Tuesday, 15 September 2009
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008
Debate resumed from 14 September, on motion by Mr Byrne:
That this bill be now read a second time.
I spoke on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 last night in the limited time that was available to me. I quoted extensively from the explanatory memorandum, which details the purpose of the bill. I do not propose to go there again, but I think it would be worth while to point out a few things in the time that I have remaining. The number of FOI requests in Australia has risen from 30,788 in 1996-97. It rose throughout 2004-05 and 2005-06 and then dropped in 2006-07 to 38,787, declining again to 29,019 in 2007-08. I am advised that the vast majority, 85 per cent, of FOI requests are personal, with Centrelink, the Department of Immigration and Citizenship and the Department of Veterans’ Affairs receiving the highest number of requests. That comes from the Senate committee report.
I cite those figures to show that this legislation is important legislation and that what we do counts. What we have in this legislation is, overall, a proposal for greater transparency in governance, whilst seeking to strike a balance between the public’s right of access to government information and legitimate kinds of protection in the national interest, so the AAT will obviously play a greater role. The important thing is that people are entitled to challenge in relation to FOI matters and to have them properly and independently determined. When it comes to court matters on national security, ministers can make determinations and courts are not able to have all the material in front of them, even in cases where someone’s liberty is at stake. Great injustice can be done in those matters.
I remember the Ananda Marga case from when I was a solicitor in the legal aid system. There were arguments about what, if anything, was not disclosed in court proceedings, and that brought a cloud over those proceedings. In relation to FOI, if government can maintain legitimate claims of protection in the national interest without just making a declaration that cannot be examined, that is a good thing. It is important that in our system, where there is more and more power to the executive and more and more power in fewer people’s hands, the public and the press are able to test some of that decision making and what has gone on behind it. So I am a great advocate of opening up in terms of freedom of information. The government is not going to stop here. Matters have been brought forward by the former Special Minister of State, Senator John Faulkner, and I know he and Senator Ludwig want to progress the FOI situation, and that is something that should attract bipartisan support.
Having been here for 20 years, I have less confidence in getting behind certain decisions than I did 20 years ago, and I think FOI is an important tool. I do not believe that means getting access to cabinet discussions and cabinet decisions. They are in a separate category. But there are many decisions made that affect people’s lives—in immigration, for instance—that need to be fully accessed and fully scrutinised. They do not necessarily involve national security decisions, although we recently had an instance where Mamdouh Habib took government to court, and he lost. But I am now thinking in general terms, for example in the issuing of passports and whether people are allowed to get a passport to go overseas. Those decisions should, in my opinion, be able to be scrutinised to the fullest degree without an overarching national interest defence in terms of disclosure of that decision making. That is what, in the past, I think ministers have relied on. I am not saying that this legislation necessarily overcomes the deficiencies that I am talking about, but I do think that it is a step in the right direction and that is why I support this legislation.
I actually believe in a vigorous public service, but if we have better freedom of information legislation I do not believe in the yellow sticker going on a file so the yellow sticker can be pulled off the file if it is subject to an FOI request or if it is subject to scrutiny. Let us not kid ourselves; history shows that. What I expect and what I require of a forceful independent public service is for them to record their decisions in full so that, if there is an FOI request, the matter can be properly looked at. The Prime Minister gave a speech within the last little while where he talked about the need for an independent and fierce public service giving advice, and I applaud that. But I think that goes hand in hand with FOI. That was a speech to the heads of agencies and members of the SES in 2008 about reinvigorating the Westminster tradition of an independent public service with merit based selection processes and continuity of employment when governments change—which is something I believe in.
I think there is nothing worse than the American system, because there is not continuity of employment. It is like these contracts. People tend to make less courageous decisions because their contract is coming up or, if there is a change with continuity of government, it is a bit of a problem. I noticed that the Australian Public Service Commissioner, Lynelle Briggs, also gave a forceful outline of the objectives in an article in the journal of the Institute of Public Administration. That is where I see the FOI coming in, with an independent, courageous public service. Then, if there is a request, let it be looked at on its merits by the AAT—do not just invoke national interest provisions or other provisions that have been invoked in the past that have, quite frankly, been used to stultify some legitimate requests, because it only taints the situation.
There is a balance. I am not standing here tonight arguing for people to have an unfettered look at their files. I think there are appropriate circumstances, and we can have proper principles that apply before access is given. But in terms of conclusive certificates, that is really what this legislation is about—abolishing them, but, of course, it is not just an abolition. There are some principles that apply because there are some limitations on getting access.
There is not much more I want to say. I do applaud the government. I know these things can take time and people can say, ‘Why wasn’t it done yesterday?’ That is a problem with a change of government. This was part of our platform, we are implementing it; the former government in effect reneged when it came to the recommendations of the Australian Law Reform Commission and the Administrative Review Council of 1996. The former Attorney-General, Mr Ruddock, announced another review, but that sort of died with the election of 2007. As I said, the Administrative Appeals Tribunal is now going to be a main determinant in these matters, and I think that is a good thing, because people can have confidence in the system. The government will get rolled occasionally, but whacko—we will all wake up the next morning, I hope; the sun will rise, the sky will not fall in. On a number of occasions the government will have victories. It is not the end of the world. It really worries me when governments panic when they lose in the courts and tribunals and then they rush in—and this is true of both sides—with amending legislation, saying, ‘We’ve got to overcome these terrible decisions that didn’t go the way we thought they should go.’ I say to the House: let’s get the principles right and then let’s just stick to the principles. If you stick to the principles, everything else will flow. When you try to undermine the principles to achieve a particular result, that is when you get in trouble. That is when you get a loss of confidence in the system. That is why I am confident that, at the moment, in terms of this legislation before the House the balance is right and it is something that we can be confident in supporting. I commend the bill to the House.
I will be brief and just take the opportunity to put on the record my views with regard to open government and FOI legislation. Before I do, can I say to the previous speaker, the member for Banks, that that was one of the more considered contributions that I have heard in this place in the last 12 months. If there were to be a book written—and oh, what a bestseller it would be—on speeches in this parliament, I would certainly hope that speech would be in there. It was a considered contribution on where freedom of information legislation is today, and I think it shows 20 years of experience in this place and as much kicked the executive as supported it. For that, the member for Banks should be congratulated.
My view on FOI reform and open government is that it is important—that government is stronger if it adopts such principles. Whilst, as I mentioned previously, it is important to strike a balance, the devolving of information into the public arena is a sign of strength, not weakness. It is a sign of good government, not bad. While I certainly take this opportunity to endorse this Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 , I would also say that it is only a baby step in the reform process. This has been floating around since 1996 and the ALRC open government reports. We have seen private members bills put up by Democrats senators such as Andrew Murray. We have seen various prime ministers and ministers talk about the importance of open, transparent government and FOI reform. I hope this is not just simply the latest chapter of talking the talk—that what we are seeing is the walking of the walk. So, while I pat the government and the executive on the back for this bill, I would hope they recognise that this is a minor step towards the necessary major reform needed in FOI legislation.
Removing these conclusive certificates is a sensible and long-overdue step in providing better and stronger access to government. I do highlight the fact, though, that we have some great challenges ahead of us. These challenges were first identified in the 1996 Australian Law Reform Commission report, and we are still waiting for a government to bite the bullet and address them in full. It should be of concern to everyone that we are seeing a decrease in FOI applications. The 2007-08 FOI annual report showed requests as being down 71 per cent, down from 81 per cent the previous year, whilst the proportion of requests taking longer than three months has doubled. So there are flaws in the process. I know from various constituents on the mid-north coast of New South Wales that there is an enormous baulking from the general community in regard to the expense of FOI applications. I would hope that government addresses that and addresses it soon. If this is genuinely about the general public getting access to government, this expense needs to be addressed as it is one of the broader community’s huge concerns.
From my point of view, I see the current system as being a tool of opposition. They seem to be able to afford the FOI process and know it better than the general community. The question is therefore whether it is really an exercise of open and transparent government or whether it is just a tool with which the opposition can whack the government over the head—regardless of who is in opposition and who is in government. I hope that we can be serious and build a better system, one that is affordable to and manageable by the general population. At the moment we do not have an easy process that is able to be worked through by the person off the street.
So I certainly hope that what we are seeing here tonight is one step of many in regard to FOI reform. This has been around for a long time. When a side in this place takes over the government benches it is easy to drop the ball on some of these issues which can be difficult for executive, and government generally, to manage. I hope that the government can build a system that creates greater transparency and openness. I hope that the language we have heard from this government over the last 12 months and election commitments that were made leading into the 2007 election will stick. I hope that this government does not forget what it is like not to be in government. As good as this bill is, I hope that we see a commitment to FOI reform on a broader scale. So I certainly support this, but I take the opportunity to urge the government forward on more general FOI reform.
I am very pleased to rise in support of theFreedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 . This legislation is a precursor to much larger reforms to the freedom of information system in this country, reforms which are a commitment of this government and the details of which were announced by the Special Minister of State, then Senator Faulkner, in March this year. Of the reforms contained in this bill, the most important is the removal of the conclusive certificates procedure. As I have indicated, these were all commitments made at the last election. Many of them are based on a now quite dated joint report of the Australian Law Reform Commission and the Administrative Review Council in 1996, entitled Open government: a slow train coming, which was regrettably ignored by the former government. What this bill represents is the first step in the most substantial set of reforms to the freedom of information system since the legislation was introduced in 1982. I am looking forward to the legislation containing the much larger set, the further reforms, that have been foreshadowed by the Special Minister of State.
I would like briefly to detail those further reforms that are coming. They are the subject of an exposure draft of the legislation. Appropriately, the whole process of considering the changes to the freedom of information legislation is being conducted with complete openness, and the reforms include establishing two new statutory provisions, those of the Information Commissioner and the FOI Commissioner, and bringing them together with the Privacy Commissioner in a new office of the Information Commissioner. And in terms of freedom of information, the intention of that new office is to promote a culture of pro-disclosure right across the government.
The new Information Commissioner will have the power to conduct merits based reviews of freedom of information decisions by agencies and to use alternative dispute resolution tools. There will be a new information publication scheme requiring agencies to proactively disclose more information to the public, and the Information Commissioner will be given a key role in assisting agencies and monitoring their compliance with the scheme. There is to be a reduction to 20 years of the 30-year rule that is found in the Archives Act for access to all documents and a reduction of the present access period to cabinet notebooks from 50 years to 30 years. There will be important changes to the fee regime, including the abolition of all freedom of information application fees, the abolition of all charges for a person seeking access to their own information, a charge-free first hour in the decision-making period for all FOI requests and, for not-for-profit organisations and journalists, a charge-free first five hours in the decision-making period. There is a proposal to introduce a single, clear pro-disclosure public interest test, ensuring that factors which are presently in the legislation and have been part of considering the public interest under the legislation since it was introduced in 1982, like embarrassment to the government or causing confusion and unnecessary debate, can longer be relied on to withhold access to documents. A very important proposed change is an extension of the freedom of information regime to cover documents that are held by service providers contracted to government—it will not simply be primary government agencies. A strong new objects clause which emphasises that information held by government is a national resource will be introduced in the Freedom of Information Act. That will reinforce the aim of the Freedom of Information Act, which is to give the whole of the Australian community access to information that is held by the government.
The bill that is presently before the House, which is the first stage of very extensive reforms to freedom of information, does away with a feature that has been in the freedom of information regime since 1982. It is a much criticised procedure which enables—although it has not been used since we came to government—a minister and, in the case of certain documents, the Secretary of the Department of Prime Minister and Cabinet to issue a certificate which puts beyond reach documents that are sought for release under the Freedom of Information Act. That is why the word ‘conclusive’ is used to describe this form of certificate. There is no merits review available to the withholding that is effected by the conclusive certificate, as is the case for any claim for exemption under the act. If documents are claimed to be exempt, there is the right of a full merits review in the Commonwealth Administrative Appeals Tribunal in which the tribunal member, who may sometimes be a Federal Court judge or on other occasions a non-judicial member of the AAT, stands in the shoes of the administrative decision maker who has refused access to documents and decides afresh, based on evidence that is called before the tribunal, whether or not the exemption that has been claimed by the government agency as a basis for withholding the documents is in fact made out. The conclusive certificate procedure puts documents entirely beyond the reach of that merits review and limits the scope for appeal against, or review of, that conclusive certificate to a review that examines only whether or not there were reasonable grounds for the making of the certificate in the first place.
The 1996 report Open government: a slow train coming by the Australian Law Reform Commission and the Administrative Review Council recommended almost complete abolition of the conclusive certificate power as long ago as 1996, but rather than act on that recommendation or on any of the other recommendations for reform the former government did nothing and indeed continued to use the conclusive certificate procedure to prevent documents from being released when they were asked for under the Freedom of Information Act. The case that probably brought this most to public notice was a decision of the High Court, McKinnon v Secretary, Department of the Treasury. Michael McKinnon is a very senior News Ltd journalist who made a request for documents. I am going to mention what the documents were, because that will set the background for an examination of how the conclusive certificate issued by the then Treasurer, the member for Higgins, came to be used on that occasion. Mr McKinnon made a request for material relating to bracket creep in the federal income tax system and made a further request for material relating to the first home owners scheme. You might think that, being subjects of importance, documents held by the federal government surrounding both those issues would be quintessentially documents that should be released in order to enable informed and appropriate debate. The grounds on which the former Treasurer issued his conclusive certificate are set out in the judgments of the High Court in McKinnon v Secretary, Department of the Treasury, and I will come to those in a moment. But the decision in the High Court, which followed appeals in the Administrative Appeals Tribunal and, subsequently, the full Federal Court of Australia, was concerned with looking at what process was to be followed by the Administrative Appeals Tribunal when it was asked to review the issue of a conclusive certificate by a government minister.
The High Court makes clear in the majority judgments in McKinnon v Secretary, Department of the Treasury—and there was a strong dissent written by Chief Justice Gleeson and Justice Kirby in a joint judgment about this—that, provided there was at least one ground upon which it was possible for the certificate to be issued, then that was sufficient and would put the issue of a certificate beyond review. Chief Justice Gleeson and Justice Kirby said that one ground would not necessarily be sufficient and suggested in their dissenting judgment that a more considered process was necessary. But, as it stands, the law of Australia, as determined by the High Court of Australia, is that conclusive certificates are almost unable to be reviewed because it is not very likely that a conclusive certificate issued by a minister in this country is not going to be able to be justified on at least one ground—thus, in effect, putting it beyond review.
The Freedom of Information Act 1982 says on its face that it is a scheme which is intended to create a right to information for the citizens of this country. The right for a minister to simply step in and put a document beyond reach that might otherwise be available for release is really a feature that should have no part to play in a scheme intended to create a general right to information.
When one looks at the kinds of reasons given by the former Treasurer for determining that a document should not be available, I suggest that they demonstrate the former government had very little trust in the ability of the Australian people to sort the wheat from the chaff and to sort out what is going on in any particular document. The thrust of the former Treasurer’s reasons was that the release of the documents might cause confusion and that the documents would probably not be readily understood. I will go to some of those reasons provided because they demonstrate an attitude to freedom of information that is the opposite of the attitude that one should expect to see. For example, one of the grounds is:
Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of those processes and the public record.
There are a few others in a similar vein, but that argument has been described by an English judge as ‘the tired, old frankness and candour argument’. It is an argument that could be raised every time a document is sought for release and would, if it were to be applied generally, mean that no documents would ever be released because, it was being suggested, it would not be in the public interest because it might in future inhibit public servants from writing anything down. Stripped away, that is what the former Treasurer was saying there.
Other reasons advanced by the former Treasurer show very little trust in the ability of the Australian people to sort out what is going on. Another of the grounds is:
The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts.
Another one in a similar vein states:
The release of documents that are intended for a specific audience familiar with the technical terms and jargon used, has the potential for public misunderstanding in that the contents of the documents could be misinterpreted.
All of that amounts to simply saying: ‘We don’t trust the Australian people to be able to work out what a government document was intended for. We think that there is going to be confusion in debate if we release them.’
All of the reasons advanced in the judgment of the High Court in the McKinnon case as to why the former Treasurer issued the conclusive certificate are reasons that could be used against any release of information at any time. They demonstrate that on the part of the former government there was no real commitment to openness let alone a commitment to debate. We on this side of the House share the attitude expressed by Abraham Lincoln:
Let the people know the facts, and the country will be safe.
We have a commitment to open government. We have a commitment to transparency in government. It is being demonstrated by this first stage of very substantial reforms to the freedom of information system.
Another step taken by the Special Minister of State was to write to all agency heads indicating the appropriate approach to be taken in relation to freedom of information matters. It was a very direct encouragement to all agency heads to take what I think is right to describe as a pro-disclosure approach when considering the freedom of information requests that they receive. In other words, even in advance of the introduction of the reforms to the freedom of information system that have been foreshadowed, the Special Minister of State was making it very clear that this government is expecting the culture of freedom of information to begin to change. I will quote from the letter that the then Special Minister of State, Senator Faulkner, sent in April of this year to all agency heads. Having described the reforms that are coming and that are contained in the exposure draft, Senator Faulkner said:
These reforms, although important, will not deliver the openness and transparency so essential to accountability and to a robust democracy, unless FOI decision-makers embrace the disposition towards disclosure which informs the FOI Act reforms.
In anticipation of these reforms, the Government is asking secretaries and agency heads to take a lead role in facilitating the Government’s policy objective of enhancing a culture of disclosure across agencies. This includes making it clear to FOI decision makers in your department or agency that the starting point for considering FOI requests should be a presumption in favour of giving access to documents.
Senator Faulkner went on to say that he is not suggesting that every single document that is requested has to be released but indicating in the clearest possible terms that what the government is looking for is a pro-disclosure approach.
I should mention that the bill, which of course comes to us having passed the Senate, was the subject of a lengthy report by the Senate Standing Committee on Finance and Public Administration. The committee recommended that the legislation be passed. Indeed, this bill met with a great deal of approving comment. Submissions made to the committee, while raising some issues about other aspects of the legislation, congratulated the government for moving to abolish conclusive certificates—indeed, moving to carry out the commitment that the government took to the last election.
I want to mention the remaining matter of the somewhat extraordinary claims we have heard from members of the opposition both in the other place and here. Perhaps it is best to mention Senator Brandis’s claim that:
The coalition’s commitment to open, responsible government is well known.
I would say that one only has to look at the conduct of the former government in the continuing use of conclusive certificates and in not acting on very clear recommendations and calls for reform of freedom of information over its 11½ years in office to see that, far from having a commitment to open and responsible government, the coalition has demonstrated the reverse. McKinnon is a case directly in point, where the government thought it appropriate to take all the way to the High Court the defence of its refusal to release documents concerned with bracket creep and documents concerned with the first home owners scheme. (Time expired)
in reply—I thank those on both sides of the House who have contributed to the debate, particularly the member for Isaacs. The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 delivers on the government’s election commitment to remove the powers to issue conclusive certificates under the Freedom of Information Act 1982—the FOI Act—and the Archives Act 1983.
Currently, if a conclusive certificate is issued the Administrative Appeals Tribunal cannot undertake a full reconsideration of a decision to claim an exemption. The passage of this bill will ensure that all exemption decisions under the FOI Act and the Archives Act will be subject to full external merits review. The removal of the certificates power will therefore enhance public confidence in decisions about access to government information.
The removal of 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, the document will not need to be disclosed. A number of measures in the bill will introduce procedural requirements to be observed by the AAT in the conduct of the review proceedings for particularly sensitive documents—namely, documents whose release could damage national security, defence or international relations or would disclose confidential foreign government information or cabinet information. These measures do not affect substantive rights of access to documents or to records; rather, they are safeguards for the protection of particularly sensitive information in the conduct of AAT proceedings.
Under existing provisions in the FOI Act, intelligence agencies and the Inspector-General of Intelligence and Security are wholly excluded from the operation of the act, and documents in the hands of the agencies are excluded if they originated with or were received from an intelligence agency or the Inspector-General of Intelligence and Security. The bill will in the same way exempt these classes of documents from the operation of the FOI Act when held by ministers. It would be anomalous to treat intelligence agency documents differently when they were held by a minister.
Since this bill was introduced into the parliament, the government has released, as the member for Isaacs stated, draft legislation for public comment to fulfil the rest of its election commitments on FOI reform. The draft legislation together with this bill comprises the most significant overhaul of the FOI Act since its commencement in 1982. The government intends to introduce this legislation into the parliament shortly.
While the repeal of the power to issue conclusive certificates is just one initiative amongst many in the government’s broader FOI reform package, it is an important step in making government more open, more accountable and more transparent.
Question agreed to.
Bill read a second time.