was in power. The coalition, therefore, cannot be characterised as one that shied away from openness in government or as one that hid behind the conclusive certificate regime.
The coalition will support this bill. However, in closing, I would like to remind the House of the additional comments of the Liberal senators on the Standing Committee on Finance and Public Administration, which examined this bill. Those senators noted that the number of FOI applications received in 2007-08 declined by almost 30 per cent from 2005-06. Even so, the response time has lengthened: the number of requests responded to within 30 days has declined by 12 per cent while the number awaiting response after 90 days has more than doubled. Further, while the number of requests refused has remained constant, the number granted in full has declined by 12 per cent since 2006-07 and the number granted in part has increased correspondingly. Finally, despite the decrease in applications, the overall costs of providing FOI have increased by some 18 per cent. When the decline is taken into account, the average cost per application has risen by over 28 per cent. Accordingly, the Rudd government’s performance on FOI has demonstrably not matched its rhetoric. The true measure of the openness and transparency of a government is found in its attitude and actions when it comes to freedom of information. Legislative amendments, where there is need for them, are fine but governments with their control over the information in their possession can find ways to work the legislation to slow or control disclosure, and that is what we are seeing now. I thank the House.
I rise to speak in support of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008. Here in Australia we enjoy a very healthy democracy. It has endured since Federation without any civil wars or major crises in terms of democracy. That is leaving aside Western Australia’s late entry to the Federation—I think Western Australia also considered departing in the 1930s—and every now and again we hear from North Queensland that they would like to depart or at least form a separate state. We will also forget about 11 November 1975 and that attack on democracy by Sir John Kerr.
Leaving aside those things, Australia is in fact one of the five longest standing continuous democracies in the world. When citizens head to the polls, governments come and go without a shot being fired. It is not the bullet or the ballot, as Malcolm X talked about in one of his famous speeches; in Australia it is just the ballot for all. We have universal suffrage and no blood is shed when governments come and go, although there are a few tears from departing members of parliament. Basically, it is a very healthy democracy. We should be proud of it and we should strive to protect it and uphold it.
The recent elections in Afghanistan give us pause when asking what democracy is about. It was a great achievement for a desperate country, but also what a tragedy it has been—people risking life and limb to vote, and I mean literally risking limb. I heard media reports that the Taliban had threatened that people who had ink on their fingers—the ink used to mark the fact that they had voted—would then lose those fingers. That is a strong contrast with Australia, where if you do not vote you receive a fine. Maybe if we severed the fingers of people who did not vote we might get even closer to 100 per cent attendance on polling day! I do not think that we will go down that road. It now seems that it will be months before the result of the election in Afghanistan is known, as accusations of fraud, vote rigging and many other shenanigans are investigated and, eventually, resolved.
In contrast, I turn to Australia: obviously, we can be very proud of our very healthy democracy in Australia. It is a democracy on display in this House, where schoolchildren can visit and normally do not hear any swear words or see any untoward behaviour and where members of the public can come and watch democracy in action. It makes for a very healthy exchange of ideas. A healthy democracy also relies a lot on journalists—and I turn to an empty press gallery—as well as other individuals and community groups, who must be able to access government information. A healthy democracy relies on our government being transparent, open and accountable, always, to the people. Without this transparency even democracy can breed secrecy and corruption.
Looking back to my darker days, under the Sir Joh Bjelke-Petersen government in Queensland, this was unfortunately the reality. There was no culture of transparency—or even of democracy given that we had a gerrymander in certain parts of Queensland—and this bred secrecy and, eventually, corruption. Thankfully, a few good men and women had the courage to stand up against this atmosphere—resulting in the Fitzgerald inquiry. I thank the foresight of some of the government ministers of the day for signing off on that inquiry. I am not sure they knew what they were signing off on but it was certainly a courageous decision. The Fitzgerald inquiry shone a blowtorch on the Bjelke-Petersen government and since then Queensland has thrived as a progressive, open and accountable democracy. Undoubtedly there is definitely more work to be done, but I certainly have faith in one of my local state members, a lady by the name of Anna Bligh, the Premier of Queensland, and in the steps she has taken to ensure that the Queensland government remains accountable, transparent, progressive and open.
Government cover-up and secrecy also breeds cynicism in the community, and, frankly, the last thing we as politicians need is more cynicism about politics. I am not sure where our ranking currently is compared to lawyers and used car salesmen, but I know that we always hover around the bottom.
As a former lawyer and union official, and I have worked in the mining industry, I am not sure where that places me. It would not be at the top, although I was a teacher for a long time. As I said, we have to work hard if we want to protect the integrity of our democracy. To paraphrase a US patriot from another century, the price of democracy is eternal vigilance. That is why the Rudd government made an election commitment to restore trust and integrity to our political system. As well as bringing greater accountability to the area of political donations and gifts, the Rudd government is also improving laws concerning freedom of information. We are doing this because we want to make it easier for all people, including the media, to access information and promote greater openness and transparency in government.
The bill before the House repeals the power under the Freedom of Information Act and the Archives Act to issue conclusive certificates. These certificates are issued to support exemptions to refuse access to documents. They can be used by a minister to refuse access to documents, and it is the kind of system that promotes secrecy, which is not what good government is about. Unfortunately this was the system we inherited, but it is not the system that the Rudd government wants to keep. Instead, all decisions to claim exemptions will be subject to a review by the Administrative Appeals Tribunal. Obviously this is much fairer. We are not just relying on a whim or a capricious minister. Instead, there will have to be a defendable decision. Further, where conclusive certificates have been issued to protect documents previously, for example by former Liberal and Labor governments, these will be revoked when a request for access to those documents is received. Old applications will not automatically be revisited. However, an applicant who has had access refused can now make a new request. It does not mean access will be granted automatically as there may still be very valid reasons for refusing access in the first place. But refusal cannot just be at the whim of a minister. The reasons, obviously, have to be defendable.
This bill also contains safeguards to ensure that sensitive information remains protected. For example, access may be refused where a document falls within an exemption category such as information which would affect personal privacy or damage national security, defence or international relations. I think every sane and reasonable person would understand and appreciate that there is some information which rightly remains in confidence, and certainly matters of security and personal privacy should be treated as such. In fact, this bill contains a specific measure to exempt from FOI any document that has originated with, or has been received from, an intelligence agency. This bill represents just the beginning of the Rudd government’s efforts to transform government culture from one of secrecy to pro-disclosure, to openness and to transparency—all of those good things that make democracies healthy. I look forward to debating broader reforms to FOI in the near future. What we are talking about today heralds a new era for Australian government as the bill removes one unnecessary roadblock to accessing information. I thank the Special Minister of State and his predecessor for their work on this bill and I commend it to the House.
As a result of recent events in Perth, I am pleased to have the opportunity to speak on this Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 . As we have been told, the main purpose of this bill is to take out of the FOI Act the ability to issue conclusive certificates, or in other words to take away the ability to reject FOI requests based on particular reasons as determined by the minister concerned. It is important to note that some people may think that this bill represents a change to complete visibility of government. I make the point that it does nothing of the sort and that everyone should be clear that within the FOI Act and the Archives Act exemption categories still remain. Those categories include matters to do with personal privacy in documents that have the risk of damaging national security, defence or international relations. I make my view clear on this point, which is that I remain in favour of these exemption categories, but I also make the point that if someone is hoping for an era of public accountability in this area, they are both mistaken about this bill and they are being unrealistic about how a government can operate.
This bill takes away the option of a minister deciding that a document which does not meet an exemption category should nevertheless not be publicly available. Before moving on, I would just finish this point by making the observation that this government whilst in opposition cleverly coined the phrase or policy title ‘government information restoring trust and integrity’. Not only is it consistent with the fallacy that the previous government lied, but it also suggests to a lot of people that this bill will deliver far more than this current government ever intended to deliver. It is nevertheless a highly effective political trick to create a grand statement and therefore create a perception of extensive action, whereas the reality is in fact action of a very limited scope. It is pretty much the hallmark of a very successful political spin machine.
While some people will embrace the elimination of conclusive certificates, it is also worth noting that this bill will introduce procedural measures that will protect what is described as ‘particularly sensitive information’ in proceedings of the Administrative Appeals Tribunal. It is not that I am against this, but again it is notable that this bill actually imposes restrictions on the release of information as well. This is a bill that clearly demonstrates the difference between perception and reality. That being said, the process involves a claim for exemption by an agency, a minister or the National Archives, followed by the obtaining of evidence from the Inspector-General of Intelligence and Security regarding damage that could result from disclosure of documents or records—damage to national security, defence or international relations. If that evidence suggests exemption is warranted, presidential members of the Administrative Appeals Tribunal will hear an application for a review of a decision to refuse access to the document or record.
It is not my intention to speak on this bill for very long, but I did want to bring to the attention of the House that FOI laws can be abused and, sadly, are being abused. I refer to the situation in Western Australia, where it is very easy to make FOI applications and waste the time and resources of ministerial offices. In this case, I refer to the state member for Girrawheen, a lady whom, although she is on the opposite side of politics, I nevertheless had some regard for, until she embarked on this current stunt of putting in FOI requests for every document I have sent to a number of state ministers’ offices on behalf of constituents. I do not know why she has done this on several occasions, but my opinion of her has been shattered. I express my disappointment in her because she should be putting her resources towards helping the people who live in her electorate, not spending her entitlements wasting the time and resources of the state government. I would have thought that, if she had money left over from her electorate allowance, she would find some organisation in Girrawheen to spend it on, rather than playing some base political game.
Although she has far less territory to concentrate on than I do, perhaps I am being too harsh. Perhaps her intention is just to find out what is going on in her electorate. She could even read some of my speeches and she would see what is going on. She would see that this is the 17th speech in which I have made mention of Girrawheen. I mention Girrawheen a lot because I see the potential there and I want to encourage those who live there. Of course, the previous members for Cowan also made speeches about Girrawheen. Richard Evans, a former Liberal MP for Cowan, spoke of Girrawheen seven times in six years. Richard in fact spoke of Girrawheen the same number of times as the first member for Cowan, Labor’s Carolyn Jakobsen, who was the member for nine years. My immediate predecessor also did nine years and spoke of Girrawheen on three occasions. I go back to where I began on this point, which is that there are plenty of good things happening in Girrawheen, and when you look for the good and you look for the potential it is easy to speak of these positive factors. I continue to look for more opportunities to speak of the good work being done by the schools, churches and other organisations in Girrawheen.
To conclude my contribution, I would say again that abusing FOI for base political purposes is a waste of everyone’s time and resources, which would be better directed towards the people of Girrawheen, in this case. In terms of this debate on FOI changes in the bill, I would say that there is a big difference between perception and reality. The perception created by this government is that government actions and documents will be part of a new openness. Yet, despite that being unrealistic and unworkable in any case, what is being delivered does not match the rhetoric. Once again I question the authenticity of this government, a government that is about creating a facade, a false reality, for political advantage only.
I rise to speak on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 . If one goes to the explanatory memorandum, one finds out what this bill is about, and I propose to quote extensively in the short time remaining before we adjourn. The explanatory memorandum states:
The purpose of the Bill is to repeal the power to issue conclusive certificates in the Freedom of Information Act … and the Archives Act … for all exemption provisions where certificates may be issued.
The proposal to repeal the power to issue conclusive certificates forms part of the Government’s 2007 election commitments made in its policy statement, Government information: restoring trust and integrity.
The effect of the repeal of the certificate power will be that the AAT may undertake full merits review of all exemption claims.
Further down, it states:
Where a document or record properly falls within an exemption category in those Acts (for example, documents affecting personal privacy or documents whose release could damage national security, defence or international relations), access may be refused.
One cannot underestimate how big a step that is in terms of conclusive certificates, given their history. The explanatory memorandum goes on:
- The AAT will be required, in the first instance, to consider evidence on affidavit or otherwise when determining whether a document is exempt under a national security, defence or international relations exemption, or a confidential foreign government communication exemption …
- … the AAT will be directed to give particular weight to a submission by an agency, Minister or the National Archives that it should make such orders where the proceedings relate to a document or record that is claimed to be exempt under a national security, defence or international relations exemption, or confidential foreign government communication exemption …
- The Inspector-General of Intelligence and Security will be asked by the AAT to give evidence as to any damage that could result from disclosure of documents or records claimed to fall within a national security, defence, or international relations exemption, or a confidential foreign government communication exemption …
- Presidential members of the AAT will hear applications for review of a decision to refuse access to a document or record under a national security, defence, or international relations exemption or a confidential foreign government communication exemption …
Other measures in the Bill are as follows.
- In certain cases where notification may not be appropriate, an agency or Minister will be able to apply to the AAT for an order that it be excused from informing certain third parties of an application by an FOI applicant for AAT review …
- Where an appeal is instituted in the Federal Court against an AAT decision to give access to a document or record, the AAT decision will be automatically stayed until the Court decision on the appeal takes effect or such other time determined by the Court, whichever is the earlier.
- Access to a record, by staff of the National Archives, will be limited where those staff do not have appropriate security clearance …
- The exclusion that applies to publication in the Australian National Guide to Archival Material of particulars of records to which a conclusive certificate is in force will be repealed.
That is, in a nutshell, what we are dealing with in relation to this bill. I propose to talk a little bit later on, when the debate resumes, about other aspects of it. What we are doing is substantial. It is taking the situation forward in relation to freedom of information, and we are talking about a large number of FOI requests since 1996-97. So for those opposite to be criticising the government is a bit rich at this stage.