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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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CIVIL LIABILITY (DISCLOSURE OF INFORMATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 September 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:23): I rise to speak on the Civil Liability (Disclosure of Information) Amendment Bill 2013, which is a bill to amend the Civil Liability Act 1936. This bill was presented to us for consideration at a time when the Premier had announced that his government was going to establish a new regime—a program of proactive release of commonly requested freedom of information items. It was very pleasing to hear that announcement and the guidelines which were to be, presumably, circulated to the departments that hold so much of the public record that was under consideration.

The sorts of things the government announced they were going to put up on a website on a regular basis included details of credit card expenditure of ministers, the details of ministers' overseas travel, details of mobile phone costs, the detail of expenditure on hosting or attendance at functions and events, consultants, agency gift registers, details of procurement practices, and lists of capital works projects.

This is the type of information which, frankly, should have always been available in the public arena but which has been necessary to acquire only through freedom of information requests. It may also apply to members of parliament who do not actually sit in the cabinet but who are members of the same political party, but I do not know.

In my experience of freedom of information applications, in general there has been courteous cooperation of FOI officers in various departments. Largely, there has been prompt attention by the FOI officers, taking into account the breadth of applications. That is not to say that there have not been some exceptions, where there seems to have been a firewall, a blockade against getting any information either at all or on a timely basis. However, largely, the people vested with this responsibility process the applications competently and in a timely manner.

What has been a major problem, in fact, has been the time delay that I as an applicant, as a member of parliament, have had to put up with—and I know my colleagues have had to put up with—when the material has been collated and then the presentation of the information goes across to the minister's office. There seems to be an extraordinary delay quite often between the release or partial release of some information at that stage before it is received.

For example, I think I still have a freedom of information application in to the Premier's office on contracts in respect of chief executive officers that was presented over a year ago. I am still waiting. Curiously, what then happens in some of those cases that are in the category of the firewall of delay is that we get the documents and, amazingly, on the same day or the day before the minister responsible for the department that has the information in its possession makes a public statement or issues a press release to cover matters that are in the documents under the freedom of information application.

One is left with the impression, perhaps, that in some of these cases the minister might think, 'I'll go through those documents there and just check that there is no reason that they shouldn't be released.' I personally think ministers' offices should have some role in ensuring that there is some protection for the public because ministers sometimes are aware of information where it would be responsible for them to act, to indicate that there is some other information that needs to be taken into account before information is released.

I am not saying that that guideline which gives them this reserve power should be removed, but what I do say is that it seems on the face of it that there is a gross abuse of that process because so many times there seems to have been this contemporaneous announcement, release or explanation given, or a new positive initiative announced, which covers what might otherwise be a negative story for the government. It has not happened once or twice: I have been here nearly 12 years, and it has happened so many times now that I feel it is necessary to report to the parliament in this debate my concern about what on the face of it appears to be an abuse of that guideline allowing ministerial scrutiny.

At the time, the government said, 'We are going to put all of this on a website,' and they also responded to what I think has been a very longstanding request for submissions that go to governments in respect of legislation. The Hon. Stephen Wade, in another place, as shadow attorney, and I and the member for Heysen when we were in the role of shadow attorney, would frequently ask the government to disclose to us what various stakeholders or members of the public said about proposed legislation.

Quite often, they are able to identify deficiencies or things that are inadvertently, even, left out of their consideration and amendments can be made without losing the benefit of the legislation, or an approach be taken to oppose it if it is simply not going to achieve the stated objective, or, of course, it could be simply bad law. The point I make is that this has been repeated, certainly in the time I have been in the parliament: this government has consistently refused to give any or all of those submissions.

Quite frankly, I have been personally quite affronted by some of the response, which has been, 'Why should we bother giving this to you, you lazy opposition? You should go and get this yourself.' That sort of nonsense demeans the responsibility we have in parliament. Members of parliament are being asked to scrutinise and support government-initiated legislation, yet we get that sort of response.

I would have thought the better approach would be for them to be willing to hand over this material, which may demonstrably support their position, and, if it does not, it gives them an opportunity to present to us why that particular submission should be ignored, overlooked or taken into account but not given any weight, and so on. It gives an opportunity to put their position. That would be not only the practical but also the responsible thing to do, and I would have thought it would achieve a much better progress and passage of legislation.

However, the government, and a number of ministers, have chosen to take this view of, 'We are not going to give that to you. You go and get your own.' It is churlish and childish, at best, I think, but it is also, I think, an impediment to the orderly progress of legislative debate here in the chamber. Alternatively, I have had ministers say, 'Yes, okay, we will get that to you,' and then it does not come, or we are about to have the debate and it turns up at the last minute. Again, that is the sort of thing that is unhelpful to the orderly progress of debate in this house.

Sometimes, the answer is, 'We had not advised the people that we were consulting that we might be giving it to other parties and, therefore, we do not think we should give it to you.' Frankly, anyone who asks stakeholders for advice or a submission on a bill surely ought to presume that that information is going to go to a whole lot of people in government offices alone, so it is, clearly, not going to be something that is read by just the minister. That is completely absurd. In different ways, any progress has been stonewalled by our not being given the information.

Interestingly, in some recent debates, there has been prompt cooperation. It seems that, when we get that information promptly, it coincides with the fact that the submissions wholly support the government's position. We are as interested to read about those, but it is curious to us at best that the government seems to be particularly protective against submissions when they are not at one with their presentation. The other matter that has been raised—and it was asserted in the second reading contribution by the Attorney—is that under FOI requests, he says:

Government agencies administering the FOI Act report a culture of risk aversion and a reluctance to release information outside of the FOI Act.

One of the barriers to agencies proactively disclosing information outside of the FOI Act is the lack of protection from legal liability, meaning the proactive publication of information could give rise to a cause of action against the Crown.

I interrupt this quote to say that the only time that I can remember a question of legal liability being a basis upon which an FOI application was not responded to positively was when I sought the submissions that were presented to the government on the Mount Barker planning amendments.

Most of the members here would appreciate that this became a very difficult issue for the government—that is, the announcement of a planning proposal and the consequent public outcry about various aspects of it. We are not here to go through that today, but, during the course of that, I sought copies of submissions. I think from memory some were produced immediately and then a whole lot were not.

I was given all sorts of excuses. One explanation was that the release of the document might cause a domestic dispute between the person who had put in the submission and their husband or wife. I mean, hello? It was just so absurd, but as a result of that process there had also been raised a question of liability that may attract some penalty to the Crown if they had disclosed information without the consent of the person who had provided the submission.

We went through court cases on these things. We won. I was interested to note that, in fact, the second reading contribution complains about the heavy cost of administering the FOI Act, being $10.4 million during the 2011-12 year and the massive extra cost of that. Quite frankly, if this government were not quite so ready to jump into the District Court and defend applications to have documents produced under the FOI Act, to protect themselves against the disclosure of that information, perhaps we would not have had such a huge bill.

Nevertheless, I will come back to the question in point in particular and that is, only in one situation can I recall that the actual reason for declining to produce a document was based on any kind of protection against legal liability. The Freedom of Information Act currently provides the Crown with immunity from civil liability for defamation and breaches of confidence in respect of granting of access to a document.

I have to say that it does have some conditions on it under subsection (1) which talks about access to the document being given 'if the person by whom the determination is made honestly believes when making the determination' etc. There are some qualifications that go with it but, nevertheless, there is a section 50 protection already in the act.

I would be interested to hear from the Attorney (or the minister who has the conduct of this matter) the examples that could be given either in committee or in response of where there has been any action taken by any person, firstly threatening some civil claim as a result of the disclosure of documents and, secondly, any cases where an application has been made against the crown for disclosing documents in breach of that obligation and a breakdown of that in the category this bill expects to remedy. Perhaps during the lifetime of the government that would be a reasonable time frame to look at because certainly when the minister says things like:

While public servants are themselves protected from civil liability when exercising (or purportedly exercising) official functions and powers by the Public Sector Act, and the Crown has some protection from defamation in respect of documents issued by agencies for public information purposes, the Crown has no general immunity from civil liability in respect of the release of information outside of the FOI framework.

Well, let's find out how many cases there are of threats for civil claim for release of documents outside of the FOI act but we will hopefully have from the Attorney (or the principal minister) some response for the last 10 years as to how many cases they have had. They have received the threat, had action taken against them and moneys paid out, and the subset of that is to those that this legislation would purportedly provide immunity to.

The other aspect of this proposed amendment is that the immunity that the crown is going to be given appears to be from civil liability. Under the bill it says 'whether in tort, contract, equity or otherwise' but only in respect of a publication of information of a prescribed kind or in respect of the publication of information in circumstances prescribed by regulation. So, in the rest of it we seem to have an ambit claim about the 'all civil liability' and it does not appear to be restricted by any exemptions in that regard, but the extent of the nature of the publication appears to be a mystery; that is all in the regulations.

As frequently occurs, the government has not yet prepared the regulations to go with legislation; that is fairly typical. I do not make any criticism of that because often subordinate law is really there to provide the machinery for the implementation of what is in the statute. However, the government is increasingly intent on bringing bills into the parliament in which the very definition of what is covered in the legislation is in the regulations, so we never get to see it.

Many times we have asked the government, if they want to go down this course of keeping the flexibility and all the other arguments they raise about having everything in the regulations, then at the very least have the decency to show us some draft of the regulations at the time you are asking us to administer the progress of the bill as the statutes go through the parliament. Predictably in this case, as usual, we have not had any draft regulations presented. We have an indication, in the second reading speech, about what they do not intend to do. They say, and I quote:

I [which is the Attorney-General reading this] should make clear that the government has no intention of prescribing information of a personal or sensitive nature or information that is commercially sensitive.

Well, I should think so. They are issues that are already covered under the Freedom of Information Act and which are appropriate within that parameter, but they say to us that they anticipate that the regulations will prescribe, firstly:

general information about government agencies and their operations, being the type that is commonly sought and released under the FOI Act, such as details of credit card expenditure, travel, mobile phone...

and the list that I referred to earlier.

submissions on government policy initiatives;

We would expect those to be available and, as I say, when they agree with the government, they usually go up on the website fairly quickly anyway. The third area is:

information released in accordance with government-wide disclosure policies and information of a non-personal nature that has already been sought and provided to an applicant under the FOI Act.

We are given all sorts of assurances also about what goes up on the website—not just under FOI. I recall, when I was asked to be responsible for the opposition on health matters, that we would ask regularly about the progress of the non-emergency—they did not call it discretionary surgery—waiting lists.

The Hon. P. Caica: Elective.

Ms CHAPMAN: Elective surgery lists—thank you for the helpful contribution from the member for Colton. We would FOI these and we would get them months later—if it was in the same year, we would be lucky, really. The government eventually said, 'We will put these up on the website. We will have a regular website disclosure of this.' I think it was going to be monthly and so on.

Since that time, in the last few years, they have added more data onto the website where they said they would have a regular public disclosure of their performance in that particular area, but the reality is that it did not come up regularly. I can think of a more recent one, which the Minister for Transport Services would be familiar with, which is the bus performance contractors and their application of their contractual obligations, such as whether they are on time and so on.

The Hon. C.C. Fox: Benchmarks.

Ms CHAPMAN: Their benchmarks. I think they are actually called something else on the website, but they are supposed to go up on a quarterly basis.

Mrs Redmond: KPIs or something.

Ms CHAPMAN: It is like a key performance indicator result—thank you, member for Heysen—and it is supposed to come up every quarter. I recently saw that the January to March ones were up. I have not seen the March to June yet. I think we are still in November. I do not know whatever happened to the July to September ones, but here we are. So, there is a problem with even the promises about what they are likely to put in regulations. I can tell the house now that the promises that we have to put information on the website are somewhat deficient.

I do not cast any aspersion on the ministers at the time who make these announcements because, probably at the time, they think, 'I am sick of that Vickie Chapman FOIing me; I may as well put them up on the website. I will make an announcement, I will make it a positive initiative and I will make sure that this is available to everybody and I can get some credit for this,' but then somebody back in their department does not do it.

It is enormously frustrating, not just for members of parliament who are here to represent the public but for members of the public themselves, who see the announcement and think that that is a good idea and it is very good of the government to be transparent and so on, and then they go to actually have a look at it and it is not there. So, the timely application and posting of this material on the website must come with this type of legislation, if it is going to be of any benefit.

The opposition's position, particularly in the absence of any draft regulation, is that we are going to support the passage of the bill here today and allow it to progress. We think it is important to have some improvement here. We are concerned about the scope of the protection provided in the bill, and if it is intended that it be limited to defamation and breach of confidence then we need to have some clarity on that.

The fact that the government are proposing to put the class of documents that are to be protected in the regulations is also of concern to us, so we will consider what amendments may need to be made to that. If, on the other hand, there is some regulatory approach (that is, draft regulation) that they would like us to consider between the houses, we would be pleased to receive them and happy to do that.

In the event that the Attorney and/or lead minister has the information available, or is in a position to indicate in the response that we have sought, then I will not be seeking to go into committee today. But, I would like to have an indication that that could be either provided today or between the houses; then, we may progress the bill.

Mrs REDMOND (Heysen) (12:51): Call me cynical, but I find it extraordinary that after nearly 12 years in this place and, like the member for Bragg, having received all sorts of excuses for why information cannot be released, here we are five days before this parliament is prorogued and 122 days or so from the election, and the government has decided that it is time to be 'transparent and open' about all of these matters. It just strikes me as no mere coincidence that it should happen in this order.

Essentially, Mr Deputy Speaker, as I understand it, what the government proposes and what the Premier announced when he indicated that this legislation would be coming in, was that the government was going to be much more transparent; they were going to put onto a website for easy public access the sort of information that is commonly sought by freedom of information. There was a whole list of things to do with ministerial expenses, use of credit cards and all those sorts of things.

It has long been the case, of course, in this place that every member's travel entitlement and travel entitlement usage is made very public, but it was much harder to get the information about the usage of the entitlements of ministers, particularly the usage of their credit card and their travel entitlements, not as members but as ministers. There was always a lot of difficulty in getting that information and making that available to the public. Now, the government has decided that it is going to be a lot more transparent about how we get this information.

One of the reasons that was often cited for not being able to provide information was that if it was provided under anything but a specific request under FOI (that is, the Freedom of Information Act 1991), then the information being released would not get the protection that is given by section 50 of that legislation.

In brief—and I will paraphrase it—section 50 basically says that if someone who has received an FOI application determines and at the time honestly believes when making that determination that the Freedom of Information Act permits or requires the determination to release the information to be made, then firstly no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of making that information available. That, in essence, is what section 50 says.

People would argue that: unless you have actually made an application under the Freedom of Information act, we cannot release this information because we will be risking not having the protection of that section if we release it other than in that way. So, the purpose of this bill is obviously to then make the jump so that information put onto this website—information made more readily available—will get the equivalent of the protection offered, in general terms, by section 50 of the Freedom of Information Act.

But, as the member for Bragg has so rightly pointed out, as usual the government has introduced a bill in which the substantive part of the operation is actually to be contained in regulations which we are yet to see, yet we are being asked to put this through. Personally, I believe that we do need more transparency, and I have stood up for that a long time and argued long and hard for an ICAC, which this government resisted until it was belted into submission over the need for an ICAC in this state.

Over nearly every issue, I would say that transparency is never going to harm those who are dealing honestly and appropriately, and therefore no minister, or any other agency or officer and so on, should have anything to fear from this information being made readily available. I think that we should all, as a matter of course, instinctively apply what is referred to colloquially as the 'front page test'; that is, would you want this behaviour, this action, this expenditure, this whatever it might be, on the front page of the paper and would you survive the test of the public's scrutiny?

Over the last few weeks, of course, we have seen a great deal of public scrutiny at the federal level on the sorts of issues that are being talked about in this context. I have no difficulty with the idea that in general terms this should be supported. However, like the member for Bragg, I express some reluctance about putting through legislation when indeed the substantive part of that legislation is going to be in regulations which we are yet to see and yet we are being asked to put through. I just reiterate my cynical view that on the fifth last day of this parliament, after 12 years in office, this government is acting on this matter.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (12:58): I thank everyone who has contributed to this debate. I will be very brief because I do not want to take people over time if I can avoid it. I have just a couple of points. First of all, this legislation is not about FOI; indeed, if it were, we would not need this legislation because FOI has its own protections built into the FOI legislation that deal with material that becomes public material by reason of release.

The important thing about this is quite simple: this is to enable the government to proactively release information without the government being at risk of civil suit for having released that information into the public domain. The government does, but for this, not have that protection unless the release is pursuant to the FOI Act. So, if we want to do something that is bigger than FOI, we need protection for the act of publication or release of the information from suit.

If we do not, every release of information potentially carries with it the risk of civil suit, which would, I think, be a pretty serious impediment to any government feeling comfortable releasing proactively any information. That is the sole intent and reason for this. It is the only way for the government safely to be able to release information outside of the parameters of FOI.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (13:00): I move:

That this bill be now read a third time.

Bill read a third time and passed.


[Sitting suspended from 13:00 to 14:00]


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