Thursday, 13 May 2010
Australian Information Commissioner Bill 2010; Freedom of Information Amendment (Reform) Bill 2010
Bills—by leave—taken together and as a whole.
by leave—I move Australian Greens amendments (1) to (5) to the Freedom of Information Amendment (Reform) Bill 2009 on sheet 6106:
(1) Schedule 6, item 4, page 134 (lines 27 to 30), item to be opposed.
(2) Schedule 6, page 137 (after line 30), after item 19, insert:
19A Subsections 7(1) and (1A)
Repeal the subsections.
(3) Schedule 6, items 20 and 21, page 137 (line 31) to page 139 (line 9), items to be opposed.
(4) Schedule 6, page 147 (after line 29), after item 37, insert:
37A Division 1 of Part I of Schedule 2 (the items relating to the Australian Security Intelligence Service, the Australian Security Intelligence Organisation, the Inspector-General of Intelligence and Security and the Office of National Assessments)
Repeal the subsections.
37B Division 2 of Part I of Schedule 2
Repeal the subsections.
Amendment (5) is an alternative to amendments (1) to (4)
(5) Schedule 4, item 57, page 118 (after line 32), after subsection 93B(2), insert:
(2A) The terms of reference of the review must provide that the persons conducting the review:
(a) must consider and report on whether the exemptions from the operation of this Act in respect of the intelligence agencies specified in Divisions 1 and 2 of Part I of Schedule 2 are appropriate; and
(b) may make recommendations about continuing or repealing those exemptions.
(2B) The review must include an opportunity for members of the public to make written submissions on the operation of this Act in respect of the intelligence agencies specified in Divisions 1 and 2 of Part I of Schedule 2.
Amendments (1) to (4) give effect to the issues that I raised before. Before we put them to a vote, I am interested to hear from the minister. I am presuming we do not have opposition consent for the amendments, as we did not the last time I raised them. What is it exactly about Australian security agencies that should render them entirely immune to freedom of information that does not apply, for example, to the CIA, to United States intelligence agencies and to intelligence agencies like MI5 or MI6 in Britain, which are subject to freedom of information laws? What is it exactly about Australian secrecy in the case of these agencies that is so special?
I indicate that, as Senator Ludlam has anticipated, the opposition does not support the Greens amendments. It has been a well-established principle in this country that matters of national security, and like matters, are well within the appropriate exclusions from the FOI regime and that we have other mechanisms, in particular the Parliamentary Joint Committee on Intelligence and Security, the Office of the Inspector-General of Intelligence and Security and recently, as a result of an initiative of the opposition in fact, the independent review of antiterrorism laws. There is a suite of safeguards which, in the opposition’s view, provide appropriate and searching oversight of the performance of national security agencies and which make it appropriate that they do not fall within the FOI regime.
Thank you both. In concurrence with the remarks of the opposition and in addition, the legislation of course does not change the status of intelligence agencies, which are now excluded from the FOI Act. I also remind the Senate that the ALRC open government report recommended that the intelligence agencies should remain wholly excluded from the operation of the act. In its reasons the review observed that, if intelligence agencies were subject to the FOI Act, ‘the vast majority ... of these documents would be exempt ...’
In answer to your specific question, the nature of the functions of the intelligence agencies is such that those functions would be compromised by the public dissemination of that information. These functions cannot be carried out with the same level of transparency ordinarily expected of administrative action. For those reasons and the reasons articulated by Senator Brandis, we would not agree with the amendment.
I do not propose to tie us up, but it appears that I am simply not being heard. We are not proposing to lift the ability of these agencies to continue to apply for public interest immunity on grounds of issues like national secrecy, operational security and so on. We are not proposing to lift those exemptions. What we are objecting to is the simple throwing of a shroud of invisibility over the agencies, giving them immunity from the FOI Act. I would put the question one more time, unless you simply do not intend to answer it: what is different about Australian security agencies? Why should the Freedom of Information Act apply to agencies in comparable democracies but not in Australia? If you do not have any answer to that question, I will simply put the amendments and we will move through.