Bills

Freedom of Information (Miscellaneous) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 8.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 17 [Mullighan–1]—

Page 8, lines 5 and 6 [clause 8, inserted section 8B(1)]—Delete 'proactive disclosure principles' and substitute 'principles and objects of this Act and with the minimum requirements specified in section 8C'

Amendment No. 17 is the second of three amendments which seeks to introduce into the Freedom of Information Act a detailed disclosure regime. As we have discussed previously in considering the Attorney's bill and earlier amendments, the bill from the Attorney merely seeks to require that the Premier of the day cause a proactive disclosure policy to be in place and that the details of that policy, whatever they may be, will determine what information needs to be proactively disclosed by those agencies.

Certainly, as we have seen earlier from the member for Frome and those who supported his amendment, there is a desire that there be more prescriptive requirements with regard to a proactive disclosure regime. I am indebted to honourable member of the other place Mark Parnell because his strident advocacy over the years for reform of freedom of information laws has informed what is to follow this amendment in amendment No. 18 with the minimum requirements of a proactive disclosure regime. However, some say the anticipation in life is better than the moment, so in order to drag that anticipation out I will focus my remarks on the amendment at hand rather than amendment No. 18 which follows.

The amendment at hand merely seeks to delete the words 'proactive disclosure principles' and substitute instead 'principles and objects of this Act with the minimum requirements in section 8C'. There are two things proposed there: one, of course, in the second part of that is foreshadowing the new 8C, which I will be moving as amendment No. 18. But it also goes back to something we discussed earlier in the course of considering this bill, and that is that the proactive disclosure principles are important enough that they should find themselves in the part of the Freedom of Information Act which relates to the objects and principles of the act, not merely just banged in as one of many clauses after the principles and objects of the act.

We think it should be a key part of the act. We think the proactive disclosure regime should be given full import and it be made clear that the act seeks to ensure not only that the public has a right to access government documents but also that governments are in addition required to publish certain information from time to time.

Of course, there is a tremendous benefit in this. It means that for those people who take an interest in the regular activities of government, even the regular activities of ministers, their staff, chief executives, the executive cohorts of government agencies and also, as we have only recently been discussing, local government entities as well, rather than require the public to submit applications under the Freedom of Information Act and chance their arm at seeing whether documents will be released to satisfy their curiosity, government agencies and other authorities should just be required to publish this information.

Amendment No 17 seeks to set up that detailed disclosure regime. It gives it a greater weight and greater standing in the act by making sure that proactive disclosure finds its voice in the objects and principles of the act, and I encourage all members to support this amendment in my name.

The CHAIR: So this, member for Lee, becomes a further amendment to the amendment?

The Hon. V.A. CHAPMAN: I indicate that the government opposes this amendment to the amendment for the reasons outlined in relation to amendment No 16 in respect of the member for Lee's previous schedule.

Amendment to the amendment negatived.

New section 8C.

The Hon. S.C. MULLIGHAN: I hope your anticipation has reached the crescendo I was hoping for when it comes to amendment No. 18. It seeks to insert a new section 8C and these are the minimum requirements of a proactive disclosure regime. I said in my earlier remarks that I owe a debt here to the honourable member of the other place, Mark Parnell, because he has proposed previously many of these minimum requirements.

What we thought we would do to assist the committee is capture all those minima and include them in this amendment and if any of it offends the Attorney, rather than just saying a blanket no, she could pluck out the eyes which offend her most and we would be left with a robust proactive disclosure regime. I suspect that may not eventuate but one lives in hope. Until that hope is either founded or extinguished, I move the amendment and will read in the minimum requirements:

Amendment No 18 [Mullighan–1]—

Page 8, after line 12 [clause 8]—After inserted section 8B insert:

8C—Minimum requirements

(1) Subject to the regulations, the proactive disclosure policy must require each agency to publish the following information relating to the agency at a frequency specified in the policy (but at least annually):

(a) details of credit card expenditure for all cards held by the principal officer of the agency and, in the case of an agency constituted of a minister, all ministerial staff;

(b) details of overseas travel arrangements for the principal officer of the agency (including the number of travellers, the destination, the reason for travel, the outcome of travel, the cost (excluding salary) of travel paid for out of the agency budget);

(c) if the agency includes any public sector employees (within the meaning of the Public Sector Act 2009)—details of overseas travel arrangements for those employees (including the number of travellers, the destination, the reason for travel and the total cost (excluding salary) of travel paid for out of the agency budget);

(d) details of domestic (including regional) travel arrangements of the principal officer, where costs are incurred by the agency (including the number of travellers, the destination, the reason for travel, the total cost (excluding salary and vehicles included within employment package arrangements) paid for out of the agency budget);

(e) government expenditure relating to the mobile phone usage of the principal officer of the agency and, in the case of an agency constituted of a minister, all ministerial staff (except where release of information would breach contractual obligations);

(f) government expenditure (including but not limited to food and beverage expenditure) on functions or events hosted or attended by the principal officer of the agency or, in the case of an agency constituted of a minister, ministerial staff (including a description of the function or event, the location and the items of expenditure);

(g) details of consultants and contractors engaged and the cost to the agency;

(h) the gift register of the agency;

(i) details of procurement practices of the agency;

(j) government expenditure relating to the capital works projects of the agency;

(k) details of the agency's staff (including staffing costs, the number and type of staff by classification and individual reference to the title, level and area of responsibility of each executive of the agency);

(l) de-identified data sets that are used for existing reporting and monitoring of agency activity and performance;

(m) any other information prescribed by regulation.

(2) Subject to the regulations, the proactive disclosure policy must require each agency to publish the following information in a quarterly report relating to the agency's performance of functions under this act during the preceding quarter:

(a) the number of applications for access to documents received;

(b) the number of extensions of time requested by the agency under section 14A;

(c) the number of extensions of time granted to the agency under section 14A;

(d) the number of extensions of time that occurred with the agreement of the applicant (both under section 14A and otherwise);

(e) the number of applications for access to documents determined by the agency including the number where—

(i) access was granted to all in scope documents in full;

(ii) access was refused to some in scope documents or access was provided to an in scope document with some material removed or redacted;

(iii) access to all documents was refused;

(iv) the application was determined within the time limit required by section 14 (i.e. without any extension);

(v) the application was determined within an extended time limit (under section 14A or with the consent of the applicant);

(vi) the agency was taken to have determined the application under section 19(2);

(f) the number of internal reviews completed including—

(i) internal reviews resulting in changes to the original determination; and

(ii) internal reviews resulting in no changes to the original determination;

(g) the number of external reviews completed in relation to determinations of the agency including—

(i) external reviews resulting in changes to the determination the subject of the review; and

(ii) external reviews resulting in no changes to the determination the subject of the review;

(h) the number and classification of staff dedicated to exercising functions under this act (as accredited FOI officers or otherwise).

(3) The minister must cause a report to be published (on at least an annual basis) providing information compiled from the quarterly reports published by agencies under subsection (2) in a way that enables the performance of different agencies to be compared.

As you will see, the bare minimum of reporting is required under those minimum requirements. The Attorney would have you know that this is all unnecessary because there is an annual report about FOI performance and a lot of this information is captured in that annual report about an agency's performance under FOI. In that regard, the Attorney would have you believe that it would duplicate that report. I argue to the contrary.

The reason is—and I will give you some real-life examples here—that in my experience, particularly over the last 2½ years, in making applications to the Treasurer, not only do we have the egregious situation where the principal officer of the agency (which happens to be the minister, the Treasurer) is responding to those but he is choosing to give himself vast amounts of additional time to respond to these applications, to the point where I am having to go through the process of taking that determination, that is, the Treasurer's granting of extra time, to external review to see if that is reasonable. I stand in hope that the Ombudsman will try to stop this practice by the Treasurer because, believe you me, it is nothing more than an attempt to frustrate my legal right to access documents under the act.

Having this behaviour reported on quarterly, as I was saying in my earlier remarks, means sometimes the knowledge that this transparency will be required about these activities actually shapes the judgement about whether these activities are undertaken in the first place. I do not think people would look very favourably on a minister who was not making freedom of information determinations, releasing documents—some documents or no documents, whatever the case may be—except to say, 'I don't have the time or the resources to deal with your FOI application, so I am going to do it in another six or nine months' time.' That is not transparency. That is not the openness and accountability that the Deputy Premier and her colleagues promised South Australians at the last election. I think having that level of public reporting would greatly enhance the freedom of information regime we have.

Those comments relate to the second part of the proactive disclosure regime that I spoke about. The first part sought to capture that information that the media and other people, including members of parliament, seek to retrieve from government agencies, including ministers: details of ministerial travel, details of ministerial spending, details of ministerial or chief executive credit card use and details of other expenses that are incurred by those categories of people I have just mentioned with regard to, for example, mobile phone use and so on.

Requiring that that information is published just as a matter of course—that when, for example, the monthly mobile phone bill goes in for reimbursement, it is going to find its way to publication by the agency—obviates a whole ream of freedom of information applications that would otherwise be made. There is nothing wrong with this regime. Members of parliament, of course, are subject to exactly that regime. The amount of money that we spend, for example, in our global allowances is reported on very frequently.

This is something that has evolved over the last 10 to 15 years. Perhaps the Attorney and the member for West Torrens could speak with a bit more detail about this, but that level of proactive disclosure did not occur many years ago when those two members first came into this parliament. As community standards and expectations have grown and evolved around access to information, so has the level of disclosure and reporting. I do not see that there is anything wrong with ensuring that a member of parliament's disclosure—

The CHAIR: Member for Lee, there is a point of order from the Attorney.

The Hon. V.A. CHAPMAN: I was hoping to get to a point before the member for Lee starts his litany of examples that he wants to outline in his grievance against the Treasurer, so at this point I will move that the committee report progress.

The CHAIR: The Attorney has moved—

The Hon. V.A. CHAPMAN: He can extend the list if he wants to.

The CHAIR: —and I will accept the motion that the committee report progress.

Progress reported; committee to sit again.

At 17:38 the house adjourned until Tuesday 10 November 2020 at 11:00.