Freedom of Information (Miscellaneous) Amendment Bill

Committee Stage

In committee.

(Continued from 24 September 2020.)

Clause 8.

Mr PICTON: I draw your attention to the state of the house, sir.

A quorum having been formed:

The CHAIR: Attorney, we are now at the point where you will move amendment No. 1 on schedule 4 standing in your name. It will be an amendment to clause 8.

The Hon. V.A. CHAPMAN: Yes, I move:

Amendment No 1 [AG–2]—

Page 8, lines 4 to 12 [clause 8, inserted section 8B]—Delete inserted section 8B and substitute:

8B—Proactive disclosure policies

The regulations may, consistently with the proactive disclosure principles, prescribe 1 or more proactive disclosure policies requiring specified agencies, or agencies of a specified class, to publish information relating to, or held by, them.

The Hon. G.G. BROCK: A point of clarification: is this amendment from the Attorney's 35(4)?

The CHAIR: Yes.

The Hon. G.G. BROCK: Well, I have No. 35(3). This is clause 8, amendment No. 1: 8B—Proactive disclosure policies. Is this the one we are on?

The CHAIR: So you have an amendment in your name as well?

The Hon. G.G. BROCK: Yes, Mr Chairman. Mine was submitted on 2 July and the Attorney's was filed on 20 July. It is similar, but it is page 8, clause 8, lines 4 to 12, but she has two of my suggested amendments excluded from her amendments.

The Hon. V.A. CHAPMAN: I am happy with that. I will just resume my copy of it, but I am happy for amendment No. 1 of the member for Frome on his schedule—again, I do not have a No. 1. Is your amendment 35(1)?

The CHAIR: While you are talking amongst yourselves, this is what I think we will do. We will run with the Attorney's amendment. We will move that. Member for Frome, before you go, what we will do is go with the Attorney's amendment, and if that passes you can then move to amend that amendment.

The Hon. G.G. BROCK: When you file it, I would have thought it takes precedence. My amendment is 35(3) of bill No. 35. The Attorney's is 35(4); it is exactly the same issue. It is about proactive disclosure policies, 8B. I have 1, 2, 3 and 4 sections there. The Attorney has hers, but there is just one section there. Her amendment is to try to get this in front of mine with 2, 3 and 4 excluded, and then I have to try to add mine in.

The Hon. V.A. CHAPMAN: Not for the reasons the member for Frome has said, nevertheless, I agree that amendment No. 1 as scheduled in the member for Frome's document 35(3) should precede the first amendment in my name as Attorney-General on 35(4). I am happy for amendment No. 1—not the rest—standing in the name of the member for Frome, filed on 2 July 2020, to be put first.

The CHAIR: It is possible and feasible, I am advised. What you will have to do first, Attorney, is withdraw the amendment you have moved.

The Hon. V.A. CHAPMAN: I seek leave to withdraw my motion for amendment No. 1 standing in my name on schedule 35(4).

Leave granted; amendment withdrawn.

The CHAIR: Thank you. We will go to the member for Frome. Apologies for any confusion.

The Hon. G.G. BROCK: It is coincidental that it is the same clause 8, etc., but just excluding a couple of parts. I move:

Amendment No 1 [Brock–1]—

Page 8, lines 4 to 12 [clause 8, inserted section 8B]—Delete inserted section 8B and substitute:

8B—Proactive disclosure policies

(1) The regulations may, consistently with the proactive disclosure principles, prescribe 1 or more proactive disclosure policies requiring specified agencies, or agencies of a specified class, to publish information relating to, or held by, them (other than personal information of a person).

(2) Regulations may not be made under this section in relation to any local government agencies unless the Minister—

(a) has undertaken consultation on the proposed regulations with the Local Government Association; and

(b) has certified that the Minister is satisfied that the proposed regulations, as far as is practicable, avoid duplication with other statutory duties imposed on the local government agencies and do not impose unnecessary or unreasonable costs on the local government agencies.

(3) A copy of the Minister's certificate under subsection (2)(b) must be provided to the Legislative Review Committee of the Parliament as soon as practicable after the making of the regulations.

(4) In this section—

local government agency means a council or an assessment panel under the Planning, Development and Infrastructure Act 2016.

Like other members here, I fully support the need for open, transparent government based upon proactive disclosure to the fullest practical extent of public expenditure. I am glad to see that the government is proceeding to entrench this policy into the legislative framework. However, concerns have been raised with me about the precise manner in which it has been done.

Under new section 8B, to be inserted into the Freedom of Information Act by this bill, the Premier is empowered to prepare and publish a proactive disclosure policy consistent with the proactive disclosure principles set out in new section 8A, which have a direct effect on agencies within the meaning of the act.

To remind members, under section 3 of the Freedom of Information Act an agency is defined to include a local council. The government's good intentions are not doubted in moving these provisions which reflect current public sector practice. However, extending the proactive disclosure regime to local government sets up a conundrum. It puts local councils in a situation where they are subject to the direction of the Premier despite the reality that they exist beyond the normal bounds of the public sector as conventionally understood.

Indeed, I note the general view that councils are not part of the Crown in right of the state. Section 136 of the Local Government Act, for example, makes it clear the Crown is not liable for any debts or liabilities of a council. There are similar bodies which, through established or given powers by statute, are excluded from being regarded as part of the Crown. Universities such as Torrens, Flinders and Adelaide, the Uniting Church Property Trust, the Stadium Management Authority and the National Trust are some examples.

It is not suggested that it is inappropriate for councils to be subject to a proactive disclosure regime, but I do suggest that councils are in quite a different category to other public sector agencies, such as the mere direction by the Premier, which is not disallowable by this parliament and is sufficient basis to bind them. However, it may be a direction from the Premier is not enough in any event.

Proactive disclosure should be entrenched in law, a breach should be a breach of the law and parliament should have a direct stake in scrutinising the proactive disclosure policy when it is made, when it is updated and when it is reviewed. For these reasons, this amendment changes the nature of the proactive disclosure policy. Instead of a premier's direction, the policy is a regulation made by the Governor, subject to parliamentary scrutiny and more amenable to binding non-public sector entities such as local councils.

Additionally, the amendment includes a requirement for the responsible minister to consult with the Local Government Association and have regard to the need to avoid duplication of council obligations under other laws prior to a regulation being made which would then impact upon council proactive disclosure obligations.

This amendment comes after discussions with the Local Government Association, who raised this issue with myself and my colleagues of the crossbench, as well as discussions with individual councils and my own experiences as a former local government minister and a mayor. I commend this amendment to the house and ask that it be dealt with. I think it is common sense to be able to have sections 8B(1), (2), (3) and (4) as part of the process.

The Hon. V.A. CHAPMAN: I indicate that the government opposes the amendment in its current form and I move an amendment to the amendment:

Delete all words after 'them' in new subsection (1)

The effect of the member for Frome's amendment is to put the details of the proactive disclosure requirements to be imposed by a new section 8B into regulations and legislate a requirement for the minister—in this case it is me as Attorney-General—to consult with the Local Government Association before imposing proactive disclosure requirements on councils.

I would then be required to certify that the regulations do not duplicate other statutory disclosure requirements imposed on councils and 'do not impose unnecessary or unreasonable costs on' councils. I have previously written to the LGA to assure them that it is intended to consult with councils in developing the proactive disclosure policy and to avoid duplication with other disclosure obligations imposed on councils, including under the forthcoming local council reforms, which are still actually in the parliament but our house has already dealt with them.

It is recognised that, for some small regional councils that may receive very few FOI applications, the proactive disclosure requirements may need to be tailored to ensure the impost on them does not exceed the public benefits. I am concerned that a requirement to certify that disclosure requirements 'do not impose unnecessary or unreasonable costs' on councils is problematic and unworkable.

'Unnecessary' and 'unreasonable' are imprecise terms and any such certification is prone to dispute and challenge. However, I do acknowledge the interest in having these proactive disclosure requirements amenable to scrutiny by parliament by prescribing them in regulations. Accordingly, I will be moving to amend the member's amendment to the bill in the form I have indicated to replace the gazetted policy approach with the prescription by regulation.

In indicating this position, I thank the member for Frome for having the matter brought to my specific attention. I appreciate that it had been raised by the LGA. Since that time, I now have a new job as the Minister for Local Government, so I get fully refreshed of these matters. I suppose it is a process where I would end up advising myself as Attorney-General; nevertheless, I am fully informed as to the perspective from the size of the parties.

I thank the member for Frome for bringing their potential plight to my attention. That is the whole reason why we have the opportunity in committee to identify where there might be improvement. Frequently, that arises from the direct implication or impact it is going to have on the very bodies we are seeking to regulate. It is an important one. The nature of the remedy offered by the member for Frome in its fulsome application is not agreed to. For the reasons I have outlined, we will be seeking to delete the words from the word 'them' as I have indicated.

The Hon. S.C. MULLIGHAN: I support the amendment in its original form from the member for Frome and hence not what the Attorney proposes: essentially, deleting what would be a reasonable regime to ensure that those concerns the Attorney raised in earlier discussion on my amendment No. 16 are not realised.

When we were discussing amendment No. 16, the Attorney said that the burdens which the proactive disclosure regime, at least insofar as the amendments that I am proposing—amendments Nos. 16, 17 and 18, with regard to 8B and a new 8C, which I am seeking to insert—may be okay for government agencies but not necessarily for councils or, at least, for smaller councils, and that it is excessively onerous and burdensome on those public authorities.

The member for Frome, in his amendment, is basically charting a course through this. He is aligning his concerns with those of the opposition that there are more specific and greater proactive disclosure requirements, which are set out in the member for Frome's sense, via regulation. In my subsequent amendments, I would prefer it to be in legislation; nonetheless, there are specified proactive disclosure requirements on these entities.

In addition, if there is any concern about duplication between what an amended Freedom of Information Act provides and other prescriptions on local government authorities, then that is able to be mediated in a process whereby the responsible minister would consult with local government before the making of those regulations and any duplication is removed. That is entirely reasonable.

This is not something that is going to happen on a monthly or even an annual basis. These regulations, should they be made in the way in which the member for Frome envisages, will hopefully be made once. The mediation that would need to occur between the minister and any councils or the Local Government Association that might seek to change or amend some of those regulations so as not to see any of that duplication would only need to happen once.

That is not onerous; that is just good governance. That is just making sure that, by dialling this up to make sure that there is more disclosure from councils—and we see regular media reports on concerns about council spending and also council revenue-raising to facilitate that spending—that information is published on a very regular basis. Of course, the benefit of this transparency is that it ensures that there are second thoughts about whether to incur that expenditure in the first place. Is that not the whole benefit of a freedom of information regime?

If there are to be activities of government, whether it is local or state, which by their own nature incur the making of documents that can be released to the public, then those activities are carefully considered before they are undertaken, that the threat of exposure through a release of documents from a freedom of information request—the benefit of transparency, if I could perhaps refer to that threat of exposure a bit more generously—is that we try to ensure that activities that do not meet public expectations are minimised.

I support what the member for Frome is doing. I do not believe that what the Deputy Premier seeks to do by eviscerating his amendment is necessary. In fact, I think it would be a good compromise between what the house is trying to achieve here in ensuring that there is a greater proactive disclosure regime. I will be supporting the member for Frome and the opposition will be opposing the Deputy Premier.

The committee divided on the amendment to the amendment:

Ayes 21

Noes 21

Majority 0

The CHAIR: Here we go again. There being 21 ayes and 21 noes, the vote is tied. I give my casting vote with the ayes.

Amendment to the amendment thus carried.

Progress reported; committee to sit again.