Thursday, 13 May 2010
Australian Information Commissioner Bill 2010; Freedom of Information Amendment (Reform) Bill 2010
I indicate on behalf of the opposition that, with the amendments that have been foreshadowed to us by the Special Minister of State and Cabinet Secretary—and in particular foreshadowed in the minister’s letter to me of the week before last—the opposition is in a position to and does support the Australian Information Commissioner Bill 2010 and the Freedom of Information Amendment (Reform) Bill 2010. The story of how we came to this position is a long and in many ways sorry one. What in its original form was represented as a considerable enhancement to the freedom of information laws of Australia—laws which I might say were introduced originally by a Liberal Attorney-General, the late Senator Peter Durack, during the Fraser government—in fact, under close scrutiny, appeared to be a very severe curtailment of freedom of information in this country. When these bills were referred to the Senate Finance and Public Administration Committee, that committee discovered in particular a proposal to remove the reversal of the onus of proof provided for in section 61 of the Freedom of Information Act so as to cast the onus of proof upon an applicant rather than upon a minister or the minister’s delegate seeking to defend a decision to refuse to disclose information.
To understand why this is such an important issue, it is important to appreciate this. Freedom of information laws operate on the assumption that, unless cause is shown by government why information ought to be withheld from a citizen, the information should be available to the citizen. There are perfectly appropriate exceptions made to that principle, the most obvious of which of course is in relation to national security. There are others as well, including protection of other people’s privacy, protection of commercial-in-confidence information and so on. If a refusal of an application under the Freedom of Information Act occurs then the applicant—that is, the citizen seeking the availability of the information—has a right of appeal to the Administrative Appeals Tribunal. It has always been the case that a party seeking to overturn an adverse decision or a refusal by the minister has had the benefit of a reverse onus. That is what section 61 of the act provided. That has always been uncontroversial.
I have taken the trouble of going as far back as to look at the original report of the Senate Standing Committee on Constitutional and Legal Affairs of November 1979, which reported on the first iteration of the Freedom of Information Act—that is, the Freedom of Information Bill 1978. I discovered that, from the very first occasion that freedom of information legislation was introduced into this chamber, it has been uncontroversial that a citizen who is faced with the refusal of an access request and wishes to appeal to the Administrative Appeals Tribunal to overturn that refusal enjoys a reverse onus—that is, before the Administrative Appeals Tribunal it remains for the government, for the minister or his delegate, to justify the refusal to grant access to the citizen.
There is a very important reason why that should be so. Once an application for access to a document is refused, the applicant has no way of testing whether or not the appropriate criteria and statutory tests have been observed by the decision maker who was responsible for the refusal. How on earth is an applicant appealing to the Administrative Appeals Tribunal to be in a position even so much as to mount an argument as to why the decision about refusal of access to a document was wrong when ex hypothesi they cannot have the document themselves? They would not be able in any conceivable set of circumstances to discharge an onus of proof that lay upon them to show why the decision was wrong. In the words used by coalition senators in their dissenting report following the Senate Finance and Public Administration Committee’s hearing:
The government, the decision maker, the minister or his delegate have a monopoly of information, so the practical effect of removing the reverse onus in section 61 of the act would be to make any decision to refuse access for all intents and purposes unchallengeable on appeal.
Yet in their original form that is what these bills sought to do. Under cover of a lot of rhetoric about reforming and expanding freedom of information laws, what the Rudd government was originally planning to do in these bills was to remove the reverse onus in section 61 so as to make any refusal of access to a document practically unchallengeable. It would have been the greatest reversal of freedom of information practice in the history of the Freedom of Information Act. Astonishingly and to the very great discredit of those responsible for the preparation of the bills and their presentation to the Senate committee, this fundamental change—this extremely significant and deleterious change to section 61 of the act—was in fact included in a schedule presented to the Senate committee as a miscellaneous technical amendment.
Just think about that. Dwell and reflect for a moment on the supreme irony that, in a bill which falsely claimed to be expanding and reforming the freedom of information regime, an amendment which would have set back the regime to make it practically unworkable was itself concealed from the Senate committee by being treated as a technical minor amendment. That is hardly freedom of information; a conspiracy to conceal highly material information from the Senate committee would be a better description. Nevertheless, due to the industry of coalition senators and, in particular, Senator Scott Ryan, this anomaly was discovered and highlighted.
A number of witnesses before the Senate committee who were deeply experienced in freedom of information practice dwelt upon the effects of the removal of the reverse onus in section 61. One of those witnesses was Mr Mark Robinson, who appeared on behalf of the Law Council of Australia. Mr Robinson is one of Australia’s most experienced freedom of information practitioners, having appeared in hundreds of applications both for and against governments and, in the course of 17 years, having sat as a judicial officer hearing applications under the New South Wales Freedom of Information Act and, in fact, having been the draftsman of the New South Wales Freedom of Information Act.
In response to an assertion on behalf of the government that the removal of the reverse onus of proof in section 61 would have no practical effect on the operation of the act, this is what Mr Robinson had to tell the committee:
It is an irrelevant assertion. I say this because the applicant does not normally know what document it is that he or she is seeking, and he or she does not normally know what it contains. They may think they do but they may be wrong. And how can an applicant meaningfully assist the tribunal by presenting his or her case first and by bearing the onus of proving something? You only have to think about it logically, I submit. As an applicant I can stand up and say: ‘I put an FOI application in. I don’t have to tell you why I did it, because that’s irrelevant. I don’t have to tell you who I am, because that’s irrelevant. I don’t have to tell you what I’m going to do with the document when I get it, because that’s often irrelevant—and I want the document.’ And I sit down. Now, how is that possibly going to discharge the onus of proof? It puts an applicant in an impossible position, both practically and as a matter of fairness, and as a matter of law. On one view of it, that onus could never be discharged, ever.
I put to Mr Robinson the proposition that:
… it is almost impossible to imagine how an applicant could succeed if he bears the onus of proof since he has no means of knowing what is in the document.
When I asked him whether he agreed with that proposition, Mr Robinson said:
He went on to say that the impact of the government’s proposal to withdraw the reverse onus of proof in section 61 would be to undermine the Freedom of Information Act. He went on to say:
The most stark way to appreciate this is to accept that, in most FOI cases since the beginning of the FOI Act, in the AAT the Commonwealth goes first. The Commonwealth agency has presented its case first in every case I have been involved in and in almost every case that I am aware of … third parties who want to preserve their trade secrets may sometimes come in. They are called reverse FOI applications by other people. The situation is different there, but in the ordinary FOI case of an FOI applicant wanting a document from the Commonwealth the Commonwealth goes first. This will change that.
I asked Mr Robinson whether he agreed that the effect of section 61 was at variance with the declaration of intent in the objects clause of the bill that it would expand access to information. Mr Robinson said that, yes, he did. In response to questions from Senator Scott Ryan, Professor Spencer Zifcak, the Vice-President of Liberty Victoria, also expressed concern that the removal of the onus of proof would, for all practical purposes, undermine the operation of the FOI Act.
Government senators in their majority report of the Senate Standing Committee on Legal and Constitutional Affairs thought that they had reached a halfway point by suggesting that perhaps there could be no onus of proof provision in the amended act. But, of course, that does not meet the objection. An applicant for information under the FOI Act, faced with a situation in which a monopoly of knowledge is possessed by those who have refused an access application, is in no better position if there is no onus of proof than if the onus of proof lies upon them. The only way that FOI practice can be observed is if the onus of proof—the onus of upholding the refusal to provide information, in other words—lies on the decision maker—that is, the minister or their delegate because only they, as I have said in my remarks, are in a position to know what is in the document whose disclosure they are resisting.
I am pleased to say that at long last the minister, Senator Ludwig, saw the sense in what the opposition was saying and saw the sense in what was contained in the coalition senators’ minority report. In a letter which he directed to me the week before last Senator Ludwig capitulated on the issue of onus of proof just as the government capitulated on a number of other issues which will form the government amendments which are about to be moved by the minister. It is for that reason that the opposition now find ourselves in a position in which we are able to support this legislation. We support its intent; we support the other aspects of the legislation which I have not dwelt upon in these remarks. The only reason this legislation has now become uncontroversial is that the government capitulated to the opposition. The government was found out in trying to slip past the Senate and a Senate committee, under the ruse that it was a technical amendment only, a proposal which would have rendered unworkable the entire scheme of Australia’s freedom of information legislation.
There is so much heroic rhetoric from the Rudd government. This is yet another example of the total disconnect between the heroic rhetoric of the Rudd government and the reality of its very nasty and deceptive political practice. On this occasion, as on so many other occasions, the Rudd government has been found out. It has backed down from its attempt to distort and set back Australia’s freedom of information laws. I particularly want to thank Senator Scott Ryan for his efforts in revealing this attempt to get what would have been a very, very deleterious amendment past the scrutiny of the Senate. In the form in which it will now be amended, the opposition is in a position to support the legislation.