Thursday, 13 August 2009
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 
Bill—by leave—taken as a whole.
by leave—I move Australian Greens amendments (1) and (4) on sheet 5792 together:
(1) Schedule 1, page 3 (after line 6), after item 1, insert:
1A Subsection 7(1)
Repeal the subsection.
(4) Schedule 1, page 13 (after line 28), at the end of the Schedule, add:
36 Division 1 of Part I of Schedule 2
Repeal the Division.
The chamber probably understands the intention here. Given that the minister is still with us, I would firstly like to put a question to him. Perhaps I misunderstood the statement that he made in his closing remarks, that the agencies that we are concerned with here are already completely exempt from the Freedom of Information Act, and therefore the amendments that I am putting are redundant. Minister, could you just clarify that for us.
It is certainly a clarifying statement, but I remain somewhat confused. In the example that I raised in the case of Dr Haneef, documents were sought from intelligence agencies via freedom of information and were found to not compromise national security and were therefore released, at least in part, into the public domain.
The simple answer is that they were not from intelligence agencies, as I understand it. I am happy for the record to be corrected. It seems to me that you are confusing intelligence agencies and policing agencies. We are talking about intelligence agencies, not policing agencies, with respect to the amendment.
Thank you, Minister. I think it will come down to a specific reading of the definition as such, because often the line between the two is particularly blurry as, for example, in the cases of ASIO and the AFP. Also, in an administrative sense, there is the sort of work that Senator Johnston did over a reasonable period of time in unearthing the facts behind the SAS pay scandal. It was an extraordinary amount of work and eventually led to the situation being rectified. Those people were lucky that they had senators in this place who were willing to go out and unearth that information, but, if that were not the case, freedom of information requests may well have been made of the department. Minister, could you clarify for us whether FOI requests of that nature, which are purely administrative and do not relate to national security, would be caught by the amendment that you are moving today.
If they are administrative documents in the hands of intelligence agencies, my understanding is that they are exempt. The green paper, the exposure draft, will continue that process. They are still outside the regime.
What I was really proposing to the government is that the specific amendments that I make today be passed by the Senate so that the matter of access to documents, under freedom of information, in defence and intelligence agencies can be dealt with in the substantive bill, which is to be brought before the Senate hopefully before too much longer, and will not be tangled up in the issue of the repeal of conclusive certificates, for which I believe we have the support of all parties in the Senate. On that note, I have moved amendments (1) and (4).
In response to that, dealing with both (1) and (4) together, the government does not accept the amendments moved by Senator Ludlam. The effect of item (1), effectively together with item (4), is to repeal the existing exclusion from the FOI Act that applies to some intelligence agencies and a limited number of other bodies, which includes the Auditor-General and the Australian Government Solicitor. If it is the intention of the Greens to apply the FOI Act to all intelligence agencies, then the amendment does not actually achieve that. I am not sure that I really want to provide you with the opportunity to correct it, either! The amendments do not cover the exclusion of Department of Defence intelligence agencies, which are prescribed for the purpose of subsection 7(1)(a) of the FOI Act. The way your amendment has been structured does not include all the intelligence agencies.
The government does recognise, though, if we go to the nub of the issue, that strong justification is needed to support wholly excluding agencies or classes of documents from the operation of the FOI Act. A total exclusion will be justified where the functions of the agency would be compromised by right of public access to information they hold. That is clearly the case for intelligence agencies. Intelligence agencies cannot realistically be expected to carry out their functions with the same level of transparency ordinarily expected of administrative action. Intelligence agencies remain accountable through special measures such as the Joint Standing Committee on Intelligence and Security and the inquiry power of the Inspector-General of Intelligence and Security.
In addition, the joint 1996 Australian Law Reform Commission and Administrative Review Council Open government report recommended that intelligence agencies should remain excluded from the operation of the act. That was recommendation 74. We are provided with that comfort. We looked at the original Open government report. In its reasons, the review observed that, if an intelligence agency were subject to the FOI Act, the vast majority of their documents would be exempt. Without going into any great detail, I will cease at that point, but, for all the reasons I have articulated, we are not supporting the amendments.
I indicate on behalf of the opposition that the opposition does not support these amendments either. It is our view that it is necessary to have some limitations on the removal of conclusive certificates appropriate exemptions in relation to these agencies and, for essentially similar reasons to those expressed by the minister on behalf of the government, the opposition will be voting against these amendments.
I indicate at this point, for the benefit of the chamber, that I do not intend to call a vote for the following two amendments. I move the Australian Greens amendment (2) on sheet 5792:
(2) Schedule 1, page 3 (after line 6), after item 1, insert:
1B Subsection 7(2A)
Repeal the subsection.
The government does not support this amendment. The effect of item 2 is to repeal the existing exclusion from the FOI Act that applies to documents in the possession of non-intelligence agencies that have been received from the intelligence agencies and the Inspector-General of Intelligence and Security. The purpose of this exclusion is to provide for consistency in the application of the FOI Act to a document of an intelligence agency or the IGIS. Intelligence agencies and the IGIS are now wholly excluded. Intelligence agencies cannot realistically be expected to carry out their functions with the same level of transparency ordinarily expected of administrative action. As a class, though it is the document, these documents could be expected to be almost all exempt if an access application were to be made. The government believes a strong case exists for wholly excluding intelligence agencies and their documents, both in the hands of agencies and ministers for the operation of the FOI Act. It is otherwise to ensure consistency in respect of a document.
The opposition opposes this amendment. It strikes me as more than curious that the Greens would think there should be, in freedom of information laws, equal coverage of the documents of security agencies, which, by their very nature, are necessarily kept secret, and other categories of government documents. Plainly, the documents and information embodied in documents obtained by national security agencies by their very nature must be kept secret. There are very sound national security reasons that everybody understands why that should be so. To treat them as being in a similar category to general government information is a nonsense. For those reasons, the opposition concurs with the government’s opposition to this amendment.
I did not intend to speak on this provision because I believed it would probably fail. Actually, that has been made abundantly clear at this point. It is consistent with the first two amendments that we moved. I have been listening carefully, and I would put to the minister, or Senator Brandis if he feels like he would like to comment: where are these amendments inconsistent in any way with the existing provisions of the Freedom of Information Act that provide that for a number of legitimate reasons documents will be exempt on grounds of national security and so on? I simply do not accept the fact that the amendments that we are moving today will harm or compromise national security or the work that these agencies are doing, and so I am really puzzled as to why the government is running these arguments that we are somehow intent on compromising national security when that is patently not the case. We are not going anywhere near the existing provisions in the act which guarantee that documents which may be germane to national security or similar matters should be exempt.
The short answer is, I think, what I said at the beginning, which was that the effect of item 2 is to repeal—that is, what you are intending to do is repeal the existing exclusion from the FOI Act that applies to a document in the possession of a non-intelligence agency that has been received from the intelligence agency. So the intelligence agency is or could be the originator of the document that is exempt, and because it is in the possession of a non-intelligence agency it should continue to hold an exemption. The purpose of this exclusion is to provide for consistency in the application of the FOI Act to a document of an intelligence agency or the IGIS. It would be odd not to think that, quite frankly. I am not saying that you think that, Senator Ludlum, but this item, in my view, misses the intention of what you are trying to achieve. It means that intelligence can continue to do their work with the exemption and provide information or documents to non-intelligence agencies and continue to have the understanding that the documents would be exempted to facilitate their work.
I move Australian Greens amendment (3) on sheet 5792:
(3) Schedule 1, item 2, page 3 (lines 7 to 18), item to be opposed.
Amendment (3) is intended to oppose item 2 of the bill, which would insert the subsection 7(2B). The Greens oppose this proposed subsection, which would allow a document in the possession of a minister to be automatically exempt from operation of the Freedom of Information Act when it has originated with or been received from defence or security agencies. Regardless of the government’s protestations that this subsection is merely to correct an anomaly, I believe this subsection in effect is an expansion of the exemptions from the existing act, which we opposed in our previous set of amendments. I commend this amendment to the Senate.
I understand that Senator Ludlam believes that it is not an anomaly. It does rectify an anomaly. The effect of the measure that the government proposes in item 2 of schedule 1 of the bill will be to exclude a document from the FOI Act that is held by a minister and has been received from or has originated with an intelligence agency. The purpose is to have the policy that applies now to non-intelligence agencies apply to ministers, which is what I highlighted previously in amendment (2). It would not be logical to treat intelligence agency documents in the hands of ministers differently to when these documents are in the hands of agencies.
The government believes there is a strong case for wholly excluding intelligence agencies and their documents—both in the hands of agencies and ministers—from the operation of the FOI Act. It would otherwise mean that intelligence agencies would have an exemption for their documents which go to non-intelligence agencies, but ministers would then not be able to view those documents on the basis that an anomalous position could arise where ministers, not being exempt, would then have an FOI request placed on them for those documents. The document may then be otherwise subject to the FOI provisions.