Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 July 2018.)

The Hon. C. BONAROS (17:21): I rise to speak in support of the bill, or rather the remnants of the Hon. Mark Parnell's bill following subsequent amendments to the bill filed last month. At the outset, I commend the honourable member for his perseverance in pushing for reform with respect to FOI laws over many years in this place. That is certainly a measure that we have always supported in our team. That is the thing about a strong crossbench that can shed light on issues that slow burn, sometimes for years, until the public or government catches on.

That is what has happened here. This is the third time in the past four years that the bill has been introduced by the Hon. Mark Parnell. It first lapsed when parliament was prorogued. The second bill did pass the Legislative Council in November 2016, I believe, with the support of the then opposition, whereupon the bill languished, as so many private members' bills did, in the House of Assembly under the Weatherill Labor government.

The original bill proposed amendments following a number of recommendations made by the former ombudsman back in 2014. The Attorney-General, Vickie Chapman, has recently undertaken to conduct a holistic review of our FOI Act following productive consultation with Ombudsman Wayne Lines around a number of issues that require reform. This is despite the Liberals supporting the bill in full while they were in opposition.

Nevertheless, SA-Best welcomes the announcement this week, and while we appreciate that the original bill does not comprehensively address all of the deficiencies in the existing FOI Act, we fully support the approach for a complete review of that act, which will be highly anticipated, as it will lead to meaningful change with respect to FOI laws.

Consequently, the remnants of the bill focus on items that the Ombudsman thought were useful to progress now, particularly in relation to determining public interest factors and preventing improper direction or influence over FOI applications. The Ombudsman wrote to the Attorney-General on 27 July 2018, after considering the Greens' bill, and explained the reasons for proceeding with the specific amendments pending the outcome of the holistic review.

The power of FOI laws cannot be overstated. On 2 July 2018, our Centre Alliance colleague Senator Rex Patrick revealed that the federal Department of Health was forced to release the total legal costs of defending its tobacco plain packaging laws in the case brought by tobacco giant Philip Morris against the Australian government.

The cost of the investor-state dispute settlement (ISDS) litigation was just shy of a whopping $39 million. Of course, the federal government has had to defend the matter, which it did successfully, but it came at great cost to the taxpayer and highlighted the costly consequences of the ISDS clauses in trade agreements.

ISDS provisions allow corporations to sue governments when they change their laws or policies. In 2012, the High Court determined that legislation relating to plain packaging of tobacco products was constitutional. That did not deter Philip Morris from shifting some assets to Hong Kong, claiming to be a Hong Kong company, and using the ISDS provisions in an obscure agreement between the government of Hong Kong and the government of Australia for the promotion and protection of investments to try to usurp the High Court's decision.

Obtaining that vital information involved an almost two-year transparency battle with the federal government under the commonwealth FOI laws. It should not be that hard. Senator Patrick said at the time that the release of the information under FOI laws was a 'win for transparency, but the information should have been released immediately upon request in 2016'. Ultimately, the Department of Health was forced to release the information to the senator but not before flouting FOI laws to seek to delay and obfuscate the intention to provide transparency and accountability of government.

It should not have taken litigation through the Administrative Appeals Tribunal, with the assistance of counsel, to obtain the information. For these reasons, we commend the efforts of the Hon. Mark Parnell and support the bill and renewed efforts to achieve a more workable, transparent and effective FOI scheme.

The Hon. K.J. MAHER (Leader of the Opposition) (17:26): I rise today to indicate the opposition's support of this bill, as proposed to be amended by the Hon. Mark Parnell. I believe this is something like the third time the Hon. Mark Parnell has introduced a bill that is similar or indeed exactly the same. It is worth putting on the record that I think the second iteration of the bill introduced in 2016 passed the Legislative Council with the support of the Liberal Party. The Liberal Party, including the now Attorney-General, Vickie Chapman, also voted for this bill in the House of Assembly.

In his second reading response earlier, I think the Treasurer advised the government would oppose the bill on the grounds that the Ombudsman believed a full rewrite of the current legislation is required and that such a review was going to commence. I understand the Hon. Mark Parnell has had further communication with the Ombudsman, who has indicated that, while some elements of this bill may be put off until that rewrite is concluded, there are some that ought to be acted upon immediately. I commend the Hon. Mark Parnell for narrowing down, extraordinarily, those three specific areas that the Ombudsman said ought to be acted upon immediately pending a fuller outcome of the review.

Given that it has been narrowed down to those areas, the opposition will support the bill in the form it is currently in and indicates it will look at any further reforms that come either from crossbenchers or the government in relation to further reform in this matter.

The Hon. M.C. PARNELL (17:28): I will sum up the debate. I thank the Hon. Connie Bonaros and the Hon. Kyam Maher for their support. I will also put on the record that I have been in continuous discussion with the Attorney-General and her staff. I am aware that the government is not supporting the bill at this stage. I accept that it has a tougher passage in another place, but it may well have an easier passage tonight.

Other members have, I think, fairly well summarised the passage of this bill. The one thing that I would emphasise is that I resisted the temptation in this bill to put any of my own agenda. This bill was entirely the product of the 2014 Ombudsman's audit of public sector agencies and how they handled freedom of information. We know from the audit all those years ago that most agencies were not following the law, that agencies had developed a culture of secrecy and ministers were illegally and unreasonably interfering in the assessment of freedom of information applications.

As a result, I packaged all of the Ombudsman's legislative recommendations, put them in a bill and, as other members have said, it is now the third time I have introduced it into parliament. In conversations with both the Attorney-General and the Ombudsman since then, it has become apparent that there is now an appetite for a complete review of the Freedom of Information Act. Let me say that I fully support that approach. We absolutely do need to review the act, but that does not mean that reform is a worthless exercise.

When the Ombudsman wrote to me some time ago—and I am not sure about others—he said that his preference was to do a whole rewrite of the act. I wrote back to the Ombudsman and, in part, basically my letter to him stated:

My main concern is that by pushing all reform back until 2019 (at the earliest) we are missing the opportunity for a number of simple 'no regrets' reforms that could be instituted now and improve the operation of the FOI system pending a full review.

If you think any of the reforms in the current Bill fit that description, it is an easy enough matter to put them up as stand-alone amendments. I will be guided by you, but if you think this is worth pursuing, I would be happy to meet to discuss this further. I believe the Attorney's office would be willing to work with us.

That was my approach to the Ombudsman. I met with the Ombudsman, and he told me that he had had another look at it and thought that there were some no-regrets options—some low-hanging fruit, if you like—some things that we could easily and simply fix up now that did not stand in the way of a comprehensive review.

He nominated three areas, the first being the more comprehensive definition of what public interest factors need to be taken into account in assessing freedom of information applications. The second was to put in a prohibition against improper or undue influence on those freedom of information officers who are tasked with assessing applications. Thirdly, he pointed out some anomalies, if you like, where an agency says they have looked really hard but they cannot find something or they pretend that a document does not exist, to make sure that decisions like that are reviewable. There were three things that he thought were effectively no-regrets options.

As wedded as I was to the original bill, I have swallowed hard and I have taken the red pen to the majority of the bill. Hence, people will have before them a series of amendments in my name with the words 'the clause will be opposed', 'the clause will be opposed'. It is not as if I have had a change of heart and think that what the Ombudsman said back in 2014 is now no longer relevant. I still believe all those reforms were worthwhile, but in the interest of focusing on the low-hanging fruit, I have deleted probably 80 per cent of the bill and I have confined the bill to those matters that are left.

I am delighted that we now have the Labor Party supporting the bill. People have suggested to me that the major political parties' views on these matters can change according to whether they are in government or in opposition. I will leave that for others to decide, but I certainly think this is something that we can do now. There will be no regrets because I expect I will not be the only person in this chamber who is lodging freedom of information applications before we see the government bill and before the government bill passes through both houses of parliament. That could be six months away or it could be much longer away.

I think these reforms are worth supporting now, and I am glad we have the numbers. If people really want to go through the detail of every clause in committee, of course I am willing to do that, otherwise I hope the bill has speedy passage through all of its stages today. I look forward to it reaching the lower house and to the government supporting it there as well.

Bill read a second time.

Committee Stage

Clause 1.

The Hon. R.I. LUCAS: Can I indicate that, just to repeat again information the Hon. Mr Parnell has put on the record, the government's position as advised by the Attorney-General has accurately been described by the Hon. Mr Parnell so I do not propose to speak at length, just to indicate that there have been productive discussions, the Attorney-General informs me. There is to be this review and at some stage the government will come back with its proposition after appropriate consultation. Therefore, at this stage, our position, whilst we recognise the numbers in this chamber, we do not propose to delay the proceedings by calling for divisions during the committee stage of the debate or, indeed, at the third reading. The government's position is to oppose the third reading of the bill.

Clause passed.

Clauses 2 to 3 passed.

Clause 4.

The Hon. M.C. PARNELL: If the question was that the clause stand as printed then I will be opposing that because this is one of the clauses that I am seeking to strike out of my own bill.

Clause negatived.

Clause 5 passed.

Clause 6.

The Hon. M.C. PARNELL: I will not be insisting on this clause.

Clause negatived.

Clause 7.

The Hon. M.C. PARNELL: Same again, I will be opposing this clause.

Clause negatived.

Clause 8.

The Hon. M.C. PARNELL: This will be struck out as well.

Clause negatived.

Clause 9.

The Hon. M.C. PARNELL: I move:

Amendment No 5 [Parnell–1]—

Page 6, lines 12 to 20 [clause 9, inserted section 18A(2)]—Delete inserted subsection (2)

A decision by an agency in respect of the nature and scope of an application for access to a document of the agency and whether a document, or information contained within a document, is or is not within the scope of the application is a determination for the purposes of this Act.

My amendment is simply to delete the inserted subsection (2).

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 6 [Parnell–1]—

Page 6, after line 20 [clause 9]—After inserted section 18A insert:

18B—Nature and scope of application

A decision by an agency in respect of the nature and scope of an application for access to a document of the agency and whether a document, or information contained within a document, is or is not within the scope of the application is a determination for the purposes of this Act.

This amendment is to insert a new section 18B into the act.

Amendment carried; clause as amended passed.

Clause 10.

The Hon. M.C. PARNELL: I move:

Amendment No 7 [Parnell–1]—

Page 6, lines 21 to 26 [clause 10]—Delete clause 10 and substitute:

10—Amendment of section 19—Determination of applications

Section 19(3)—delete subsection (3) and substitute:

(3) This section does not require an agency to determine an application for access to a document in accordance with subsection (1) if the agency has, in accordance with this Act—

(a) transferred the application to another agency; or

(b) determined that it is not possible to give access to the document because it cannot be found or never existed; or

(c) refused to deal with, or to continue to deal with, the application.

This amendment replaces the clause 10 as printed with a new version of clause 10 in the matter of the determination of applications.

Clause negatived; new clause inserted.

Clause 11.

The Hon. M.C. PARNELL: I move:

Amendment No 8 [Parnell–1]—

Page 6, lines 27 to 35 [clause 11]—Delete clause 11 and substitute:

11—Amendment of section 23—Notices of determination

(1) Section 23(1)(a)—delete paragraph (a) and substitute:

(a) of its determination of the person's application (including any determination made under section 18A); or

(2) Section 23(1)(b)—after 'not held by the agency' insert:

(other than in circumstances contemplated by section 18A)

(3) Section 23(2)—after paragraph (f) insert:

(fa) if the determination is to the effect that it is not possible to give access to a document because it cannot be found or never existed—the fact that the document cannot be found or never existed (as the case requires) and a summary of the steps taken to find the document; and

As with clause 10, I am proposing that we delete clause 11 as printed and insert a new clause 11, which is an amendment to section 23—Notices of determination.

Clause negatived; new clause inserted.

Clause 12.

The Hon. M.C. PARNELL: I am proposing that this clause be struck out.

Clause negatived.

Clause 13.

The Hon. M.C. PARNELL: In what I should say is the fastest committee stage I have ever experienced, I will not be insisting on clause 13 and will be voting that it not stand as printed.

Clause negatived.

Remaining clause (14) and title passed.

Bill reported with amendment.

Third Reading

The Hon. M.C. PARNELL (17:42): I move:

That this bill be now read a third time.

Bill read a third time and passed.