Thursday, 13 May 2010
Australian Information Commissioner Bill 2010; Freedom of Information Amendment (Reform) Bill 2010
The Australian Greens welcome the Australian Information Commissioner Bill 2010 and the Freedom of Information Amendment (Reform) Bill 2010 and congratulate the government on having taken these important steps towards greater openness in government. I would like to add my remarks to those of Senator Brandis on the issue of onus of proof. He put it probably more eloquently and at greater length than I was going to, but those concerns were certainly shared by the Australian Greens. I suppose in this instance the government is to be commended for at least acknowledging, under the weight of overwhelming evidence, that it was wrong rather than, as we see so many times in this place, simply just pushing ahead. As a result this legislation, while very significant, is now being debated as noncontroversial.
Information is central to knowing how our elected representatives are exercising their power and to hold our representatives to account. The Greens believe that open and transparent government is a prerequisite to an effective democracy. We welcome the government’s commitment to a pro-disclosure culture and a restoration of open and transparent government. We also look forward to the review of the fees and charges because very significant concerns were raised in the committee process about the interaction between processing charges and application fees. We urge the government to bear in mind that the costs of fees and charges should not be prohibitive for the kind of freedom of information requests that agencies normally deal with. Access to information for an individual or an organisation should not be determined by their ability to pay, as such fees and charges need to be set at a reasonable level. We also look forward to developments in the application of freedom of information to parliamentary departments and would appreciate being kept informed of any progress in this area—it was set aside from consideration in these bills.
Senators will probably already be aware that we have a number of amendments that we will seek to move when we shift into the committee stage. I will briefly foreshadow them now. I do not propose to tie up the chamber for too long when we get to discussion of those amendments. I would firstly say, as is so often the case with this government and, I suppose, with the previous government, that this is a package of generally good legislation that the Australian Greens support. We concur that it will improve transparency and accountability of government departments and of course for that reason we are supporting it. But there is always a catch. There is always a poison pill, and in the case of this particular legislation it is quite a serious one—that the government has proposed to shroud intelligence and security agencies entirely from the reach of the Freedom of Information Act. The minister will be aware that I raised these issues when we debated a less comprehensive FOI bill earlier. Those issues remain. They have not changed, and the government is persisting with this idea that existing public interest immunity grounds are not sufficient for some reason—and we have never heard a justification for why not—and that in fact the administrative decisions of agencies, or the amount of paper clips that they are ordering, should be permanently beyond the reach of freedom of information legislation.
So the amendments that we will move seek to remove the current exemption from the FOI Act granted to intelligence agencies. We believe that the scope of exemptions from the act are central to the act’s effectiveness and we do not believe that simply because a document originated in a security agency it automatically has implications for national security and should therefore receive automatic and whole exemption from the Freedom of Information Act. If the Greens amendments succeed, security and intelligence agencies will still have the entirely legitimate right to prevent material from being released through FOI application processes under the normal grounds that they use today, including issues of national security, issues of operational secrecy and the kinds of legitimate public interest exemptions that, throughout a long history of convention in the Australian Senate, have been allowed as legitimate reasons for these agencies to withhold information. We are not proposing that those exemptions lapse or that they should no longer apply, simply that it is at best lazy drafting to simply exempt these agencies from freedom of information entirely. So our amendments go to that effect.
The second part of our amendments provides guidance for a review of this situation which is profoundly unsatisfactory to the Australian Greens. We propose that this review should take place after the act has been in operation for two years to ensure that it properly addresses the Greens concerns about wholesale exemptions from the act, particularly in respect to intelligence agencies. I will be interested to hear the minister’s remarks before we close the second reading debate on that issue specifically, in expectation that the minister may give us some commitments in this regard. In fact a two-year review is a pretty poor substitute for good public policy which would surely have allowed that security and intelligence agencies should not be beyond the reach of an instrument as important as freedom of information. In fact, these are precisely the kinds of agencies for which oversight by the public and by the parliament is more important than ever. I will make a couple of other concluding remarks when we move to the committee stage.