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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-03-26 Daily Xml
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Bills

Freedom of Information (Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 19 March 2015.)

Mr KNOLL (Schubert) (10:47): It is with great pleasure that I continue my remarks and thank my good friend the member for Hartley for bringing this bill to this place. It is a very simple bill that seeks to make it an offence for someone to improperly direct an officer of the agency making a determination under FOI. I think it is a very common-sense measure.

Can I say, as a prolific FOI-er, my experience has very much been that the FOI officers and their processes are very good. My office and I have been learning to traverse the 'rocky path', as we are calling it, to be able to get FOIs in and seek the information we are after without unnecessarily burdening FOI officers trying to compile information that we do not want. As always with these things, the devil is in the detail.

But I do want to make this point: for all the good work that the FOI officers do, they do seem to be obstructed from further up the chain, most notably from officers of chief executives. We have found very much from our experience that there is an obstruction by departments. Indeed, it almost seems that the FOI officers are good people who are on our side and trying to comply with the act and do the right thing, but they are seemingly hamstrung by departments and their chief executives.

This bill has come about as a result of the Ombudsman's report late last year. I am going to list what the Ombudsman found in his audit because it is interesting how many of these experiences we have had in our office. The audit found that the act is outdated and that its processes belong to pre-electronic times. It is interesting that in only the last couple of months we have woken up to the fact that email exists and that we do not have to send hard copies of reams and reams of paper out to the wonderful Schubert electorate office.

The audit found that agencies' implementation of the act is wanting and demonstrates a lack of understanding or commitment to the democratic principles which underpin the act, and that is very much our understanding from what we are seeing of it. Most agencies are not coping with the volume and complex nature of recent FOI requests. Can I say that I believe that those FOI requests are very much a response to the obfuscation and the obstruction that is happening. The more obstruction that happens, the more complex and wideranging the FOI requests become, as opposed to dealing with this in a more sensible manner.

Six of the 12 agencies failed to determine over 50 per cent of access applications within the time frame required by the act. That is very much our response. We spend a lot of time following up FOIs. It seems sometimes that we know that we are on the right track with the FOIs and the information we are seeking to get by how long the FOI application is delayed. The applications that are fairly benign are dealt with reasonably quickly, but the ones that actually help us to get a better understanding of this government's processes are the ones that do tend to take quite a bit longer.

It is common practice across all agencies to provide copies of FOI applications, determinations and documents to the minister to get the green light. Whilst the act permits this, evidence provided to the audit strongly suggests that ministerial or political influence is brought to bear on agencies' FOI officers, which is exactly what we are seeking to try to redress today.

The agencies' chief executives are not providing FOI or pro-information disclosure leadership. In nine out of 12 agencies there is no directive at all from the chief executive. Again, this is very much our experience and very much the vibe that we are getting back from departments as to the way that they are dealing with these things. Finally, the audit found that only one agency stated that it has ever released an exempt document, despite the discretion to do so under the act. So certainly, even though discretion is there, discretion is not always taken.

The government's response to the Ombudsman's report was to get up in this parliament and say, 'Well, unless you can come to us with some specific examples of where the act has not been followed, we can't do anything.' I find that answer frustrating and I find that answer disingenuous, because that is exactly what the Ombudsman is set up to do; that is, to be able to deal with things in a confidential manner, to be able to report honestly without fear or favour so that the parliament can deal with these things in the abstract as opposed to in the specific, so that we can actually get to a better FOI process.

I would like to talk about another example in a different sphere of government where this same situation happens. That is in regard to the ACCC's investigation into Coles and Woolworths with regard to improper practices when dealing with suppliers. Exactly the same can be true. Coles stands up and says, 'We can't deal with complaints unless people come forward.' Now suppliers are not going to come forward because they are scared of losing their contracts, in the same way that people within departments would be scared of losing their jobs.

So what the ACCC said was, 'Well, we'll take some evidence confidentially. We ascertained that there was enough evidence to do an inquiry, and then what we did do is we forced companies across the board to tender evidence.' By doing that, they took this away from being specific complaints and individual complaints to being more abstract, more holistic, which meant that Coles was not able to take action against any individual company or punish any individual company.

The Attorney-General, for much of the latter part of last year after this report came up, stood up and said, 'Well, how am I supposed to be able to deal with things if I don't know the specifics of a case? We'll go back and we'll have a look at things, but unless we have some hard evidence, how are we supposed to deal with that?'

I find that attitude disgusting—absolutely disgusting. If this government was committed to free, fair, transparent and open government, it would not question the Ombudsman's report. It would take the 33 recommendations that the Ombudsman put forward and it would enact them. It would say, 'We are committed to the process of open and fair government and we will enact the 33 recommendations that the Ombudsman put down.' What have they done to date? Absolutely nothing.

Mr Tarzia: Nothing.

The DEPUTY SPEAKER: Could I just ask the member for Hartley to stop the running commentary or I will get the book out? It is a bit early to start, wouldn't you have thought?

Mr KNOLL: He needs to make up for lost time yesterday, Deputy Speaker.

The DEPUTY SPEAKER: No need to be smart. Just do it.

Mr KNOLL: I do find it extremely disingenuous. I find it extremely frustrating. When the member for Hartley, doing the good work that he is doing, brings a piece of legislation that helps to enact merely one part of the Ombudsman's recommendations, this government seeks to see this as something other than enacting open democracy. It is an absolute disgrace.

I welcome and champion the member for Hartley's bill in this place, because it goes to the very heart of what people in South Australia want to see. At a time when sometimes, as has been pointed out by other colleagues, our conduct leaves a little bit to be desired, at a time when the standing of politicians amongst the wider community is not at its highest ebb—it is nowhere near at its highest ebb—we have an opportunity to tell the people of South Australia that we are going to be open about the way we do things, that maybe they can trust that their politicians are going to tell the truth and that, when questions are asked, they are going to be answered openly and faithfully and with the understanding that sometimes we make mistakes, but we are going to cop to those mistakes and move on.

In order for people to have faith in their politicians and to have faith in government institutions and in the institution of the parliament, we should be able to bring forward bills like this that should seek and receive bipartisan support so that we can get on with showing the community that we do more than just muckrake in this place, that we do more than just heckle across the chamber, that we are indeed committed to providing the best government that we can, and that the South Australian public should have more faith in politicians and should think better of us. In that quest, I very much support this bill, and I urge the government to support this bill on those grounds.

Mr GRIFFITHS (Goyder) (10:56): Fine words, member for Schubert, and indeed a fine private member's bill I believe from the member for Hartley. I do not intend to speak very long on this, but there was an example yesterday of a response from the Treasurer that convinced me of the need for this bill.

The member for Schubert, as part of his contribution, reflected upon the fact that it is a common practice for ministers to be advised of FOI applications that have been lodged. I can respect that, but the Treasurer, in response to a question from the member for Stuart, reflected upon details contained in the FOI, the request for information sought and the information that was provided in response to the FOI, so it is obvious to me that the minister was aware of it and that he presumably gave a direction to his staff (or it is a policy that exists within his staff) to ensure that, when an FOI is lodged, the minister receives, as part of their preparation information for parliament, information that assists in the response to be given.

I am a very strong believer that education empowers us, but information empowers us just as much. From an opposition perspective, the only way in which we can do our job in the best possible way we can is to possess as much information as possible, so that we understand and appreciate the issues occurring, the good and bad aspects of things, how the decision has been informed, what the basis of it has been, what level of concern has been raised and what the data is that supports the decision that has been made. That is where the FOI process is such a key one.

The legislation, as I understand it, has existed since 1991. It is used by some people differently to others. In my own case, it is based sometimes upon community individual requests for a specific set of data. Most times, it is based upon particular interests that I have and information that I require for my shadow portfolio to act as best as I can, and my responsibility as a local member to possess information I need to inform the community. It is there for a reason: to assist in the information that members have available to them.

I have looked at the member for Hartley's bill. It ensures that the process is as (and this is a loose word) clean as possible to ensure that no direction has been given, that there are no delays resulting from that and that the information flow allows scrutiny to occur on how decisions have been made. There will be a lot of support from the opposition on this. We very strongly support this bill. It is based upon recommendations from other levels for changes to occur.

It is very sad, upon reflection, that the government has chosen not to do anything on this yet, and it is completely appropriate that the member for Hartley, with a particular interest in this area, having only been here for 12 months, has identified what he is concerned is a deficiency and an improvement opportunity and has put this bill before the house. I do fully support it, and I hope that the government recognises that it is an improvement opportunity and support it also.

Mr WINGARD (Mitchell) (10:59): I rise today as well to speak on the Freedom of Information (Offences) Amendment Bill put forward by the member for Hartley and commend him on the work he has done in this area, and also commend the words just spoken by the member for Goyder and the member for Schubert. Interestingly, the point the member for Goyder raised was one of the issues I would like to raise in conjunction with FOIs. I noted the same point he did yesterday when the member for Stuart asked a question of the Treasurer and quoted part of an FOI that he got back. I know there are a lot of FOIs that go in that are very slow to come back to members.

In quoting a section of that FOI, the Treasurer was very quick to jump up and ask the member for Stuart to read out the entire FOI, which would really suggest that he knew exactly what was in that FOI. As was pointed out, it is fair and reasonable that the minister gets to be advised on what the FOI is but, as the member for Goyder said, you do not want a minister influencing the information that is or is not given in that FOI.

As a journalist in a past life, that is one of the things that I know is extremely frustrating, that is, when you submit an FOI to find out some information and you do not get the return on that information which you think is fair and reasonable. While there are paths to go down, it is long, it is convoluted and it is delayed and there is no efficiency or effectiveness, sometimes, in this process. That is an extreme frustration, as I said, for both journalists and members of the opposition.

From my experience, you feel like you are being railroaded. You do not want to feel that ministers would be influencing the information that you are seeking and the pace at which that information is delivered. Again, a few of the FOIs that I have put in have taken quite a lot of time to get back and, lo and behold, in any conversations that are had with a minister or ministerial staff, they tend to know exactly what I am talking about before I have received the FOI. That is quite frustrating. Again, you do not want to believe that this information is being circumvented by ministers but, just the way the Treasurer spoke yesterday when the member for Stuart asked him a question, was very alarming from where I sat in the chamber.

The other thing I have noticed, revisiting my journalistic life, is when I have done some FOIs for vision. The member for Schubert made a very good point that technology is moving, and I note that we have to submit a letter and sign a piece of paper and forward them to the appropriate FOI department. In this day and age, with technology moving, perhaps that could be streamlined and made electronic and far more efficient and far more effective. The time in which I am getting FOIs back is quite excessive and it is a very hard way to pursue information if you want something in a timely manner, and to be efficient and effective in making a point or finding some information.

I mention from a journalistic point of view, too, getting FOI vision. There was some vision that I was seeking under FOI, and that vision was found and I was told by the FOI officer that they had that vision but, through the lack of a very simple computer program, they could not wash over people that were in that vision, although distant, just to protect their anonymity. I understand them wanting to do that. They could not pixelate the people that were not involved in the incident that we were looking for.

Because they did not have that very cheap piece of software that is very easy to use for people who work in this area, they could not pixelate out the people who did not need to be referred to in the vision and, therefore, I could not get the vision. They were happy to wipe their hands of that and that was all I am told can be done. Again, it is just another way that the process is inhibiting what we are meant to do here.

I would like to see that brought forward. I would like to see the technology improved and upgraded so we are not signing pieces of paper and going slowly through snail mail and old methods along those lines and we can maybe electronically put in requests to make it a whole lot easier, quicker and more efficient. Likewise, let us start moving into the modern age.

There are a lot of security cameras around and a lot of vision is recorded and that can also be requested under FOI, and we should be able to access that quite easily. You can email a video clip quite easily these days and, as I said, with these programs you can pixelate out people who are not relevant to the information you are seeking. I think that is something that also could be looked at within the whole concept of getting FOIs, because it is very frustrating.

I have spoken on this before, and I stand by those comments. It is a very inefficient system, and I know that a lot of the members on our side feel that way; in fact, probably all of them do. Again, I know that the member for Schubert has said that as well.

The member of Schubert raised a couple of really good points as well, with regard to this being looked at by the Ombudsman and 33 recommendations being made to change the system. I suspect, as I suggested, it needs to move into modern times to make it more efficient and more effective. To see that the government has enacted none of the 33 recommendations is a real indictment that perhaps the government does not want to move into modern times and to make things more efficient and effective, which is what we realistically what we are about here as a government, that is, being efficient and effective to service the people of South Australia in the best way possible.

As I said, I really hope that the flow of information in a timely manner can be made easier through this process. I commend the member for Hartley for bringing this bill before the parliament, and I also commend the contributions made earlier by the member for Schubert and the member for Goyder. I hope that in the very near future we can make this system a whole lot more efficient so that it can help us service the people of our community.

Mr PENGILLY (Finniss) (11:06): I indicate my support for the bill introduced by the member for Hartley. Unfortunately, in this state freedom of information seems to have become freedom from information. It becomes a frustrating task. I use freedom of information requests regularly, both at a government level and at a local council level. I get annoyed that there are obstructions put in the way on a regular basis. I get annoyed also not so much at a government level but at a local government level when snide remarks are made by people in local government about the fact that the member puts in a seemingly endless run of freedom of information requests. It is a simple rule of democracy that freedom of information is something that should be there. We are not a communist dictatorship in this state—not quite, anyway. It is something that is critical to the information flow to both sides of the chamber.

I recall that the Speaker, the member for Croydon, I believe, put in a freedom of information request on someone a year or two ago, so it is used on both sides. But, inevitably, it is used a lot more by members of the opposition than by government members; however, government members avail themselves of it from time to time.

The member for Hartley has put forward this bill in an effort to speed up and perhaps to make a lot more visible the requirements of freedom of information. I think that it is a good bill and that it should be supported by both sides of the house. I have no doubt that when members opposite are in opposition, they will be pretty keen to put in a lot of freedom of information requests themselves. With the mess that is around the place at the moment, they can expect that the opposition will be continuing to put in freedom of information requests on a regular basis and, indeed, this applies to members in another place. One member in particular in another place is always sprouting information he has got from freedom of information requests. I look forward to the passage of the bill, and I wish the member for Hartley all the success in this regard.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:08): I rise to speak on the Freedom of Information (Offences) Amendment Bill 2015 introduced by the member for Hartley, and I thank him for doing so. He had prosecuted this matter last year, but the proroguing of parliament interrupted the conclusion of the matter at that time. I feel at a loss as to why we had to prorogued, nevertheless we did and that means that persons such as the member for Hartley had to start all over again. The member for Hartley brought to the attention of the government one of the most critical criticisms in the Ombudsman's report provided to us in May 2014. The former ombudsman, as he now is, Mr Bingham, prepared a comprehensive audit of the state government department's implementation of the Freedom of Information Act and gave a very significant report back to us as a parliament, and there were deficiencies across the scale.

One of the matters that was raised, and I think very concerning, was the suggestion that there had been ministerial interference with the processing matters of freedom of information applications. It is the object of the Freedom of Information Act that there will be disclosure, that there will be transparency of government, that if persons or entities have records kept in respect of their information they should have access to it, that they should have the right under the act to correct it if it is incorrectly recorded, and there are processes upon which they can do that. The public at large, whom the government and the parliament are here to represent, have a very clear entitlement under that act to expect from the government, who is the keeper of the records, to make that available, and similarly for local government.

A number of entities are exempt, like the Director of Public Prosecutions. His or her office is exempt for good reason, and we do not take any issue with that. However, the Ombudsman, after more than 20 years of operation, said that there were some very significant defects with this legislation. The government has done nothing, not one single thing, since May last year. We are coming up to the 12-month anniversary.

There is a very condemning report of the alleged conduct of the government, and they have done nothing to deal with the legislative reforms recommended. They have not come back to the parliament with any indication of what they are prepared to do or accept. When questioned about whether there had been any matters raised with the Attorney-General or members of the government in respect of these allegations, they basically said, 'We haven't had any complaints.' Well, hello! Of course they have not had any complaints.

The people who have spoken in confidence with the Ombudsman about the behaviour that has occurred of course are concerned for their jobs, they are concerned for what repercussions it will have. You only have to read the report to appreciate that they are nervous enough about making a complaint; they do not want their names disclosed: of course they do not. The Attorney-General, who is supposed to be the first law officer of the state, is just ignoring this because he has not had any specific complaints. Hell will freeze over before that happens, of course. I just say to the government: you are avoiding your responsibility under the act. You are under scrutiny, you have been exposed to very serious allegations, and you have done nothing about them, and that is shameful.

The member for Hartley has addressed some of the recommendations that seek to introduce an offence that would apply when there are circumstances of ministerial interference and also to make it an offence if an accredited FOI officer fails to report to the Office of Public Integrity a suspicion that such a direction has been given. We have had a process for a long time for ministers to be apprised of the nature of applications that come in that have some power to present further material if they are privy to that. As ministers of the Crown, there can be circumstances where that would be reasonable.

My personal view is that the only way to stop this oppressive, unjustified and unacceptable conduct that is allegedly going on in this government is to allow them to have notice of a freedom of information application determination by an FOI officer, perhaps a 48-hour time frame, to act on that and to present a submission to the FOI officer or the director of the department, whoever is doing either the primary application or the review, and that at the expiry of that time the document is to follow the normal process of release or rejection, whatever the determination is, and of course it can follow an appeal process separately.

That is the only way that we are going to deal with this, to protect the interests of a government in those very rare circumstances where there may be information they have to hand which justifies some intervention, and they should follow the proper course. There should not be this holding onto documents sitting in ministers' offices for months at a time and rejecting them or just ignoring them altogether and then expecting the appeal process to roll along, and that being ignored in its time limits, taking up the Ombudsman's office time, having to issue directions, and going through the privacy aspects; months and years can pass.

The Hon. Mark Parnell in another place and I are pretty regular litigants down in the District Court, I can tell you, sadly, because we have to fight for information to be disclosed about government contracts. One of the most mischievous that I found was that the government would not even release an enormous number of submissions put in on the Mount Barker redevelopment. Ultimately, some went up online, but this matter of making applications went on for years. We finally got a determination in the District Court and finally we got to see them.

Do you know what one of the excuses was for my not being given a submission for a Mount Barker proposed development? That it might cause marital discord. Presumably, a husband and wife had put in separate proposals, one was supporting it and one was not, and if they found out that the other one knew about it there might be hell to pay in the house. I have never heard of that before: that was one of the absolute rippers.

We had another where it was claimed that it breached some privacy around some Indigenous material or cultural practice that would be offended by this (and we had this before over the Hindmarsh Bridge matter, with the secret women's business and the like), where there was a piece of information that was of cultural significance it might offend. I immediately wrote back and said, 'In no way do I wish to cause any concern about any breach in that regard if this applies. I am asking that the matter be reviewed.' Guess what? Within a few days, I got the documents.

You have to fight every inch of the way to get legitimate access to documents on behalf of the people of South Australia. It is disgraceful that the government has not acted on this damning report and come back in here with a comprehensive amount of legislation to properly review the matter and take heed of what the Ombudsman has said. The new Ombudsman, as I understand it, has recently given his views on a number of matters. It appears that under the new Ombudsman's regime he is happy to continue to search for transparency and accountability of government through this process. I wish him well in that because at the moment clearly the Attorney has just slapped the office in the face by refusing to act on this at all.

I applaud the member for Hartley for coming in here for the second time with an attempt to at least give some protection to the people of South Australia in a process to ensure that they have access to material. It will become an offence if this is passed, as recommended by the former ombudsman, if there is any improper direction or influence and to make it an offence if someone knows about it and they do not report it. That is the only way that we can really give protection to the genuine, hardworking public servants who have been appointed as FOI officers in these departments and in the local government agencies so that they do not fear retribution in any way for ringing up a minister's office and begging to send the documents down.

I have to say that there have been many times when I have rung and asked, 'How are you going with those documents? If there is some genuine reason, that you are still finding something or you want to check something or have a look at it—but six months have passed.' With one the other day they said, 'We need to get Crown Solicitor's advice.' I said, 'Fair enough, that usually takes a fair while. I understand that.' The reply was, 'No, we only just sent it off a few days ago.' So for six months it was sitting in the minister's office. This is just shameful; it is disgusting. The people of South Australia have legislation that is supposed to protect their access to information and it has been shamefully concealed and only produced under duress.

Time expired.

Debate adjourned on motion of Ms Digance.

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