Bills

Freedom of Information (Offences) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:52): I rise to speak on the Freedom of Information (Offences) Amendment Bill 2014 introduced by the member for Hartley, which I think is his maiden bill. Actually, it is the second. I think you had great success with the garnishee orders.

Mr Tarzia: We're hoping to.

Ms CHAPMAN: We're hoping to, is that it? Excellent; ever hopeful that the government might be enlightened to support that. This particular bill arises out of two things: firstly, the frightening report and recommendations to this parliament published in May 2014 by former Ombudsman Richard Bingham titled 'An audit of state government departments' implementation of the Freedom of Information Act', and secondly, the government's inaction in respect of the recommendations arising from that report.

Essentially, one of the very significant findings of Mr Bingham is that, in investigating 12 government agencies over the previous year in respect of their management and processing of freedom of information applications, he found:

it is common practice across all of the agencies to provide copies of FOI applications, determinations (draft or otherwise) and documents to their Minister to ‘get the green light’ prior to [the] finalisation of access requests. While the Act permits a Minister to direct their agency’s determination, evidence provided to the audit strongly suggests that ministerial or political influence is brought to bear on agencies’ FOI officers, and that FOI officers may have been pressured to change their determinations in particular instances. If a ministerial decision or direction is involved, it should be clearly set out in the agencies’ determinations

Specific details of allegations of political interference are outlined in part 8, in particular on page 83 onwards, of Mr Bingham's report.

I found this a staggering revelation. It did not surprise me, in fact, because, for someone who is a frequent utiliser of the Freedom of Information Act and has to wait many months and then have great fights in the District Court to get information for South Australians which should otherwise be available to them readily, it is an ongoing battle. It did not surprise me how difficult that process is and that Mr Bingham would come back with some recommendations to have better application of this act.

What was concerning was this abuse of the ministerial position to interfere with those determinations. That is really concerning. I think it requires very significant investigation. I am disappointed that the Attorney-General was flippant in response to questions about what he is doing about the findings in this report. He is basically saying, 'If somebody has a problem and they are concerned about it, they can rush off to ICAC or they can report it to the relevant officers.' The Attorney-General has had a damning report tabled in this parliament and is quite dismissive of doing anything about it; he has the whole head-in-the-sand approach.

The disturbing aspect is that, months later, the government has not produced any response to the recommendations put by Mr Bingham, including two of his most significant recommendations out of the 33, and that is offences need to be created to protect FOI officers and the agencies' decisions in respect of the FOI applications. There were two things that he recommended in respect of those offences, which have been taken up in this bill by the member for Hartley, because, quite frankly, the Attorney-General is either unwilling, unable or completely immune from any kind of feeling of responsibility to actually act on this.

The member for Hartley has come to the rescue and I think he should be commended for it. He proposes in this bill to make it an offence for a person to give improper directions or influence in respect of an agency's decision on FOI application to amend a record and, similarly, to give improper directions or influence in the same circumstances in respect of access to documents. Further, the bill makes it an offence of $10,000 if an accredited FOI officer fails to report to the Office for Public Integrity a suspicion that such a direction has been given.

Since this report, we have had the annual report, of course, from the ICAC Commissioner, which details scurrilous practices of the government in respect of the operation of using private emails for the purposes of conducting business. He has given evidence to the committee of inquiry here at the parliament confirming that this practice should stop and that the Attorney-General should issue a memorandum to the persons who are in government to make sure that, if they are doing this, that practice ceases. It is potentially in breach of the State Records Act for them to be able to subvert the processes of the clear recording of government business.

Again, what is the Attorney doing on this? Nothing. Six weeks later, he has not even finished getting the draft memo out to government agencies to instruct these people, if they are doing it, to stop and that, if they have done it, they are not to destroy the records and that they are, of course, to be surrendered for the purposes of the State Records Act. It is critical that, if the government are not prepared to act when these independent watchdogs provide reports to this parliament, if the Attorney wants to put his head in the sand and the rest of the government want to just sit there in silence and pretend nothing is wrong, then people like the member for Hartley will come to this parliament and make sure that they are addressed. I commend him for that. This is a very important amendment.

I say also that I think it was yesterday morning I woke up and looked at TheAdvertiser to find a report on the Hon. Robert Brokenshire's bill in the Legislative Council, indicating that he was proposing offences in respect of FOI matters which offered a $5,000—

Mr Tarzia interjecting:

Ms CHAPMAN: Sorry, the Hon. Mark Parnell had similarly proposed a bill in the Legislative Council. I keep an eye on what is happening in the Legislative Council and I am a little bit disappointed that the Hon. Mark Parnell obviously had not already studiously read the member for Hartley's bill and was ready to give it some support, or at least identify some significant penalty that is there and not let them get off the hook too lightly with some pathetic $5,000 penalty.

In any event, that is a matter which has already captured the attention of the Hon. Mr Parnell. I know that he has also been involved in attempts to get information. We are both seeking material in relation to the Mount Barker development and others. We had to go off to the District Court to get the material released.

I was given one pathetic excuse—just to give you one example of the sort of excuses we get sometimes on an FOI—when I had a rejection for some submissions made in respect of the Mount Barker development on the basis that it might cause marital discourse between the two different authors of the submissions. In other words, a husband and wife presumably had put in different and opposing submissions, and if one found out about the other there would be some kind of dust-up in the domestic environment. What a joke!

We are deprived of this information about which we are asked to make major decisions or to make some assessment on whether the government has acted properly in making its assessment, in that instance in respect of Mount Barker. That is the sort of nonsense we have to put up with in the government's secrecy surrounding the collection and availability of information in the public realm.

Congratulations go to the member. I certainly hope that the government realises the importance of this and that they are genuinely bona fide about transparency, which they claim to be. They came in here recently on the civil liability legislation, which has now passed, desiring to be more open and transparent, yet when it comes to matters such as this they advance at glacial pace in respect of introducing the reform as recommended by the independent watchdogs. I support the bill.

Mr PICTON (Kaurna) (16:01): I thank the member for Hartley for bringing the bill to the chamber because it is certainly an interesting discussion point, and I was drawn to contribute some comments. I do not think I am the lead government speaker on the bill, but I want to contribute some comments to put a bit of balance into this. I am sure that freedom of information is something that all members thoroughly support. I note that the current act about which members opposite complain is a far more improved act to the one that the previous Liberal government had. This government has made it much easier for information to be accessed through it.

We are certainly very keen to be an open and accessible government, but there does need to be balance and there need to be some limits on the use of that act. One example I would like to talk about is the experience we have seen federally, and one I have had some personal experience with, involving tobacco companies using the Freedom of Information Act federally to try to stop policies and to use it as part of a discovery process and as a time-wasting device against government departments and public health measures they do not agree with.

I refer members to Senate estimates on 15 February 2012, where the then secretary of the department for health and ageing, Jane Halton, discussed this. She said that 64 tobacco FOI matters had been received at that time since April 2010, which is a massive number of requests sent in to the department, and there were a number of others to departments across the federal government. She that said British American Tobacco Australia had 10 alone which had:

tied up significant departmental resources to the tune of $643,000 over a period of up to 18 months. The charging regime, which I think I am on the record as being unhappy with, only allows around the 20 per cent we estimated—that is, 21 per cent—of that to be recovered. At the same time, and by way of context, I make the point that the department has had to handle some 47 other requests on tobacco, including negotiations with applicants, reviews and appeals to the Administrative Appeals Tribunal and the High Court.

She went on to say that it was 'basically designed to tie up departmental resources which we cannot cost recover'. I think that is something that needs to be thought of in this house when we discuss freedom of information. While there are many good uses, and most of the good uses for the act are people finding out their personal information, there can be some abuses of it.

Certainly, in my time in the state government, I recall many times when we saw some huge fishing expeditions from the opposition, sometimes sending in a request for every document on a certain day—every department's documents on that day—with no context, no avenue of inquiry, just 'every document'. Then they would use those titles of documents to try to find out what murky things they could uncover. It was basically just an attempt to fish into a department and tie up resources, and it is something that the act should not be used for.

I think one thing that this government has been doing fantastically over the past couple of years is open disclosure, that is, putting data on the internet available for the whole public to see. We have our data.sa.gov.au site, which is very well used, and those sorts of data resources should be available for all the public to see and all the public to utilise.

There has also been a number of data disclosures in terms of travel costs by ministers and senior departmental executives which were routinely FOI'd, and we are now putting them on the web for all to see. I think that is to be commended. As well, in the health area, we have put up the emergency dashboard and the elective surgery dashboard so that everybody can see what the statistics are at any time, and that is to be commended. I would like to see that extended to other departments and other agencies.

One thing I would also like to see is what the federal government has done, which is have an open disclosure access for FOI so that, if you put in an FOI request to a department, they send out the information and they also put that information on the website so that everybody can see that information. That prevents some people, particularly politicians, using that information maybe three or four months later when the media might be having a slow news day. Out comes this file, and they say, 'Here's this secret file that we have uncovered,' and it has actually been sitting there for four months and they could have released this information at any time. We should put that on the website so that it is available for all.

As people might have suspected, I am not particularly supportive of this bill, but good on the member for Hartley for bringing it forward. I was listening particularly attentively to the deputy leader's discussion and not at any stage did I hear her say, 'This is now Liberal Party policy.' I never heard her say, 'If we get into government, we will bring in this act.' We all know, everybody who is listening to this debate knows, that this is something that you say in opposition but if you were over here you would never bring this bill forward.

An honourable member interjecting:

Mr PICTON: So I would like to see the member for Hartley sign in blood that he will move this bill if he is ever in government.

An honourable member interjecting:

The DEPUTY SPEAKER: I'm on my feet. You are called to order, and I am warning you now. Not another word.

Mr PICTON: Thank you, Deputy Speaker, for your protection. I would like to see the member for Hartley swear in blood that in, say, 16, 20 or 24 years' time when he is in government he will bring forward this bill and will be completely committed to it then as he is now. In fact, I would like to see the Leader of the Opposition also say that this is Liberal Party policy and that, should he become Premier in 16 or 20 years' time, he will bring in this bill as his first act of office. I do not think that will happen. I do not think so. I think they will be very careful about what they saying about this bill because they do not want to see it if they are ever to be in government.

Debate adjourned on motion of Mr Gee.