Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

Mr TARZIA (Hartley) (11:00): I move:

That this bill be now read a second time.

I rise today to speak to the Freedom of Information (Miscellaneous) Amendment Bill tabled by the Hon. Mark Parnell in the other place. The Liberal Party supports this bill and strongly agrees that there is an urgent need, as there has been for some time, for a more transparent government in this state. This bill aims, through the polishing of the Freedom of Information Act, to achieve that.

In the past, I have introduced a bill similar but not identical to the one before us today. Since that time, I note that the level of secrecy within this government has gone far beyond what anyone could imagine, reaching levels of absurdity. There has been secrecy discussed in governments throughout history.

Members interjecting:

The DEPUTY SPEAKER: I am on my feet; sit down. I am on my feet, member for Chaffey. It is pesky, I know, but that means you have to listen. It is Thursday, and it is only 11 o'clock. The member for Hartley has a bill before the house, and he is entitled to the respect that all members enjoy when they bring a private member's bill to the house. I would be horrified if anybody really meant to disrupt his speech, which no-one can hear with the amount of noise that has been going on in the chamber. Member for Hartley.

Mr TARZIA: Thank you, Deputy Speaker. As I was alluding to, secrecy has been a topic amongst governments and they have protected many things over time for fear of embarrassment. Let's go through some examples and then relate it to the present era. There was Churchill and UFOs, the CIA with mind-control experiments, Area 51, UFOs in the USSR, the Loch Ness monster, the CIA schemes to kill Castro, Julia Child's intelligence, the Grand Central Terminal secret rooms, listening in on Lenin and, of course, some might even remember Potemkin villages. Then, of course, you have Alinta this week. That letter from Alinta was very interesting.

Let's turn back now to early 2014 in the wake of the state election, when the then CEO of the Essential Services Commission of South Australia wrote a scathing letter to the chairman of ESCOSA. We remember what that said, and it was clear from those remarks and other remarks around that subject that there is an ongoing level of political interference where there should be neutrality and a hidden agenda by certain senior bureaucrats and ministers who govern the state. The public deserves more than this and deserves to know what is going on.

Another example of the Weatherill Labor government's secrecy is its handling of the infamous Gillman land deal. A multimillion dollar land deal involving the government and private developers was approved by cabinet against the advice that it should go to public tender. The ICAC has made a ruling since then involving serious maladministration, and this has been mired in controversy since the government ignored the advice in 2013 to sell the site under an open tender process.

The state government has, we know, now banned ICAC access to government documents, various documents, and that, too, has been in the media recently. A recent report by Today Tonight also highlighted the secrecy of the Labor government.

There being a disturbance in the gallery:

The DEPUTY SPEAKER: The gentleman in the gallery needs to sit down, please.

Mr TARZIA: It actually revealed to viewers that ICAC's access to cabinet documents has been banned in some instances. To reiterate, the government has banned the ICAC from accessing certain documents. I think it is pretty clear that this policy could open the door to corruption moving forward. We go on: just a few months ago, Monash University's study into the Australian Journalism Review acknowledged that our freedom of information laws were the worst in the country and found that the system was designed to block, delay and obfuscate.

In an audit of state government agencies' implementation of the FOI Act by the Ombudsman in 2014, an analysis of the practices of 12 government agencies took place assessing the implementation of the act for financial year 2012-13. In his executive summary of the report, the Ombudsman described the state government's recent policy initiatives on proactive release of information as 'timely and relevant to the digital age'.

However, he actually pointed out a disconnect between those initiatives and the act, describing the agencies' approach to the information disclosure under the act as outdated and its processes belonging to pre-electronic times, which is a long time ago. He goes on to add that:

…the agencies' implementation of the act is wanting and demonstrates a lack of understanding or commitment to the democratic principles which underpin the act…

The bill before the chamber today seeks to implement various recommendations in the Ombudsman's report and allow for a transition to a more transparent government.

I would like to expand on these recommendations and the main features of the bill in taking these into account. The first change relates to the Ombudsman's first recommendation. The amendment that this bill seeks to introduce is to include a reference to the principles of representative democracy in the objects section of the act and to acknowledge that documents held by government are a public resource to be held on behalf of the public and managed for public purposes. The second amendment relates to the Ombudsman's recommendation No. 24, which states:

Following Commonwealth and interstate FOI legislation, the Act should give express guidance on what factors should and should not be taken into account in determining whether disclosure of documents would, on balance, be contrary to the public interest.

This amendment aims to guide FOI officers in assessing what the public interest is, through description of what factors should and should not be considered when determining the public interest. Another amendment in the bill relates to recommendation No. 8 of the Ombudsman's audit, which states:

The Act should require agencies to promptly acknowledge receipt of an access application and an application for internal review. Both acknowledgements should inform the applicant of the relevant review and appeal rights and timelines, particularly in the event of the agency failing to make an active determination within the statutory time frames.

The Ombudsman goes on to add: 'In the meantime, the agencies should adopt this practice as a matter of policy.' By putting this acknowledgement process into legislation, it is hoped that applicants will be better informed about their review and appeal rights from the outset. The Ombudsman takes aim at government tardiness in recommendation No. 10, which states:

Agencies must refund the fees to an applicant if they exceed the initial determination or internal review time limitations under the Act.

I believe that this measure would go a long way to bringing the agencies to deal with the FOI applications in a timely manner. The Ombudsman's 10^th recommendation further states:

Agencies have a discretion to impose a ceiling of 40 hours for processing access applications following consultation with the applicant.

Unfortunately, as we know, it is all too common for agencies to claim in their responses that it would involve too many resources, and that these would be used up by the agency to have a look for documents that applicants are attempting to have officially released.

Additionally, responses such as, 'We can't find the document,' or 'It doesn't exist,' are commonly received. What the Ombudsman said about documents that cannot be found or do not exist, under recommendation 13, is also stipulated. At present, the act does not mention what is required when agencies are unable to locate documents. The Ombudsman notes:

Agencies appear to struggle with offering adequate explanations to applicants when they cannot locate documents.

In other jurisdictions—the commonwealth, for example—legislation exists that points out that, should documents not be found or not exist, then this is interpreted as a determination to refuse access. Reasonably, the Ombudsman recommends that South Australia include similar provisions, both reviewable and appealable, in the act.

Recommendation 19 also relates to the refusal of access. In a list of 19 clauses and 50 subclauses and paragraphs of exemptions in the act, the Ombudsman found that these were unclear and open to misuse, with a tendency to overwhelm the purpose of the act. The Ombudsman suggested that this list encouraged FOI officers to take the easy road and pick the exemption route.

With relation to notices of determination, the next amendment based on the Ombudsman's 25^th recommendation strongly relates to the key problem of the executive arm of government's role in the freedom of information system, with evidence in the Ombudsman's audit strongly suggesting that ministerial or political influence is brought to bear on agencies' FOI officers and that FOI officers have been pressured, in many instances, to change the determination instances. The amendment relating to this recommendation would seek to eliminate political interference—because we know that it does occur—and reduce the delays that are incurred when FOI officers await ministerial direction regarding applications. The Ombudsman actually noted:

I have come across an instance in an external review in which an agency released information the subject of an access application to a media outlet, prior to releasing the information to the applicant, an Opposition Member Of Parliament. Evidence given to the audit suggests that this is not uncommon.

Why would they go to a member of the media before a member of the opposition? That is assuming, of course, that the member of the opposition lodged the FOI. A member of the government might FOI themselves; I know that that has been done many times in the past. Unfortunately, as currently would seem to be the case, if something embarrassing is about to be lawfully provided to the opposition or to a crossbench party under the Freedom of Information Act, ministers are directed to give it to the media first. This is not clearly not the intention of the act and the FOI process.

In other jurisdictions such as Tasmania, for example, the freedom of information legislation ensures the independence of agency decision-makers and that they are free from inappropriate influence. It is the Ombudsman's view that, if an agency's determination is directed by its minister, it should be clearly stated in the determination. This amendment goes some way to address this issue by requiring that, if a determination was at the direction of another person including a minister, the determination must include the name of that person and the extent of the direction given to the FOI officer.

Moving on to one of the final legislation policy measures of the bill, I refer to the Ombudsman's 11^th recommendation relating to external review:

The act should allow an external review authority to remit deemed or inadequate determinations back to the agency for consideration.

The final amendment I would like to touch on relates to the improper direction or influence over FOI officers by others. The Ombudsman's recommendation No. 26 states:

The Act should create offences of improperly directing or influencing a decision or determination made under the Act.

A uniform protocol should be created for use across all agencies which codifies the requirements for accountable and transparent communication between ministerial offices and agency FOI officers in relation to access applications under the Act.

This amendment makes improper direction or influence—which we have seen does occur—an offence with a penalty of a fine of up to $5,000. It is a modest fine, but I think that that would make an impact. As it stands, the act does not contain any prohibition about improper direction of, or influence on, an accredited FOI officer or other FOI staff.

It is important that we remember that, in considering these changes, as the Ombudsman points out in the executive summary of his report, government-held information is a public resource, just like that letter from Alinta was a public resource. The public's right to access the information is central to the functioning of a democracy. The opposition welcomes these reforms and this bill and will continue to support the measures to increase the transparency of government and keep it accountable and honest, and free of political and ministerial interference. I commend this bill to the house.

Mr PICTON (Kaurna) (11:13): Well, well, well, here we have another bill being presented to the parliament from the member for Hartley regarding the Freedom of Information Act.

An honourable member: Come on, Brains.

The DEPUTY SPEAKER: Order!

Mr PICTON: This is, of course, a bill that he is bringing to the house on behalf of the Hon. Mark Parnell from the other place. I think it is important that we take the time to mark this in the calendar so that, should the member for Hartley ever be in government (and I hope that that is a very long time in the future), we can go back and have a look at all these speeches he has given about how the Freedom of Information Act should be reformed to give people access to anything they want, anytime they want, with no fees and no repercussions, irrespective of the impact upon agencies because, if he were to be in government, he might no longer support the propositions that he has put forward to the house today.

We have seen this in the federal government recently. A Liberal opposition in Canberra gave similar speeches to those of the member for Hartley, in which people such as Senator the Hon. George Brandis would say that freedom of information needs to be opened up and supported and 'Let a thousand flowers bloom in freedom of information.' Then he comes into government and becomes the minister responsible for freedom of information, and suddenly the shutters go down. They abolish the freedom of information officers who worked to provide independent reviews of government decisions through the information commissioner, they started refusing things that had previously been granted for many years.

We saw Attorney-General Brandis recently losing a case in the Federal Court where he refused access to his diary. A two-year court process had to be gone through because he refused to provide access, and I think that inevitably revealed that he did not meet with any of the community legal providers that he said he did before he slashed their funding. He fought for two years to stop that from happening.

If the Liberal Party in South Australia were ever to form government, let us actually see them put their policies up. I want to see their commitment that they would introduce this bill if they were in government, but I do not think we will see that. However, this is a government that does support open and transparent access to information, and we have done that right from the beginning of when we came into government.

We reformed this act quite significantly. People in South Australia might remember that under the Olsen-Brown government it was very hard to get access to any information in South Australia. The Freedom of Information Act was a complete logjam, everything was deemed refused. We reformed it quite significantly upon coming into government, and there is now a lot more access to information. In fact, access for members of parliament is improved; they get fee waivers for their applications, and we know that members opposite use them very regularly.

We know that because—and they like to talk about how there are too many public servants—we have a whole hunk of the Public Service just dealing with their freedom of information requests, just dealing with the paperwork, particularly from people like the Hon. Rob Lucas and the member for Schubert. Pile after pile of fishing expeditions from the opposition, fee free, are being sent in trying to find things. Although we would like them to be doing other things, they are there just dealing with Liberal Party freedom of information requests, so I think there is a fair degree of context that needs to be provided to this bill being brought before the house today.

There is some detail I would like to go through. Some of the facts being provided from the department as well as the Attorney need to be looked at, this bill, in particular, and some of the reasons why we do not believe it should be supported. As was mentioned, it was introduced by the Hon. Mark Parnell in March 2015 and it makes a number of miscellaneous amendments to the Freedom of Information Act. It is also identical to a bill he introduced in November 2014. The government's advice is that this bill would have adverse impacts on agency operations and staff, the commissioner and other elements of the government. There are numerous issues with how the bill would operate in practice as well as legal issues with some provisions. Some of the government's main concerns with the bill follow.

In regard to clause 4, apart from supposedly offering guidance to agencies, it is not clear what clause 4 of the bill would actually achieve. The changes would not have much practical effect, given that participation already covers activities such as commenting on and reviewing the making of laws and policies. It is uncertain whether the changes would enhance the openness any more than the current objects do. In addition, some documents held by the government are not necessarily a public resource that should be made available to the public.

For instance, medical records held by hospitals are not primarily a public resource, although they may be used for public policy purposes. Victim impact statements are not a public resource, and so on. Documents held by the government may be used for public purposes, but this does not mean that the documents themselves are always made available to the public for very good privacy, confidentiality and public good reasoning. Clause 5 of the bill inserts factors that should and should not be taken into account when determining whether the disclosure of documents would, on balance, be contrary to the public interest.

The bill lists 21 factors that must be taken into account when making an assessment about the public interest and then lists four factors that must not be taken into account. I think this is something that those opposite and the Hon. Mark Parnell should be very careful about, because our advice is that the list of what should be taken into account is very long and unwieldy and is likely to cause confusion about how each fact is to be interpreted. The list would create an exhaustive set of circumstances that would act to redefine the term 'public interest' and prevent the holistic common law definition from being applied.

It may in fact be that the list achieves the exact opposite of what the honourable member wishes to do, in that it would restrict the definition of public interest rather than allow a broader view under the common law. Determining whether the disclosure is contrary to the public interest could become nothing more than a tick the box exercise, so we need to be very careful about the clauses that are being put by those opposite.

Regarding clause 7, it is important to note that agencies must manage their FOI responsibilities within a tight fiscal budgetary climate. Requiring agencies to refund fees will impose a budgetary burden that will most likely exacerbate the delay in terms of people getting access to the information they need. These clauses could be in fact impossible to operate in practice. It would not be possible to separate out what part of the fee was attributable to the granting of access to the document. For example, if there are eight documents and all are refused but the Ombudsman determines that access be granted to one document, it would be very difficult to ascertain how much to remit, not to mention the huge administrative burden that this would place on the agencies.

Currently, the FOI Act allows an agency to refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved would substantially and unreasonably divert the agency's resources from their use by the agency in the exercise of their functions. Clause 8 of the bill inserts a new threshold in terms of what is to be considered substantial and unreasonable diversion of the agency resources. The threshold imposed is that the application is dealt with by one person and is likely to take more than 40 hours.

Imposing such a threshold is very arbitrary. It does not take into account the circumstances of a particular agency at the time. Also, it is not clear how the limit of 40 hours was determined. The clause takes no account of the size of the agency and, as such, our advice is that it is very poor public policy. It is simply not possible to have a blanket threshold on what constitutes substantial and unreasonable diversion of an agency's resources.

If you look at clause 10 of the bill, which directs an agency to act consistently with the objects of the FOI Act and the principles of the administration of the act when considering whether to refuse access to a document, our advice is that the proposed subclause is ineffectual, because it is already a requirement of the principles of the act that they be observed and adhered to.

If you look at clause 11 regarding determinations that would be made, our advice is that those determinations under direction are extremely rare. Where a principal officer turns his or her mind to an application at its initial stage, he or she is more likely to simply make the determination personally than to direct the FOI officer. Section 29(6) of the act clearly contemplates that a principal officer is permitted to make a determination. The government considers reform in this area to be unnecessary given the rarity of this issue.

A lot of these details of the act will make substantial difficulties in terms of the administration of the act, and in some cases our advice would be that it would in fact deliver the opposite of what is intended. The government agrees that public access to information is an important bedrock of democracy, and we have done a lot in our time to increase the access to public information, however, our advice is that the bill does little to enhance public access and, as such, the government opposes it.

Mr BELL (Mount Gambier) (11:23): I rise to support the bill and commend the member for Hartley for bringing it to our joint party room. What we have seen, going back five or six years, is a newly elected premier espousing the virtues of transparency and wanting to run a government in a different way to the previous premier. Yet, fast-forward to where we are now, and we have one of the most secretive state governments in this country, where the Public Service has been politicised to a point that it is frightened to give frank and fearless advice, to the point where local members are having family members come and talk to them about issues in our Public Service.

I will give you the example of the Mount Gambier hospital. Family members were coming to me and talking about severe understaffing and severe lack of supervision, because their daughter or their son was reporting these issues to them, but as soon as they had come and spoken to me they feared being victimised or at worst sacked. We have a situation at the moment where freedom of information is vitally important to the running of this state, yet there can be onerous financial penalties for an individual wanting to access information.

I will give the example of Nick O'Connor, who is very interested in jumps racing. It cost him $5,000 out of his own pocket to gain the submissions, after nine months of FOI-ing the minister's office, on what submissions had led to the minister wanting to ban jumps racing. Again, he was a victim of circumstance. Had Nick known how to navigate the system a little better, it would not have cost him that $5,000. It took nine months and $5,000, and what he found was a pile of generic emails, predominantly sent from New South Wales, informing the minister's opinion.

I do believe that these reforms are needed. I specifically draw the house's attention to improper influence from ministers and that a $5,000 penalty is insignificant in today's world. I would support the penalty being raised to $20,000 for improper interference so that we can have a freedom of information system that is transparent and of value to the people of South Australia. With those words, I will conclude.

Mr TARZIA (Hartley) (11:26): I once again thank the Hon. Mr Parnell from the other place. It is disappointing to see that the government will not be supporting this bill, but I think it is a very overdue bill. We have seen time and time again how, no matter what independent commission report makes these remarks, the government, in its absolute arrogance, is not willing to listen. I have no doubt that the people of South Australia will judge them on this issue, as well as many others into the future. I commend the bill to the house.

Ayes 19

Noes 23

Majority 4