Thursday, 18 March 2021
Archives and Other Legislation Amendment Bill 2021; Second Reading
I rise to speak on the Archives and Other Legislation Amendment Bill 2021, since it was one of the things that the Labor Party requested of the government in the discussions on the terms of reference for the inquiry. I'd like to start by speaking directly to our staff, who are listening throughout the building. I'm sure they are gripped by what's going on here this afternoon, or by what might come across in the Hansard, as they make this place function. To our staff, I say: this is your workplace. You deserve nothing but a completely safe and supportive environment. As Labor parliamentarians we have a special duty to you, our staff: to fight for you internally just as hard as we fight for every worker across the country externally.
On 5 March this year the government announced that it would appoint the Sex Discrimination Commissioner, Kate Jenkins, to conduct an independent review into workplaces of parliamentarians and their staff. Labor believes that all workplaces in Australia, including our nation's parliament, should be safe. We know, thanks to the courage of people like Brittany Higgins and the thousands of men and women who marched this week, that that isn't true. An independent review is an important step forward. As set out in the terms of reference, the aim of the review is to ensure that all Commonwealth parliamentary places are safe and respectful and that our national parliament reflects best practices in the prevention and handling of bullying, sexual harassment and sexual assaults. If the review is to achieve its aims, it's absolutely critical that as many current and former staff as possible participate. We need to listen to those staff, particularly women, who have had experiences in our workplaces that nobody should have had. The review process, led by Ms Jenkins, should provide an opportunity for people to tell their stories in a way that is confidential, private and safe. But, to ensure this, this parliament must ensure that all participants have confidence in that process.
Concerns have been raised by staff that, as the Human Rights Commission is subject to the Freedom of Information Act and the Archives Act, there is currently no guarantee that information submitted to the review will remain private. These concerns have been raised by Labor in discussions with the government over recent weeks. On Tuesday the Leader of the Opposition wrote to the Prime Minister indicating that Labor would support the issue being resolved before parliament rises for the Easter break. Yesterday a bipartisan group of current and former federal parliamentary staff members and their supporters wrote to the opposition leader and the Prime Minister expressing those same concerns. The bill introduced today is the product of negotiations between the Leader of the Opposition and the Prime Minister. The bill ensures that current and former staff can have confidence that their privacy will be protected if they participate in the review. This bill exempts documents provided to the independent review or brought into existence by the review from being released under the Freedom of Information Act and the Archives Act, the latter for a period of 99 years, consistent with the status of royal commission documents.
I'd like to thank all current and former staff from all sides who have engaged in the review issues so far. I'd also like to thank the government for working with Labor to address this important issue. We all recognise that there is some way to go in this process and that staff must be at the centre of it. Labor hopes that the bill ensures that all those who want to participate in this review will have the confidence to do so following the passage of this legislation.
I rise to speak on the Archives and Other Legislation Amendment Bill 2021 and this important fix, which will ensure that people who participate in the review being undertaken by the Sex Discrimination Commissioner, Kate Jenkins, can share their stories without fear of their identities or their stories being revealed against their wishes through the FOI process. The Greens supported and called for his important review into the culture of this building, those who work here and those who work for parliamentarians right around the country and are employed under the MOP(S) Act. We want staff members, former staff members and people who work in this building to be able to share their stories at that review and for their stories and submissions to be disclosed only with the consent of that person. We don't want complete randoms to be able to FOI someone's serious disclosure without their permission. The Greens have long supported strong and robust FOI laws. In fact, we would love to see an awful lot of reforms to freedom of information laws, including reduction in costs and diminution of existing loopholes, but that's a matter for another day. In this particular instance, we strongly support staff members being supported and encouraged to participate in this review. We will certainly be encouraging our staff members to do so, and I'm hopeful that this legislative fix will remove any chilling effects that might otherwise have applied.
There was quite a bit of chatter around the building this week because people were nervous that their stories, their confidences, would be revealed contrary to their wishes. We don't want this review to be undermined; we want this review to be as fulsome and comprehensive as it can be. We really want people to come forward. We want staff members, no matter what political party they work for, to come forward. It doesn't matter whether you're working in the early childhood education centre, in the press gallery—in whatever capacity you work in this building or for whomever you work—we want people to participate in this review. The fix that's been proposed in this bill will enable people to do so with confidence that their stories, their confidences, won't be revealed against their wishes. It is important that people can choose to share their stories if they so wish. That confidentiality is a right of the person making that disclosure, and we strongly support that. Staff members, if they are victims-survivors, deserve that right to make the call about whether their stories be made public or not.
I want to make just a few other remarks. I won't go too long, because I'm conscious that there are lots of folk who want to speak, and we've got only half an hour—which is a record short time to debate a bill, but I think we all appreciate the need for this to happen on an urgent basis. I'm grateful that in the terms of reference for the Jenkins review the government took on board the request that the Greens made—and it may well be that other parties ask for similar things—to make sure that former staffers' views could be considered and included and to make sure that folk in the building were covered, not just MOP(S) Act employees. The significance of that is that the press gallery are within scope for this culture review. Sadly, we know that some dodgy, sexist behaviour—unsafe workplaces, to varying degrees—has also plagued the press gallery, not just the offices of members of parliament. So, I'm grateful that that's within scope.
I'm also pleased that we're finally getting to this loophole. We've been asking for this to be fixed for a week, and the government did have a few quiet days there when it was sitting on the industrial relations bill. There's been an awful flurry today. I'm disappointed that we are doing this at the last minute, when the government had good notice that this was a loophole that needed to be fixed. Nevertheless, I'm grateful that we are now attending to fixing it.
On the drafting itself, I've had several reads of it. I'm not sure we'll have time for a committee stage but I want to flag my potential concern and I'll seek the reassurance of the relevant minister, if there's time for such a response. The wording of one of the limbs of what defines a 'document' potentially seems quite broad. Our concern is that drafts of any of the Jenkins reports or interim reports or recommendations would be out of scope. Whilst we want this review to proceed without interference, we also don't want the government to interfere with this review. So, if the Sex Discrimination Commissioner prepares a draft report then we would want for that to be FOI-able, because we'd want to see whether the government sought changes to that report.
With that caveat and with that question about the purpose of the second limb of that definition, we say that we support the bill. I understand that we're not able to move amendments, in any event, but I'm seeking your reassurance as to the intention behind that limb of the test. With that, I will finish by encouraging all staff members and workers in this building to engage in the Jenkins review. It's been a harrowing and revealing few weeks for many in this building. I think women have been on an emotional roller-coaster. Despite the emotional turmoil that talking about these matters provokes in so many of us, we cannot let this opportunity for reform pass us by. And I want to place on record my gratitude for the courage and the guts of all of the women who have come forward and for the people in the press gallery—mostly women, I might add—who have not let this issue drop off the radar. We cannot let sexism, misogyny and sexual assault and harassment fester in any workplace, let alone this workplace, which is looked to as an example for others.
So, let's get this culture review done. My final point is that I'm looking forward to the progress update of the Jenkins review—another request that the Greens made in the course of discussions about the terms of reference. We didn't want to wait until November to see the recommendations for what we expect to be an independent process. That's what we think should happen. We wanted to make sure the pressure was maintained and the momentum was maintained. So, we're looking forward to the progress update, which I understand is happening in July. With that, I conclude my remarks and signify the Greens' support for this bill.
I will make a very short contribution to this bill, the Archives and Other Legislation Amendment Bill 2021. There are a couple of things I would like to say in relation to the drafting. The drafting is such that I don't think it would give any FOI officer the choice to do what Senator Waters is asking, because you can't just choose how you wish to interpret the act. But one resolution may well be that, in the face of an FOI request for a draft, the government or the commissioner might consider simply releasing it administratively. I don't think that's something you can probably commit to at this point in time, but perhaps you can in discussions post the passage of this bill.
There is something I would ask the government for a commitment to in the minister's response. The fact is that this bill, perhaps unintentionally, covers a government submission to the independent review, and the whole principle behind FOI is to give access to government information or information held by government. So I think it would be reasonable for the minister to commit to table in this place any submission made to the independent review, subject of course to the redaction of information that might cause issues from a privacy perspective—things such as names and/or case examples, as an example. I would ask the minister to make a commitment to table any submissions that are made.
Finally, I would like to say that, had I had notice of this bill, perhaps I would have taken the opportunity to amend the bill in a number of different ways. The FOI Act is not working properly. I want to point out a couple of very important points. Right now, we have a situation where, when an FOI goes to the Information Commissioner, it takes between one and two years to get a response. There are a number of reasons why that is the case. One of the reasons is the fact that we don't have an FOI commissioner. We haven't had an FOI commissioner since 2014, and I think that's actually, in some sense, unconstitutional, because the will of the parliament is that there should be. But I won't ask that that be debated. I just point out to the minister that I would really be grateful to engage in discussion over the next few weeks in relation to the fact that we don't have an FOI commissioner. But, if you would at least make a commitment in relation to any submissions the government makes being tabled in this place, you would have my full support for this bill.
I thank colleagues in the Senate chamber for the way that they have approached this small but important change to the way that the Freedom of Information Act and the Archives Act will operate in relation to information that's provided to the Independent Review into Commonwealth Parliamentary Workplaces, which, as we know, is being led by the Sex Discrimination Commissioner, Ms Jenkins. The review has been established to build an understanding of the culture of Commonwealth Parliamentary workplaces, with the aim of building a safe and a respectful workplace in which all staff are able to do their work, be their best and have clear and effective mechanisms to prevent and address bullying, sexual harassment and sexual assault.
I hear what's been raised by senators in the course of their contributions, and, given that we may not have the time for a committee stage, I may take a moment now to address those concerns. In relation to the concern raised by Senator Patrick that the terms of the Archives and Other Legislation Amendment Bill are cast in language that could be interpreted to be wide enough to encompass a government submission, I offer a commitment on behalf of the government that we intend to release publicly any government submission that is made, subject of course to removing the private information of people who are complainants or victims and that might be sensitive in that nature. But, in terms of providing submissions on behalf of government departments or members of the government itself, that is information we are prepared to provide.
In relation to the concern raised by Senator Waters, I acknowledge the concern about the breadth of the language that's used and would like to put on the record that it is not the government's intention to read that language in a way that would be so sweeping as to make the report itself secret. It is our intention to make very clear the outcomes of the report and make public the recommendations. We will have an opportunity to see in a public way the interim report and the interim recommendations in July and, of course, there will be a public release of the final report come November. There's an intention to deal with this in the open, clear air, and I trust that that will satisfy the senators and their concerns.
The review's terms of reference include understanding the experiences of current and former staff and parliamentarians with respect to a safe and respectful workplace, and this is an important part of the review. So the purpose of this bill is to make sure that people can come forward to the independent review and provide personal information with complete confidence that that information will not be released to others without their permission. That's an important thing if we're going to give people who work here the confidence they need to be able to come forward and share what may well be very delicate, sensitive, traumatic or personal information.
The Australian Human Rights Commission is subject in ordinary terms to the Freedom of Information Act, and that means that ordinarily it can use exemptions under the act to seek to prevent the release of some personal information, but it can't guarantee to us unequivocally that ordinarily that information would not be released now or into the future. So the purpose of this bill is to fix that very problem so that we can give a very clear assurance to anyone who comes forward that privacy can be maintained if that's their wish. Of course the government is concerned that the information that could be provided to the review may well be sensitive and personal in nature and that it may have serious consequences for the health and wellbeing of the individuals involved, were it to be released without permission. Assurance about the protection of that information and those who are providing submissions to the review is really important to making sure we get the maximum amount of contribution from the people who work in this place and those who have done so in the past. It's worth noting that amendments to the act of a similar nature were made for private sessions in relation to the child sexual abuse royal commission. It's something of an analogy. It's sensitive information and we want to make sure that it's treated with the kind of respect that's necessary to ensure people come forward.
So I thank the chamber for their willingness to entertain this bill, particularly at this time in the week. It has been something on which the government has acted from the very beginning of this week. Of course, these things take time to put together. It is great to see all of the parties and senators in this chamber prepared to do what's necessary to get it done.
It's also worth noting that the bill has the consequence that it will exempt all documents given to, or received by, the independent review as well as documents that are brought into existence by the review, with the exception of the matters for which I have given undertakings.
The further matter I would draw the chamber's attention to is that in relation to the Archives Act the bill will increase the open access period for Commonwealth records that contain the information from the independent review for 99 years. It will prevent accelerated open or special access during this period to make sure we are fulsomely and for the long term protecting the privacy of the people who have the courage to come forward and contribute to the review. I commend the bill to the Senate and thank all senators for their willingness to support a bill of this importance.
Question agreed to.
Bill read a second time.