Tuesday, 11 May 2010
Information Commissioner Bill 2009; Freedom of Information Amendment (Reform) Bill 2009
Debate resumed from 26 November, on motion by Mr Byrne:
That this bill be now read a second time.
I rise to speak on the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009. Freedom of information, 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, it was the Fraser government that first introduced freedom of information into Australia in 1982 through the Freedom of Information Act of the same year. This formed part of a broader package of administrative law reforms promulgated during the 1970s and 1980s, and this made Australia the first country with a Westminster system of government to legislate for freedom of information. In subsequent years, following the Commonwealth’s taking the lead, similar legislation was passed in all Australian states and territories.
As noted in the Bills Digest for the FOI Amendment (Reform) Bill 2009, these FOI acts have certain major features in common. First, government is obliged to publish information about its activities in general and about whether it holds certain kinds of documents. Second, every person has a legal right to obtain access to information in documentary form, subject to the operation of specific exemptions and exclusions, which is in the possession of ministers or government agencies. Exemptions can apply to specified agencies—for example, our domestic or international intelligence agencies or the police forces of the state jurisdictions—or to categories of documents, such as documents that deal with international relations or international security. A third feature of FOI acts is the personal privacy dimension, which enables a person who has gained access to a document held by government that relates to his or her personal affairs to request that the document be amended in some respect, to appeal against a refusal to amend the document and—even if the appeal is unsuccessful—to request that an annotation be attached to accompany the record when it is shown to any other person. The last feature common to all the FOI regimes is a right of review in relation to most decisions made under the acts—that is, internal review within the agency and further review by a body external to the decision maker.
The Rudd government’s position on freedom of information, like so much of what we see from this government, mirrors its failings in other policy areas. Prior to the 2007 federal election the Rudd government was very heavy on rhetoric, but after it was elected FOI was added to its list of comprehensive policy failures and broken promises. When in opposition, Rudd Labor stated:
A Rudd Labor Government will restore trust and integrity in the use of Commonwealth Government information, promoting a pro-disclosure culture and protecting the public interest through genuine reform.
The Labor Party when in opposition described its approach to making information more accessible to the general public with the colourful phrase Operation Sunlight. However, although the government is very good at sloganeering, it is very bad at follow-through. The Labor Party’s election policy document was entitled Government information: restoring trust and integrity in government information. This document foreshadowed significant changes to freedom of information legislation. It stated that a Labor government would abolish conclusive certificates and implement the recommendations of the Open government: a review of the federal Freedom of Information Act 1982 report. It is interesting to note that the government promised a pro-disclosure policy and cultural change when it came to freedom of information requests, but its own figures, quietly released three days before Christmas last year, show that its rhetoric on FOI has failed to match that reality. Doesn’t the fact that the government released the report on its failure to adhere to its Operation Sunlight promises three days before Christmas say everything about how this government operates?
The 2008-09 Freedom of information annual report shows that the Labor government have refused more FOI requests than did the previous coalition government. The government’s own figures show there is less freedom of information under the Rudd government than there was under the Howard government. The Rudd government’s heroic pro-disclosure rhetoric from opposition stands in stark contrast to the cold, hard statistical reality that they have implemented since they have been in government. The annual report is dated 31 October 2009, but the Rudd government waited until 22 December, a time when the political cycle is at a pretty low ebb, to quietly release it because it contained a litany of their failures in this area. The timing of the report’s release alone demonstrates the reality of the Rudd government’s attitude to disclosure. My colleague, the shadow Attorney-General, Senator George Brandis, was quoted in the Australian on 30 December 2009:
A reduction in the number of successful FOI applications of 10 per cent, and an increase in the number of outright refusals of almost 1 1/2 times, is certainly evidence of a change of culture within the government towards the release of information. Unfortunately, it demonstrates that the trend is in the opposite direction from that promised by Faulkner.
Far from bringing about the dawn of a new age of access to government information, the Rudd government has done the very opposite. As Senator Brandis also noted:
The exemptions in the FOI Act were invoked to block disclosure in 6.1 per cent of cases. By comparison, in the last full year of the Howard government, only 4.4 per cent of FOI applications were refused outright. The number of applications granted in part only was 22.9 per cent. The comparable figure in the last year of the Howard government was 15 per cent. In all, only 71 per cent of applications were granted in full; the comparable figure in the last year of the Howard government was 80.6 per cent.
As noted by the coalition senators in the Senate Standing Committee on Finance and Public Administration’s report, the cost of facilitating FOI requests has also increased substantially under the Rudd Labor government. From the last full financial year of the Howard government until the first full financial year of the Rudd government, the cost of FOI increased from just under $25 million to over $30 million—an increase of over 21 per cent. Given the increasing cost of facilitating FOI requests and the decline in the number of FOI access requests, in the two years between 2006-07 and 2008-09 there has been an extraordinary increase in the average cost per FOI request. In 2006-07 the average cost per FOI request was $642, whereas in 2008-09 the cost per request was $1,101—an increase of 71 per cent over two years. These facts contradict Labor’s purported commitment to ‘promoting a pro-disclosure culture and protecting the public interest’. The government’s commitment to a pro-disclosure culture was put to the test last year. The behaviour of public servants in the Department of Climate Change and Energy Efficiency in their response to an FOI request from Dr Richard Denniss from the Australia Institute was reported in the Australian on 30 January 2010. The article read:
Even though the department rang Denniss to confirm that he wanted advice to the minister, and the department’s lawyers said this was covered by the request, it was excluded on the instruction of departmental head … and his deputy …
Not easily deterred, Denniss fired in another request asking for documents prepared to help inform Wong—
that is, Senator Wong—
and her advisers of the details, merits, limitations and criticisms of the ETS. The response: he may be able to get what he wants if he hands over $256,586.98—
over a quarter of a million dollars—
although, catch-22, if he proceeds with his request, the department may decide it involves an unreasonable diversion of resources.
It is not clear what else the department of climate change actually have to do, but clearly they were not keen under this minister to facilitate Operation Sunlight, so proudly announced by Labor in opposition and so woefully adhered to in government. This example about a prominent public policy issue further illustrates that the Labor government is not honouring its election commitment to create a pro-disclosure culture and that Labor’s rhetoric on FOI does not match the reality of continued denial of access to information.
I move to some of the specifics. The Freedom of Information Amendment (Reform) Bill 2009 contains key amendments: (1) introducing an information publication scheme which would require agencies to proactively disclose more information to the public (2) changing the time periods for access under the Archives Act, from 30 years to 20 years for all documents and from 50 years to 30 years for cabinet notebooks (3) abolishing FOI application fees, abolishing all charges for a person seeking access to their own information, making the first hour of decision-making time charge free for all FOI requests and allowing a five-hour charge free period for journalists and not-for-profit organisations (4) a single public interest test for disclosure (5) extending the FOI Act to cover documents held by service providers to the government and (6) introducing an objects clause to emphasise that the aim of the act is to give the Australian community access to information held by the government.
The bill that we are debating concurrently, the Information Commissioner Bill 2009, establishes the Office of the Information Commissioner, which was part of the reform of the FOI regime announced in March 2009. The functions of this office will be threefold: the FOI functions, which are about giving the Australian community access to information held by the government in accordance with the FOI Act; the privacy functions, which are about protecting the privacy of individuals in accordance with the Privacy Act and other acts; and the Information Commissioner functions, which are strategic functions concerning advice to government on information management.
As noted in the bill’s explanatory memorandum, the Information Commissioner, which is a new position, will be head of the office. The Information Commissioner will be able to perform all of the functions of that office. To ensure a workable governance arrangement, the Information Commissioner will be head of the office both strategically and administratively. Provision is made in the bill to ensure that no duplication arises in carrying out functions between the three commissioners and to ensure that no disagreement arises in the discharge of those functions.
The FOl Commissioner, which is also a new position, will mainly perform the FOI functions. For flexibility, the FOI Commissioner will also be able to perform the privacy functions. The Privacy Commissioner is an existing position established under the Privacy Act; however, the Privacy Commissioner will be appointed under this bill. The Privacy Commissioner will mainly perform the privacy functions. For flexibility, the Privacy Commissioner will also be able to perform the FOI functions. It is proposed in the bill that the existing Office of the Privacy Commissioner be amalgamated into the Office of the Information Commissioner.
The FOl functions of the Information Commissioner include: promoting an understanding of the FOI Act; assisting agencies to publish information in accordance with the publication scheme; providing guidelines, advice and training to agencies; and conducting investigations and reviews of decisions. In effect, it will perform an ombudsman’s role in relation to information matters.
I understand that discussions are underway between the opposition and the government regarding the onus of proof provision. Whilst the coalition supports these bills in principle, further amendments will be made in the Senate. I trust that the government and the opposition, with a bit of goodwill on both sides, will be able to find common ground on these two bills. As mentioned in the Bills Digest regarding the FOI Amendment (Reform) Bill 2009, there is an argument that in a number of areas the reforms do not go far enough. A common theme in submissions to the Senate inquiry was that, while the bill repeals a small number of exemptions, it retains an almost entirely untouched list of excluded agencies and documents held by certain agencies listed in schedule 2 of the FOI Act.
The two bills are not the end of the story. In relation to two key aspects of the FOI Act—namely, access to and amendment of one’s own personal information and the imposition of processing charges for FOI requests—the government has promised further reform. However, by the government’s own reckoning, access to government information is much less free today than it was prior to the change of government. The coalition have consistently stated support for any reforms to the freedom of information regime that would result in improved public access to information. So, whilst we commend this bill and support it in principle, it is on the basis that in the past two years freedom of information has gone substantially backwards under Kevin Rudd and his Labor government.
I am proud to support the two bills before the House: the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009. These bills represent the most substantial reforms to the Freedom of Information Act 1982 since it was enacted by this parliament. It is somewhat regrettable, perhaps even laughable, to hear from an opposition spokesman claiming that the coalition has a commitment to open and responsible government and indeed, by the selection of a handful of statistics or a handful of anecdotes, seeking to ignore the major nature of the reforms that are contained in this legislation.
There has already been very substantial reform contained in legislation considered by this House, namely the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008, which was debated last year. That marked the first stage of amendments to the freedom of information regime. Really, the removal of conclusive certificates and what the conclusive certificates represented tells all the story that one needs to know about the true or actual commitment of the coalition to open government. Conclusive certificates, of course, were what lay at the heart of the former government’s resistance to the release of information, notably in a case where the former government went all the way to the High Court. It was a case brought by Michael McKinnon, a very senior News Ltd journalist, who was requesting documents that were concerned with bracket creep and material relating to the first home owners scheme—precisely the kind of material one might expect to see being requested under freedom of information legislation. The former government’s attitude to FOI was revealed by the way in which that request was refused and then fought at every single level all the way to the High Court of Australia.
This government’s first legislative act in relation to the freedom of information regime was to abolish those conclusive certificates provisions, and as was foreshadowed by the former Special Minister of State, Senator Faulkner, we now have before the House the substantial set of reforms contained in these two bills. They are a set of reforms that have been long awaited because they are based not merely on more recent reviews and reviews by the Attorney-General’s Department and not merely on what has been very longstanding Australian Labor Party policy. They are based on a report that was finalised by a joint report by the Administrative Review Council and the Australian Law Reform Commission in 1996. It contained a very large number of recommendations. It was itself, at that point, the most substantial review that had been conducted of the Commonwealth freedom of information legislation. As was commented on at the very start of that joint report of the ALRC and the Administrative Review Council, at that point, the point of their report—some 13 years since the act had come into operation—it was long enough for the shortcomings of the legislation to have been uncovered and for some very coherent work to be done on what changes were appropriate to make the freedom of information regime work better.
But that extensive report, the open government report of those two bodies, was ignored by the former government for the whole of its term of office. The very substantial reforms, which were carefully thought through and were the subject of very many submissions that were considered by those two bodies in that substantial report, were all ignored by the former government, and that is where we see the true commitment of the coalition parties to open government and to freedom of information—which is, of course, no commitment at all. We had to wait for the Rudd Labor government to come to office, bringing with it very detailed commitments for amendments to the freedom of information regime, for there to be an enactment and legislation presented in this House, first abolishing conclusive certificates and followed up by this set of comprehensive reforms to the whole regime, which will change the system. That is why the complaints voiced by the member for Stirling should be seen as the laughable complaints that they are. Rather than talk about the substantial reforms contained in this legislation, we had reference only to a handful of statistics—pretty much the same approach that was taken by the coalition senators participating in the Senate Finance and Public Administration Legislation Committee which looked at this legislation. The coalition senators participating in the report—Senators Brandis, Ryan and Kroger—commenced their dissenting report with the risible claim:
The Coalition is committed to responsible and open government.
As I have said, the record of the former government speaks for itself. It had before it this extraordinarily detailed report by the two bodies—the ALRC and the Administrative Review Council—and chose to ignore all of those recommendations. There was no action to reform the freedom of information system and from that report—indicating that at that point some 13 years had passed since the act had been passed—we have had to wait another 14 or 15 years to get to this legislation before the House of Representatives in order to have substantial reform.
It is the case that freedom of information legislation deals only with one form of release of government information. Government information is released by this parliament collectively, it is released and made available to the public by members of this parliament individually, it is made available by ministers and it is made available by government departments. It should not be thought that the Freedom of Information Act is in any sense a code which fully describes the means by which government information is to be made available. What it does is to provide an additional means by which government information can be made available, and it does so because it is recognised, or at least recognised in democracies throughout the world, that the provision of information empowers citizens; that the provision of government information in every sense creates better government and in every sense makes it possible for citizens to participate more fully in the processes of government and for those engaged in the process of government, being members of this parliament, government ministers and officers of departments, to govern better.
I wish to comment briefly on the creation of the new offices, which is the purpose of the Information Commissioner Bill. The bill adds to the existing office of Privacy Commissioner the office of FOI Commissioner and the office of Information Commissioner, and it uses those newly created offices to set up a structure by which, for the first time in our freedom of information system, there will be a champion of FOI. There will also be a simpler means for review of freedom of information decisions, and there will also be, through the Information Commissioner, the possibility of review of all of the processes of FOI within the government, which will go a great distance towards what should be the true aim of a freedom of information regime, which is to create a culture in which governments and government departments and agencies are encouraged to release information. It should not be thought that freedom of information can ever be left completely to some code which lists in a prescriptive way the means and opportunities for obtaining information; rather, there should be a vibrant culture of release of information, where at all possible—a proactive culture of making information available—and it should not be left for citizens to make requests in order for information to be made available.
The Freedom of Information Amendment (Reform) Bill starts with what I would suggest is a very, very substantial reform, and that is to replace the objects of the Freedom of Information Act with a new provision. It is a very important provision because it makes clear that access to information is a right and makes clear that there are requirements on agencies to publish information. It makes clear that this parliament intends to promote representative democracy by increasing public participation in government processes by increasing scrutiny, discussion, comment and review of the government’s activities and, as well, by increasing recognition that information held by the government is to be managed for public purposes and is a national resource. It is important that that kind of object be stated right at the outset of legislation like this so as to put beyond doubt any suggestion that the Freedom of Information Act is intended to be in some sense restrictive or in any way intended to fully describe the opportunities that are provided for access to government information. Rather, it needs to be understood that FOI regimes, and in particular the freedom of information regime of this Commonwealth, is a tool—it is something that is there to assist in better government and assist citizens to participate in the government of the Commonwealth.
The specific other provisions I would comment on, apart from the objects clause, include the tidying up, if I can call it that, of the exemption provisions, which is important because anything that can assist in making this legislation easier to read and simpler to use is to be commended. There is a set of provisions which will now require the publication of a range of information, as well as provisions which specify how and when information is to be published by agencies of the Commonwealth and encourage the provision of such access.
There are further amendments in relation to the form of public interest test which is weighted towards disclosure. This is something that will, again, assist in ensuring that proper consideration is given to requests for information. The Victorian freedom of information legislation has for many years contained reference to public interest, which operates in that legislation as a form of override or reason why, despite an exemption having been made out, documents ought to be released because the public interest requires such access, and the Commonwealth legislation will through these amendments now include clear public interest provisions which include a set of factors that will favour access, including promoting the objects of the act, to which I have already referred, informing debate about matters of public importance, promoting effective oversight of public expenditure or allowing a person to access his or her own personal information.
What is also important is that this public interest test makes clear that a range of matters are not to be taken into account in a public interest assessment. They include whether or not access to a document would result in embarrassment to the Commonwealth government or cause a loss of confidence in the government. I repeat: that is a factor not to be taken into account in a public interest assessment. Further, and this is a matter that has been sometimes raised by government agencies in resisting disclosure, it puts to rest the suggestion that access to the document resulting in any person misinterpreting or misunderstanding the document could ever be a relevant factor. That too will not be something that is taken into account in public interest considerations. There are two more factors which are not to be taken into account in the public interest evaluation. The first is that the author of the document is or was of high seniority in the agency to which the request for access is made. That is ruled out as something that might be taken into account in a public interest matter. Secondly, ruled out from consideration in the public interest evaluation is the proposition that access to the document could result in confusion or unnecessary debate.
This is a piece of legislation which puts trust in the citizens of Australia. It rests on the proposition that political debate in this country and the participation of citizens in the government of this country will be assisted by the provision of information—and the more the better. That is why we see this sort of provision, which says no-one in future will be allowed to go and suggest in the review processes to the Administrative Appeals Tribunal or before the Information Commissioner or to the Federal Court of Australia that simply because the release of the document might result in confusion or unnecessary debate that would be a reason in the public interest for it not to be released—and so it should be because that judgment, as to whether or not the release of a document might result in confusion or unnecessary debate, is an extraordinarily subjective judgment. I, as someone who has participated in more freedom of information cases than I care to remember, can say that I am very pleased to see that argument, as a reason for not allowing the release of a document, put to rest.
It is, of course, the case that the public interest underlies many of the exemptions. We have a clear public interest in refusing to release national security documents. We have a clear public interest in refusing to release documents that are sourced from the intelligence community. The way in which the new public interest provisions work recognises that there are competing public interests and that there are public interests which favour nondisclosure as well as public interests which favour disclosure. This proposed act contains a rebalancing of the provisions which were there before in a clearer way and will lead—and this is what the coalition has failed to recognise—to a system that promotes disclosure and a system in which information will be more accessible.
I end by again referring to the claims that have been repeatedly made—the ones that were recently made in the Senate committee process by Senator Brandis and other coalition senators and were made throughout last year by Senator Brandis—about the coalition’s supposed commitment to open and responsible government. They are laughable claims. Their failure to implement the recommendations of the Australian Law Reform Commission and the Administrative Review Council’s recommendations from 1996 speak for themselves. That failure shows the true commitment. (Time expired)
I thank you, Madam Deputy Speaker Bird, for the call—a busy day in the parliament and we are looking forward to another session of the parliament later this evening. I recognise that the members of the Left Right Think-Tank, Australia’s first think tank for young Australians, are here in parliament today for the budget. They will, of course, be interested in the bill on freedom of information that we are discussing. That certainly interests young people as well as interesting the rest of the Australian population. To the member for Isaacs: I could not agree more with your contribution. I think we will probably hear more of the same from the member for Moreton in due course—a very fine Queenslander, I might add.
People do not understand that there can be good friendships with those on the other side of the parliament. I remain a little bit cynical, though, I am afraid, about this particular bill and I am going to go through it and outline why I remain cynical. I will challenge the member for Isaacs over his comments about Senator Brandis and reflect on what is currently the situation within the Australian government.
I think we all agree with the purpose of the Freedom of Information Amendment (Reform) Bill 2009. It is to amend the FOI Act 1982 to ‘usher in a new regime for access to government information’. How could you disagree with that? It is an absolutely laudable object. The second object of the bill is to ‘promote a pro-disclosure attitude’. I hope that the bureaucracy of the government departments out there hears this loud and strong and clear, because that is what we need. This bill is intended to deliver more effective and efficient access to government information and promote a culture of disclosure across government. But let us have a look at what is happening at the moment, and I will give you a case study: the Department of Defence. Never have I seen a more paranoid department. It does not matter what you ask of the department as the answer is, ‘No, we can’t tell you.’ Their attitude goes completely against the grain of the philosophy of this bill and it has got to change.
I will give the parliament a specific example. Defence is normally considered a bipartisan operation and all of us are very mindful of the work that the members of the ADF do for our country. We are all supportive of the Defence Force. I am particularly supportive because, within Australia, I have the largest defence concentration in my electorate in Townsville with the Army at Lavarack Barracks and the Air Force at RAAF Townsville. It is a very, very significant base and Australia’s most modern base. I take a keen interest in defence. I look after the people in the Defence Force.
When issues arise in Afghanistan and the media finds something and blows it up out of all proportion and you know that what they are saying is wrong, you want to stand up for the men and women of the ADF in your electorate and you want to give the media information that is correct. So what do you do? You ring the media ops section of Defence at Russell in Canberra. There are probably 100 employees in media ops. It is called Defence public affairs as well. You say, ‘This is what the papers are saying. I know this not to be true. Give me a couple of lines that I can use in the media to defend the Australian Defence Force in Townsville.’ Their answer is, ‘Look, I’m sorry, we can’t talk to you.’ They know that I am not going to misuse any information and that I need information for the right reasons. I explain that carefully and the answer is no, we cannot tell you. Then they say, ‘You have to ask the minister.’ I have been down that process a number of times. What happens when you ask the minister, effectively, is that you put a request in writing to the minister’s office for information. It will take days if not weeks to get a response. And by the time it comes through the issue has long gone.
In the last instance I said to Defence public affairs, ‘You’re there to look after the public, to provide information, that is your role. Here I am. I’m a member of parliament but I’m also a member of the public and I want to stand up for the Defence Force. Give me information and give me information that won’t embarrass anybody.’ But the answer keeps coming back—no. In this particular instance when I was defending the men and women from Townsville who had been to Afghanistan and were accused of drug related issues in Afghanistan and I knew it to be wrong I said to Defence, ‘In half an hour I’ve got to front the television cameras and I’ve got to give an explanation. Give me a couple of lines. I want to support the Defence Force.’ The answer was no. I said, ‘Are you saying that you’re going to just turn me loose and I could be wrong in what I say?’ They said, ‘Yep, we can’t do anything about it.’
It is that kind of paranoia that Defence has. People want to do good things for the Defence Force and need correct information that Defence has and could give them but does not. It is that kind of culture that departments have to take notice of. It cannot go on being a secret society, particularly when we are all trying to do the right thing. It is wrong that that should happen. How can you have a Defence public affairs unit of 100 people who will not give you information? That kind of culture has to be addressed. I call on the Minister for Defence to have a look at that in relation to the object and philosophy of the bills that we are talking about tonight.
In the information commissioner bill there are three information commissioner appointments. There is the Information Commissioner, the FOI Commissioner and the Privacy Commissioner. I note that the Information Commissioner has the ultimate decision power should there be a disagreement. That is fine. The bill also gives the Information Commissioner a discrete function of advising the government on information management policy.
The Information Commissioner is to be assisted by an information advisory committee. That committee will be chaired by the Information Commissioner and will comprise senior executives from key agencies and other persons outside the government who have suitable experience or qualifications. That is a good thing. The advisory committee and hence the Information Commissioner’s advice to government will not be truly independent if the appointments of the advisory committee are not picked with balance in mind. That is my view. That is not in the bill, but I think it is self-explanatory. I hope that, in making appointments, the government is mindful of the need for balance.
In the freedom of information bill the member for Isaacs talked about some of the tests that will be applied to more exemption categories than is currently the case. That is a good thing. He talked about the public interest test to be added to the economy, research and personal information exceptions. I think that on both sides of the parliament we are pleased that you will no longer be able to use arguments to prevent the release of information like, for example, disclosure of documents could cause a loss of confidence in the government or cause embarrassment to the government. Well, three cheers. That is a very good step forward.
I am pleased to see the bill also gives weighting to the FOI applicant. Should there be a disagreement between the three commissioners then the FOI applicant wins. That is interesting, though, as it contradicts the philosophy that the Information Commissioner has the ultimate say over the FOI and privacy commissioners.
I would like to turn to the history of FOI in Queensland, and the member for Moreton will be interested in this as well. This is where I get a bit cynical. Back in the Fitzgerald days, around 1989, Queensland suffered a lot of corruption in the police force, and there were people like Don ‘Shady’ Lane and Brian Austin who got themselves into a bit of strife. There was a fellow called Jack Herbert—I am the member for Herbert, but there is no relation—and there were some goings-on that were looked at. The inquiry handed its report to the government in Queensland in 1989. The report said:
A Government can deliberately obscure the processes of public administration and hide or disguise its motives. If not discovered there are no constraints on the exercise of political power. The rejection of constraints is likely to add to power of the Government and its leader, and perhaps lead to an increased tendency to misuse of power.
I say hooray to that—it is dead right. In this context, from what the report said, it is easy to see the fundamental importance of proper record keeping by public servants so that the activities and decisions of government can be scrutinised by the public. Importantly, Fitzgerald saw that effective FOI laws were one of the accountability mechanisms necessary for a robust democracy, and we are recognising that in this bill in the parliament tonight.
The recent history in Queensland is fascinating because in September 2007, within days of Anna Bligh becoming the Premier, cabinet approved the terms of reference for a broad-ranging review of FOI, and the independent panel that resulted from that delivered its report in Queensland in June 2008. In answer to the question—this is a general finding—of whether FOI in Queensland had brought about a ‘major philosophical and cultural shift in the institutions of government and the democratisation of information in the last 15 years’, the review said no. I think we all suspected that.
Since that review, Queensland has gone down the track of what we are doing here in the Australian parliament tonight. The Queensland government made a commitment to provide access to information held by the government unless, on balance, it is contrary to the public interest to provide that information. The review on Queensland’s Freedom of Information Act found that a new approach was needed from the government, putting forward 141 recommendations for reform. The Queensland government then proceeded to enact those changes.
But what is the result of that? This is where, I guess, we all get cynical. A media release from the Leader of the Opposition in Queensland dated 25 November 2009 is headed ‘Accountability a joke under Bligh’—and this is what I have feared. It says:
Premier Bligh is living in a fool’s paradise if she thinks her government is setting the national agenda for accountability.
The Leader of the Opposition said:
… Premier Bligh’s claim in state parliament this morning that Queensland’s Right to Information legislation made her government more accountable was laughable. Anyone who has attempted to extract information from this government using RTI processes is confronted with bureaucratic obfuscation …
“Under Bligh’s self-flaunted legislation, departments are required to respond 25 days but are either unable or unwilling to do so.”
“The most recent request from the opposition office seeking information regarding the Bligh Labor Government’s negotiations with A1GP was met with a reciprocal request for an extension until 11 March 2010, more than three months after the designated due date.”
These are the kinds of things that, as members of parliament, on both sides, we have to be very careful about. FOI has to mean FOI. After this bill goes through the parliament, if we see what is happening in Queensland continue to happen in the Australian departments, it will be a sad day for Australia. It will be a sad day for the aspirations that the member for Isaacs articulated so well in the parliament this evening. I accept that he is genuine in what he feels, and I think that all of us would want to see these kinds of aspirations delivered on by the Australian government and by the departments and bureaucracy in the Australian government so that Australia can be a better place and the people of Australia can be better informed.
Finally, I would just like to thank Alec Zeglis, who is with us tonight, for helping me prepare this contribution to the parliament. Alec is another fine young Australian who, one day, will be one of Australia’s leaders. Well done, Alec. Thank you.
I thank the member for Herbert for those kind words at the start of his speech and for his contribution. In a spirit of good democracy and open and accountable government, I rise to voice my strong support for the Information Commissioner Bill 2009 and Freedom of Information Amendment (Reform) Bill 2009. Australian democracy, like all democracy, relies on government being transparent to our people and institutions like the media to hold us accountable. Without this vital transparency, even historical and substantial democracies can breed secrecy and corruption. Without daylight, good government festers. We are lucky to have a history of continuous democracy. Nearly every country around the world has had blights on their democratic processes. We can look at the fascism that has arisen in Europe, the coups d’etat of Africa and the revolutions of South America, and even the United States has had civil wars, McCarthyism and other blights on its democratic processes. In Chris Wallace-Crabbe’s poem Terra Australis, he says of Australia:
We are the final children of the earth
Whom knowledge has not scarred—
not ‘scared’ but ‘scarred’. Looking back to my darker days under the Bjelke-Petersen government, as mentioned by the member for Herbert, this was the reality for Queenslanders. It was not just in the police service; it also infected the democratic process and the elected officials. Thankfully, a few good men and women on both sides of politics had the courage to stand against corruption. Since the Fitzgerald inquiry in 1989 Queensland has thrived under progressive, open and accountable governments, and, as the member for Herbert mentioned, more can be done.
In July last year, 20 years on from the Fitzgerald report, Tony Fitzgerald gave a lecture at the Inaugural Griffith University Tony Fitzgerald Lecture. He stressed that a lot more could be done. I am going to take you to some of the comments he made. Before I do, I particularly want to commend some of those people involved—not only AJ Brown at Griffith University but people from 20 years earlier, such as Mike Ahern, a National Party minister and later Premier. I commend Mike Ahern for his courage and commitment to good government. He let the Fitzgerald inquiry take place. Mike Ahern is well known as a fundamentally decent man. Consequently, the Queensland that I grew up in completely changed. We have wonderful police officers now that are able to shine—people like Commissioner Bob Atkinson, who leads the police service in Queensland. He is surely one of the most honourable men I have ever met, an inspiration to all young police officers and young Queenslanders.
In his lecture last year, at the Inaugural Tony Fitzgerald Lecture, Tony Fitzgerald said that every generation has a duty to historical truth. He warned us in that lecture that, tacitly at least, Queenslanders were encouraged to forget the repression and corruption which had occurred and the social upheaval that had been involved in eradicating those injustices. Younger Queenslanders know little of that era, the Bjelke-Petersen era, and are largely ignorant of the possibility that history might be repeated. It is a salutary warning. He said that ethics are always tested by incumbency. As a Queenslander in the Commonwealth parliament, I look to what has happened in my Queensland at the state government level and some of the tests that are put in front of elected officials.
The last point from the Fitzgerald lecture that I will make is the following quote:
Unfortunately, cynical, short-sighted political attitudes adopted for the benefit of particular politicians and their parties commonly have adverse consequences for the general community.
Those sentiments from Tony Fitzgerald, while particularly pointed, have a particular relevance for the Rudd government, peopled as it is by so many Queenslanders. That has informed the legislation that is before the House. Government cover-up and secrecy breed cynicism in the community, and obviously the last thing that we need is more cynicism about politics. We have to work hard to protect the integrity of our democracy. It is an often used quote, but 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, not only in the area of political donations and gifts but also by improving laws concerning freedom of information. We have already removed the power of ministers to issue conclusive certificates to refuse access to certain documents through FOI. Instead, all decisions to claim exemptions will be subject to a review by the Administrative Appeals Tribunal.
The bills before the House represent the biggest change to FOI since it was introduced way back in 1982, 29 years ago. That was back when Malcolm Fraser was the Prime Minister, back when Malcolm Fraser was a liberal with a capital ‘l’ rather than the liberal with a small ‘l’ that he seems to be now. To take you back—and I know that you are too young to remember this, Deputy Speaker Bird—Eye of the Tiger was No. 1 for about six weeks and Channel 9’s Today Show had its very first airing back in 1982, and it is still going strong. Chariots of Fire had won the Oscar for best picture and Michael Jackson’s Thriller had just been released. That contextualises the time in which FOI came about. We need to revisit the motives behind that legislation.
Through the bills before the chamber, we are further reforming the FOI Act to ensure that the right of access to documents is only limited where a stronger public interest lies in withholding access to those documents. Specifically, the public interest test states:
The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance be contrary to the public interest.
This legislation also lists the factors which must not be taken into account in deciding the public interest test. These include whether: access to the document could embarrass the Commonwealth, the document could be misinterpreted or misunderstood, the author of the document is of high seniority within the agency and the document could result in confusion or unnecessary debate. Some of the factors which would favour disclosure under the act include where the document would: inform debate on a matter of public importance; promote effective oversight of public expenditure, which is always important; and allow a person to access his or her own personal information.
As well as providing greater freedom of access to requested documents, the legislation heralds a new era of proactive disclosure. There is a term that people probably will not be rushing to have tattooed on their shoulders—‘proactive disclosure’ is probably not as catchy as ‘detailed programmatic specificity’, but it is an important term. Australian government agencies will have new obligations to proactively publish information, including: details of statutory appointments, information an agency routinely gives access to in response to requests under part 3 of FOI, information that is routinely provided to the parliament and certain operational information about an agency’s functions or powers in making decisions affecting members of the public.
While the overall intent of these bills is to provide greater access to government information, it does include two necessary and completely understandable exclusions relating to intelligence information. Intelligence agencies are already wholly excluded from the FOI Act. However, under this legislation extracts or summaries from intelligence agency documents such as ministerial briefings will also be excluded. Nevertheless, the Department of Defence ministers and agencies will be excluded only for information relating to the collection, reporting or analysis of operational intelligence. There is a general appreciation throughout the community that there is some government information that, for the sake of Australia’s security and safety, is better off under lock and key.
Next, fees for lodging FOI applications will also be abolished. Applicants will not pay for any charges for accessing their own personal information. Journalists and not-for-profit groups will not pay for the first five hours of decision making and all other applications will be charged after the first hour of decision making. This will ensure that as many people as possible can access information at the lowest possible cost. This legislation also brings forward the open access period for most records under the Archives Act from 30 years to 20 years and for cabinet notebooks from 50 years to 30 years. I look forward to 2040.
The Information Commissioner Bill 2009 will establish the Office of the Information Commissioner. This new Commonwealth agency will be headed by a new statutory officer called the Time Lord—sorry; just fooling with Doctor Who fans! The officer will be called the Information Commissioner. The commissioner will be responsible for all the functions and powers under the FOI Act and the Privacy Act, bringing these together under the one office for the first time. The Privacy Commissioner and the new FOI Commissioner will support the Information Commissioner. They will be responsible for: issuing guidelines on the administration of the FOI Act, because anybody who has ever been tangled up in red tape knows that the devil is always in the detail; investigating government agency compliance with the FOI Act; reporting on compliance with and operation of the FOI Act; administrating the training of staff; and reviewing decisions by agencies and ministers who refuse access to documents. This will include a new two-step review process. The first review will be conducted by the Information Commissioner. If not resolved, a second review will be done by the Administrative Appeals Tribunal.
As I said, these bills implement the biggest reform to FOI since it was introduced nearly 30 years ago. We are doing this because we want to make it easier for people to access information and to promote greater openness and transparency in government. For governments, freedom of information is a bit like going to the dentist. It might be a little bit painful, but you know that you are better off for it in the long run. We know that our democracy will be better for these changes. Unfortunately, under the coalition some people’s experience in trying to gain access to documents through freedom of information was a little bit like pulling teeth. We in the Rudd government believe that our achievements and our shortcomings should be on the record for all to see so that people can make an informed decision about our administration. We also believe that open government is better government. The singer Paul Kelly said, ‘I was born in a luck country and every day I hear the warning bells.’ This legislation before the chamber will help us all to hear the bells long before they toll for democracy. I commend the bills to the House.
Sitting suspended from 6.01 pm to 7.30 pm