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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2010-05-27 Daily Xml
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FREEDOM OF INFORMATION (FEES) AMENDMENT BILL

Introduction and First Reading

Ms CHAPMAN (Bragg) (10:41): Obtained leave and introduced a bill for an act to amend the Freedom of Information Act 1991. Read a first time.

Second Reading

Ms CHAPMAN (Bragg) (10:41): I move:

That this bill be now read a second time.

This bill is introduced in part fulfilment of the promise made by the Liberal Party prior to the last state election that it would move to expand the transparency of the government. A number of proposals were presented at the election. In addition to the important scrutiny that we proposed via the establishment of an independent commission against corruption, significant legislative reform was also proposed not only under the Whistleblowers Act but also under the Freedom of Information Act.

The people of South Australia have access to information held by government pursuant to the principal act, namely, the Freedom of Information Act 1991, which essentially provides a legally enforceable right by members of the public to have access to documents held by government, restricted by the public interest exception and a preservation of personal privacy. A schedule in the principal act provides for exempt documents to include cabinet, Executive Council and intergovernmental documents and those affecting law enforcement and public safety.

That is the general principle. Except in identified exceptions in the act, the public should have access to the records of government; after all, that is what they are there for: to serve the people of South Australia. The premise of this whole legislation is to ensure that the public has access. The flow of information from government during the current government administration under Premier Rann has been utterly appalling. Freedom of information applications have increased over that time across the board, whether they be members of parliament, other agencies or the ordinary member of the public who wants to have access to such information, but the level of information released has not.

In fact, in the last financial year, 10 per cent of applications made to the state government were refused, and this is up from 6 per cent back in 2000-01. The trend has continued to increase in terms of the government's refusal to be open and transparent and to provide information. For freedom of information to work properly, interference cannot be permitted, and the Liberal opposition has been committed to ensuring that this flow of communication and information transfer is restored.

We are not alone in the importance of this. In the 2008-09 annual report the South Australian Ombudsman, Richard Bingham, referred to the over-application of the cabinet exemption rule for FOI applications. When this matter was raised publicly and concern was expressed by citizens and leaders in the community, by 12 August 2009 the Premier had announced that cabinet documents as recent as 1999 'will soon be available for release', and that as and from 1 October that year cabinet submissions and documents may be disclosed after just 10 years. He boasted, as he usually does, that he was not aware of any other jurisdiction in the world that made them available sooner and that his announcement in this regard was in some way to appease us all that he would be providing something revelatory, open and transparent to the citizens of the state. All it was really trying to do was to expose the decisions of previous administrations under the guise of his pretending to be open and transparent.

The curious thing is that, almost contemporaneously with that announcement, a member of his government (minister Gago) announced regulations issued by her that PIRSA and the Department of Planning and Local Government would be exempt agencies in respect of all documents relating to the Burnside council inquiry—even retrospectively. Within weeks we also witnessed the announcement of the SA Water and United Water litigation, claiming a breach of contract since 1995, with public threats to expose Brown-Olsen government cabinet documents. While the Premier is pretending that he cares about this issue, his own ministers are acting in a manner which continues to suffocate the flow of information.

I will say that, to its credit, the Rudd federal government made an announcement during the election campaign prior to coming to office that it needed to reform the Freedom of Information Act 1992 at the commonwealth level, promoting a pro-disclosure culture and more openness in government. There was some small legislative reform in late 2008 and, ultimately, the Freedom of Information Amendment Bill last year passed through both houses of parliament to follow up on that promise. Some would say that it was a superficial change in the sense that it did not go far enough, but at least the Rudd government was prepared to conduct an inquiry and investigation into this matter and say, 'Yes, it is inadequate and we in government will remedy it'—and it introduced those legislative reforms last year. I give the Rudd government credit for that and I urge the South Australian government to follow suit.

A number of reforms were proposed in respect of that federal legislation, but I will say in more detail at another time that those reforms will need to be replicated here. One idea was to have a national commissioner to deal with this so that, fundamentally, we protect the hapless (if I can say) freedom of information officers that sit in departments smothered with applications. They are expected to locate the documents and information under the Freedom of Information Act. They have a hugely oppressive list of guidelines, which is administered through the government, as to disclosure of information. So much material is delayed in being issued to the applicant because it must go through the minister's office to be checked.

I do not doubt that, in order to ensure we protect privacy and the documents which are listed in the legislation as requiring protection, these issues have to be checked, but in my experience this government has increased the delay and increased the denial. Even when they are told by the Ombudsman that the applicant is right, as they were in the case of the application for documents and correspondence between the Chapley Group of companies and the government over the proposed preferential land deal in the sell-off of Glenside Hospital, and they are told by the Ombudsman, 'She is entitled to look at those documents. I will issue a determination that they are documents within the act which should be available,' what does the government do? The government, of course, rushes off to District Court to challenge the Ombudsman's decision. It is legally entitled to do so, but, as usual, consistent with the incredible—

The Hon. M.J. Atkinson: Just like the Olsen Government.

Ms CHAPMAN: Different aspect altogether; that was a clarification.

The Hon. M.J. Atkinson: That was a clarification.

Ms CHAPMAN: Of definition of the act. You had better read it. No wonder you are the former attorney-general. In any event, they rush off to the District Court to try to protect these documents. We are told that, at this very moment, the government is ready to sign the contracts with a nominated Chapley company to press ahead with the sale of that land, even though, as we speak, we are still waiting for a judgment of the District Court. That is the level to which the government will go to keep documents secret.

One of the very able arms of the community which is skilled at ensuring secrets are made public is the media. The basis of this bill is to give legislative provision for professional journalists to have access to information and, effectively, exemption from the fee to provide the documents under an application for freedom of information for up to five hours. We as members of parliament, of course, have the privilege of being exempt from the fee obligation, because we are elected members who act on behalf of our constituents and it is important that we have access.

So, too, are members of the media. At present, they are able to apply, but it is financially onerous, and therefore we consider that, with the cap of five hours, it is reasonable for them to have access. After all, they are also responsible for keeping the public informed. Under the terms of the balance of the legislation, they will still remain completely restricted from having access to documents which currently have cabinet protection, privacy provisions and the like, as are other applicants. All this bill will do is give their application an embargo against any account being issued for the first five hours for the provision of material pursuant to an application under the Freedom of Information Act. At the time of the election, the opposition made a commitment to move this amendment to the act. I urge other members of the parliament, including members of the government, who I am sure from time to time have had the frustration of the rejection of a freedom of information application, to support this bill.

Debate adjourned on motion of Mr Sibbons.

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