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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2020.)

The ACTING SPEAKER (Mr Cowdrey): The member for Lee.

The Hon. S.C. MULLIGHAN (Lee) (17:30): Thank you, member for Colton. I appreciate receiving the call on this once more. When we were—

Mr Teague: He's Acting Deputy Speaker.

The Hon. S.C. MULLIGHAN: So he is the Chair of Committees, is he? Is he Acting Deputy Speaker?

Mr Teague interjecting:

The Hon. S.C. MULLIGHAN: Is he? I am sorry. I did not realise we had passed such a recognition of the member for Colton's service.

The ACTING SPEAKER (Mr Cowdrey): Perhaps you could direct your remarks to the bill in question, member for Lee.

The Hon. S.C. MULLIGHAN: Thank you. Sorry, I was distracted by the unparliamentary interjections of the member for Heysen. He must think this is a courtroom.

Mr Teague interjecting:

The ACTING SPEAKER (Mr Cowdrey): Order! Member for Lee, please continue.

The Hon. S.C. MULLIGHAN: This might curry in the Magistrates Court, but it will not here. I was trying to shed some light on the concerns of the Ombudsman when it came to amendments for the Freedom of Information Act. I had previously noted that the Ombudsman, if he has made submissions to the government, has not made them publicly available, so the best proxy we have for this is the report his predecessor provided in 2014 with a series of 33 recommendations. I had just so very briefly referred to those recommendations and had nearly finished. I will just quickly whip through those I did not get to. Looking at recommendation 22 out of 33, the former ombudsman said:

Agencies should note the legal position that merely satisfying the initial criteria in an exemption clause with a public interest test under the Act, is not enough to satisfy the test that disclosure would, on balance, be contrary to the public interest.

This is an important recommendation because we constantly receive determinations from agencies citing that it is the agency's view that, on balance, a release of a particular document or particular documents would be contrary to the public interest. The ombudsman here makes reference to the existing provision in the act—in fact, under the objects of the act; I think it is section 3(3)—that says that nothing in the act precludes the release of a document, notwithstanding other provisions or exemptions provided for in the act.

Essentially, that means that it is up to agencies to make the judgement that, even though they might find a reason not to release a document, they are still able under the act to release that document. That is particularly important when it comes to the public interest test because there might be a document that is otherwise considered to be exempt under one of the provisions of the act, but the agency should be given the opportunity to form a judgement that it is in the public interest. There are ways—tests, if you will—by which the agency will try to weigh up whether the public interest is met or the public interest is not served by the release of a document.

This is a particular area that is going to receive substantial attention not just here but, I suggest, in the other place, given that the amendments in the bill from the Deputy Premier attempt to include some examples of where the public interest may be served in the release of a document. Conversely, we have seen in the other place where the Hon. Mark Parnell MLC has previously provided an extensive public interest test to try to better frame up how agencies can weigh up that public interest test.

It has certainly been my experience, as it has been in the application of other clauses in other sections of the Freedom of Information Act, that agencies will use any means possible under the act to try to prevent the release of a document. This is particularly the case when it comes to the public interest test. There are all sorts of what I would consider to be bogus applications of the public interest test by agencies, which then cause them to determine that documents that have been located are not to be released. The next recommendation states:

The agencies should develop a policy in that assessing the public interest test in their FOI determinations, they should reject the Howard factors and focus on the actual content of the requested documents.

That is particularly interesting because the Howard test is not only a test used by agencies in determinations I have received back but also a test applied by the current Ombudsman. It is interesting in this regard that the previous ombudsman may be offering a view that differs from the practice of the current Ombudsman in the application of the Howard factors.

Unfortunately, or perhaps fortunately if you are required to listen to this debate, I do not have the Howard case in front of me, so I would not dream of regaling the intricacies of the case. The particular factors that are of concern here to the former ombudsman are summarised, namely:

the author of the document was or is of high seniority

that disclosure would confuse the public or that there is a possibility that the public might misinterpret the information—

I find that particularly egregious as a reason to find the release of a document is against the public interest—

disclosure of the information could reasonably be expected to cause embarrassment to the government or to cause loss of confidence in the government.

That of course should not stand as a reason to withhold a document by virtue of the application of the public interest test. Where would we be if documents were not released under freedom of information applications, or in response to freedom of information applications, because they might cause embarrassment to the government?

For members of parliament, particularly those of us who hold shadow ministerial portfolios, that is often half the reason to submit FOI applications: it is to find out how the affairs of state and the administration of government agencies and departments have been conducted. If they have been conducted poorly or inefficiently or inappropriately, then that is of course of the public interest.

Bringing those documents to light, and the matters those documents relate to, may cause embarrassment to the government and so they should. That is part of the function of how we here, particularly in opposition or even generally for others within the community, can hold governments to account. The next recommendation states:

Following Commonwealth and interstate FOI legislation, the Act should give express guidance on what factors should and should not be taken into account in determining whether disclosure of documents would, on balance, be contrary to the public interest.

As far as I can gather, the Attorney has tried to address the substance of this recommendation in her bill by the inclusion of the examples of how the public interest test might favour the disclosure of documents. But even with those examples that the Deputy Premier provides in her bill, there is no exhaustive list for or against. The Deputy Premier may perhaps quite rightly argue that it is impossible to come up with a comprehensive and all-encompassing exhaustive list of factors that would weigh both in favour and also against the release of documents according to a public interest test.

Notwithstanding that, it is certainly my view and it is certainly a view that the member for Heysen would have noted is expressed within my meagre range of amendments, my trifling number of amendments that the member for Heysen takes such objection to, that we try to flesh those out a little more, and I do not think that is unreasonable. Recommendation 25 is an important recommendation. It reads:

If ministerial ‘noting’ is to occur—

and by that the Ombudsman is presumably referring to the practice of an agency providing to their minister for information only that a determination is about to be issued to an applicant—

the process should be established by a formal written policy, common to all state government agencies.

This is something which I have had particularly distasteful experience with over the last couple of years in association with applications I have made to the Premier's office and to the Department of the Premier and Cabinet in relation to the Adelaide Oval Hotel development.

I will not go into the detail of that. That is perhaps a dish better enjoyed after the dinner break, suffice to say that it is a reasonable recommendation from the Ombudsman that if a minister is to participate in this process, even in the event that all they are doing is noting that a determination is to be made, then there should be a policy around that and it should be formalised, bearing in mind of course that the usual practice, as far as I can understand it, is—and this is not common to all agencies; not all agencies do this—agencies that choose to do this will send a copy of a determination to the minister for noting before the determination is made.

It is then up to the minister or the minister's office to ensure that that determination is adequately cited by the minister or his office before it is released. In the manner in which I just referred to the application I had made to the Department of the Premier and Cabinet and the applications I had made to the Premier's office, that process held up the release of documents, which I was legitimately and lawfully entitled to access, by several months. That is absolutely outrageous. The next recommendation states:

The Act should create offences of improperly directing or influencing a decision or determination made under the Act.

I think the Attorney has sought to address this recommendation at least in making it clear that if a direction has been made with regard to a determination made under the act, then in responding to the applicant it should be made clear (a) that that has happened and (b) who has made that direction.

Having said that, it is not quite correct to say who has made that direction and, more to the point, that the provisions in the bill spell out the position of the person who has made that direction. We have some concern with this, as I will speak about when I go through the bill in some detail, in that that might mean that the applicant is no better off understanding who has actually made that determination.

If we have documents that are or are not released to applicants, if we have determinations that are made to applicants that merely cite the position of the accredited FOI officer, it might well be that those determinations are signed off by either an accredited FOI officer or even the principal FOI officer of an agency. Where there is more than one accredited FOI officer, it could leave the applicant nonplussed as to who has made that determination, and that is relevant if there is to be an internal review of that decision.

It is also relevant for the agency if there is to be an internal review of that determination because initially it will make it difficult, or more difficult than it needs to be, for the agency to determine which of their accredited FOI officers dealt with that particular determination. It also makes it correspondingly difficult for the Ombudsman if they are to consider an external review of that determination. We find unnecessary the needless anonymity that the government's bill attempts to impose on accredited FOI officers or principal FOI officers. The recommendations continue:

Agencies should publish their FOI information statement on their website.

I think most agencies do that in any event. The next recommendation states:

The Chief Executive of the agencies should promote information disclosure and issue a written directive to all staff about the need for compliance with the objects and operation of the FOI Act.

It is my recollection that most of the chief executives with whom I have worked tend to do that in any event. Recommendation 29 states:

All of the agencies should, as a matter of policy, provide on their website:

the postal and electronic addresses to which access applications may be sent

the telephone number of an FOI officer

a link to an access and internal review application form

links to the FOI Act and State Records of South Australia

details of external review and appeal rights, and a link to Ombudsman SA and/or the Police Ombudsman (whichever is the relevant review authority) and the District Court.

I think that some, if not all of that information, is usually disclosed on the relevant sections of agency websites. Perhaps some of those do not link to the FOI Act and State Records of South Australia, nonetheless that is at least a practice which is, as far as I am aware, partially implemented by the majority of government agencies. Recommendation 30 provides:

Information disclosure initiatives should be enshrined in legislation, to harness the strength of legislative force and to capture local government councils, universities and other agencies which are subject to the FOI Act.

However, this should not interfere with proper access being provided outside of the FOI Act and other legislation. Prescribing information that should be released in legislation can create a culture of risk aversion when providing access to information through administrative schemes.

This also bears some reflection in that we have a recommendation from the former ombudsman that information disclosure initiatives should be enshrined in legislation, and we already have some of that in the current act. We have an addendum to that through the Deputy Premier's bill in introducing the regime of proactive disclosure.

Unfortunately, aside from establishing the principles of proactive disclosure, the actual information that should be proactively disclosed is to be left up to the premier of the day determining a policy setting that out. So we do not have a legislative basis for what actual information must be proactively disclosed by government agencies. The rationale for that from the Deputy Premier might well be the second part of that recommendation, that is:

Prescribing information that should be released in legislation can create a culture of risk aversion when providing access to information through administrative schemes.

With all due respect to the former ombudsman, I am not sure I agree on that point. It is important for legislation to set the bare minima of information that should be released. If it is not set out in legislation, then you can bet that agencies will not go one millimetre further than they are legally obliged to.

That is unfortunate. I can say that with some confidence because agencies do not even go as far as the current act requires of them. I think to expect them, out of the generosity, openness and transparency of their hearts, to go further than what we would prescribe as a minimum in the act is fanciful. The report goes on:

Performance agreements of Chief Executives and senior management in the agencies should contain a provision requiring a responsibility to ensure appropriate practices and performance in respect of access to government-held information, including FOI.

Of course, none of us would know whether or not that is happening because the government does not publish chief executive contracts or performance agreements online. I think that is a shame. The former chief executive of the Department of Planning, Transport and Infrastructure, who was summarily sacked after the 2018 election at some cost of half a million dollars to taxpayers, used to publish his contract on the DPTI website and was entirely relaxed about his performance agreement and the remuneration he received being available to the public.

That is not shared by other chief executives across government, nor is that information readily available. I agree with the ombudsman that this should be a requirement, as there should be a requirement that chief executives meet all of their legislative obligations in the conduct of their duties. The second to last recommendation, you will be pleased to hear, Deputy Speaker, is:

After the passing of the amendment to the Civil Liability Act…Chief Executives in the agencies should issue a memorandum to all staff explaining the consequences of the amendment and the protections described by the Attorney-General in his second reading speech.

The memorandum should also emphasise that the FOI process is a last resort option only.

For full disclosure, I will have to admit that I am not immediately familiar with the context to which that recommendation refers. Perhaps that is something that the Deputy Premier might be able to better describe, given that it referred to a bill that both she and the former member for Enfield carried in the parliament.

I am sure the Deputy Premier will be capable of giving us some insight, at length, about how that came to pass, as well as its import. Given it is a recommendation by the former ombudsman with regard to amendments to this act, it would be useful for us to hear about that. The final recommendation, sir—which you have been waiting for on the edge of your seat—is:

There should be an independent oversight body with investigation, audit and recommendatory powers to:

issue FOI guidelines

ensure public awareness of FOI legislation

give FOI advice and conduct FOI training for agencies

address complaints about the FOI process

monitor and audit agencies' FOI performance

conduct merits reviews (with determinative powers)

recommend administrative and legislative reform

report to the parliament on the operation of the legislation

This body should also be responsible for the oversight of state privacy policies and legislation.

We do not have that arrangement at the moment. We do not have an independent body within the Public Service that does that; however, I do recall that the ombudsman released an extensive report on agencies' operation of the FOI Act. I am not sure whether that was done of the ombudsman's own volition or whether it was done at the request of the government in an effort to respond to this particular recommendation.

However, you can see that there is a broad range of issues with the operation of the act canvassed by the ombudsman in that report of May 2014. With that in mind, it is perhaps worth reflecting on how the Deputy Premier seeks to address those concerns as well as issues that she may have identified with the operation of the act.

As others are aware, and as the Deputy Premier I think has commented to the house, there has been a consultation process for the development of this bill. It has been a consultation process which invited submissions across the public sector and, indeed, I think also from the public as well. I would hope that the submissions made to that consultation process have been adequately reflected in the contents of the bill before us. We do not know this, of course, because as I mentioned in my earlier remarks, we did ask for some details of those consultation submissions. In fact, we put in an application under the FOI Act for those submissions and a determination was made by the Attorney-General's Department not to release those documents.

Oh, the irony: that we—legislators as we are in this place—would not be trusted with the information from the public consultation in order to amend the bill. Without access to whatever submission the Ombudsman might have made publicly, and without access to those submissions which had been made presumably by agencies and members of the public, we are really flying blind in that respect. We have to refer back to what we do have publicly from the Law Society, from the consolidated submission from the media and also from the former ombudsman in his report of May 2014.

The Deputy Premier's bill unfortunately does not get off to a flying start when it comes to amending the act in the interests of providing a greater transparency and disclosure of documents to applicants. I am not referring to the first three clauses which, at least in my view, remain relatively uncontroversial, but more the fourth clause of the bill which is the substitution of sections 3 and 3A, which in the current act are the objects of the FOI Act. They are drawn deliberately broadly, and in being deliberately broad they of course seek to promote that access to government documents and access to documents held by agencies should be made as openly available as possible.

Unfortunately, what we have here is an attempt in this to be overly specific and, even in being overly specific, also preclusive of certain documents. In that regard, I am referring to the astounding removal from the objects of the act of a reference to promote openness in government and accountability of ministers of the Crown. I would have thought that we would all recognise that that is pretty important to leave in the act, and so I find it gobsmacking, to be honest, that the Deputy Premier would seek to deliberately remove that particular element of the bill. I think that speaks volumes about this government's approach to openness, to transparency and to accountability. With that, I seek leave to continue my remarks after the break.

Leave granted.

Sitting suspended from 17:59 to 19:30.

The Hon. S.C. MULLIGHAN: It is a pleasure to resume my contribution on the Freedom of Information (Miscellaneous) Amendment Bill. Just before we were required to pause in the house's consideration of this bill, I was making some remarks about the contents of the bill insofar as they relate to clause 4, which is the substitution of sections 3 and 3A of the act, which relate to the objects of the act and the principles of administration. I made some remarks that early on in section 3 of the act it was an object to promote openness in government and accountability of ministers of the Crown. Those words are specifically deleted in the Deputy Premier's bill. That is nothing more than a watering down of the objects of the act.

To deliberately remove a reference to ministers of the Crown—and also I should say it removes the reference to members of parliament and their access to government documents and access to information—I think says a lot about what the intent of the government is in amending the act. It is a watering down of the public's right to access government documents and to access information. This is the first substantive clause where we see the government continue in what I would regard as its quest to flee scrutiny, accountability and transparency in its operations.

There can be no justification for the removal of the reference to ministers of the Crown. Even the insertion of what is proposed in the bill at new section 3(1)(a):

(a) that representative democratic government is supported and enhanced by ensuring that proper public scrutiny of government activities occurs;

I am not sure that that is accurately reflective of the tenets of the of the Westminster system. We have representative democracy, the process by which a small number of citizens of the community are elected to a parliament in order to respectively represent the views of each of their electorates. Then we have the concept of responsible government, where ministers of the Crown are responsible to the parliament for the operations of government. With regard to this blend in the clause proposed by the Attorney, that is:

that representative democratic government is supported and enhanced by ensuring that proper public scrutiny of government activities occurs—

we do not have a representative democratic government in those respects. What we have is a government that should be held accountable to the parliament and, in turn, accountable to the community through the tenets of responsible government.

I realise what the source of the words is, and that is, I think, the same report from which I was quoting earlier—the May 2014 Ombudsman's report. But the inclusion of it, to the exclusion of a reference to both ministers of the Crown and to members of parliament being able to access documents, is something that should not be supported by this parliament and should not be supported by members in this house.

When I first started my comments, I gave the member for Heysen—ruing as he was the number of amendments that had come from the opposition—for the benefit of the member for Heysen, a member of the moderate faction of the Liberal Party, some history of the freedom of information legislation. In fact, it was one of the splitters from the conservative party to the Liberal movement, Martin Cameron, who had taken up the cudgel that was formally wielded by the former Labor attorney-general Christopher Sumner in pursuing freedom of information legislation. I thought he might find it interesting that it was a former moderate Liberal member who pushed for this legislation to be established.

But in providing that history, I also spoke, as is my wont, at some brief length about the delay between the election of the Bannon government in the early 1980s, succeeding the Tonkin Liberal government, and legislation actually coming into effect for a freedom of information regime, which of course did not happen until the early 1990s.

What had happened in those intervening years? You only need to look at the media reports during that period of the 1980s to realise that it was—and these are not my words but the words of the reporters of the time—the Sir Humphrey Applebys of the Public Service in the 1980s, including representations from the Public Service board, who were complaining about the concept of a freedom of information regime and how onerous it would be for them to adhere to.

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: I am happy to suffer the slings and arrows of the member for Bragg for the offences of ministers allegedly caused more than 30 years ago, but even that might be a bow too long to be drawing at this stage of proceedings. But it was certainly the representations from the Public Service board and certainly the rationale provided during the 1980s that this was something that was being resisted by the Public Service at the time.

Whether it is the exclusion of references to the ministers of the Crown or the preclusion of references to members of parliament and the access to documents that they should be afforded under the act, what we see in the remainder of the bill is a substantial pushback from what are clearly the interests of the agencies who will be responsible for administering the act as it may be amended subsequent to this bill.

I think that is a very poor reflection on the government that they have chosen this opportunity rather than make good those complaints and concerns that they had previously raised in this place, whether it was about the lack of punishments for interference within the FOI determination process or whether it was for some of the other changes that the Deputy Premier championed when she was in opposition. Rather than just see those, what we see is a very substantial watering down of the FOI Act.

Moving to the other parts of clause 4 of the Deputy Premier's bill, it includes that the objects of this act are also to authorise and encourage the proactive public release of government information by agencies. That should be supported broadly and is supported by the opposition. It was the former Labor government that introduced proactive disclosure in South Australia—a regime, I should note, which has been watered down by the current government. Apparently, they deem it a security risk to reveal after the fact where ministers stayed while on ministerial travel.

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: How topical that we should be talking about ministers' reluctance to reveal where they stayed while claiming travel expenses or allowances. It is, no doubt, something which will continue to be pursued, not just by the media across the state but by the opposition, in subsequent question times during the course of this week. The Deputy Premier interjects and says, 'Well, it was the police commissioner's advice.' This is the advice that has never seen the light of day—

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: —it has been tabled, has it?—that we should never reveal the location at which ministers have stayed, overseas or interstate, after the fact of them staying there. It would be a security risk to those ministers, wouldn't it, if someone, for nefarious purposes, wanted to visit that location many weeks after the minister had already vacated that site. I mean, please—really?

When it comes to the proactive disclosure regime that the government speaks of or attempts to impose within this bill, all we see are a number of principles. We do not actually see a requirement to disclose particular types of information. Instead, it is up to the Premier of the day; a curious inclusion because, as far as I am aware—and I am happy to be corrected by the Deputy Premier—the Freedom of Information Act is assigned to the Attorney-General, not the Premier. So I am not quite sure why this particular task would be assigned to a premier, but it would be up to the premier of the day to determine a freedom of information proactive disclosure regime policy to apply across the public sector.

That actually mandates less than what we have today, which is a freedom of information proactive disclosure regime that applies to certain types of documents and certain types of information. Notwithstanding the concerning security risk of declaring where ministers had been several weeks ago, we are also expecting to see from agencies a declaration of other travel and accommodation expenses. We are also expecting to see mobile phone costs and a range of other expenses incurred, particularly by ministers and their officers in the conduct of business.

But we do not see that actually spelt out here, and that is why, amongst the disconcertingly voluminous amendments that have come from the opposition for the benefit of the member for Heysen, we say, 'Let's actually countenance a proactive disclosure regime that sets out what those documents should be.' It would talk about the types of expenditures, for example, that should be disclosed publicly and regularly. The Deputy Premier's bill does not do that. All it requires is that some policy be promulgated from time to time by the premier of the day.

Of course, it is entirely feasible that there may be a premier—it could even be this Premier—who decides that their policy is not to proactively disclose anything above and beyond that which is already required of the unamended act, and would that not be a poor outcome? Given this government's reluctance and fear to engage in openness and transparency, I do not think it is too long a bow to draw when it comes to this area. Can we trust the current Premier to come up with a fulsome and detailed proactive disclosure regime that would put all these things on the public record?

It is actually in the interests of the Public Service at large, let alone the public of the state at large, that we do have a very detailed proactive disclosure regime because the vast majority of freedom of information requests are seeking the very information that a proactive disclosure regime, properly implemented, would identify and would place, for example, on a government website so that all people can see it. It would obviate a large number of freedom of information applications for agencies across the Public Service.

Surely that is in the interests of both the government of the day and the ministers in charge of their agencies, who are constantly under pressure to find efficiencies and savings. Surely it would just be easier, rather than having to increase their staffing and resourcing of their freedom of information staff and units, if they could just proactively disclose all this information. The need for dozens and dozens if not hundreds of applications seeking out the same information could be thwarted.

If we look at clause 5 of the bill, the amendments to the interpretations of the current act, these proposed changes, are also quite far reaching. I draw your attention to subclause (4), where the current definition of a document is expanded quite significantly, rather than what we have currently in the act:

document includes—

(a) anything in which information is stored or from which information may be reproduced;

That is a very broad set of parentheses. It is deliberately designed to capture as broad a range of document and information as could possibly be conceived. In this instance, I do not actually doubt the intentions of the government in seeking to amend that definition. I suspect that the intentions of the government here are to be a little bit more contemporary in how the definition of 'document' is put in the act. Rather than the definition I just read out to you, the proposed definition includes:

(a) anything in which information is stored or from which information may be reproduced—

which we have just had, and—

(b) information stored in an electronic form by means of a digital data storage device;

This might be a bit esoteric for some members, maybe even for the Deputy Premier and those opposite, but the question that the opposition has and that I know some members of the crossbench in both places have is: is this actually an expansion of the definition of 'document' or an inadvertent contraction? Are we being unfortunately too prescriptive in outlining information stored in an electronic form by means of a digital data storage device? Does that inadvertently preclude some information or document types that might otherwise be captured in the course of a document search pursuant to an application under the act? That is something that we are concerned about.

When we look at subclause (6) of that clause, it comes to changing the definition of 'personal affairs', indeed deleting the definition of 'personal affairs' and replacing it with a new definition, not of personal affairs but of personal information. This might seem like hairsplitting to the casual observer but, unfortunately for those of us who are frequent flyers when it comes to freedom of information applications, there is an ongoing and constant effort by agencies to frustrate freedom of information applications and the release of documents by virtue of spurious applications of exemptions for documents that contain what they see as being personal affairs.

On the face of it, we can all agree, broadly speaking, that documents containing information about the personal affairs of someone by and large, you would think, should not be released. I think we can all agree on that, but the way in which it has actually been interpreted by agencies is to exclude documents, or to include documents but redact information that they deem to be personal affairs but is actually personal information.

This is a theme and common thread we see throughout this bill, where, for example, names of individual freedom of information accredited officers are no longer to be provided to applicants but, instead, just the generic position title. But also we see determinations where we have the names and desk numbers, for example, of public servants, which are redacted from documents which are to be released. There is external review after external review, which has been conducted by the Ombudsman, which deems that this is inconsistent with the act or this is an incorrect application of the exemption provided for in the act. This is really not only an incorrect application of this part of the act but an extraordinarily resource-intensive and time-consuming incorrect application of this part of the act.

If you have, for example, put in a freedom of information application to an agency and let's say a couple of dozen documents are identified that fall within the scope of the request, and are otherwise under the other provisions of the act not exempt and able to be released to the applicant, then quite commonly—not in all agencies, I should add, but just in some agencies, and I can point to, for example, the current Department of Planning, Transport and Infrastructure that seems to enjoy doing this—they go through every single document and remove the name, the desk telephone number (not that that is usually of any interest to anyone anyway) and email address of people who may be the author, the recipient or, in some other form, contributor to a document.

The Ombudsman has repeatedly made the point that that is an incorrect application of the current personal affairs exemption and the freedom of information staff have incorrectly applied that, thinking that a person's name is information that constitutes their personal affairs and what we see here is an effort to strike that out by the Deputy Premier and replace it with a definition of 'personal information', which I should say, further to the points I have been making here, is 'personal information, of a person, means information or an opinion about the person, where the person is reasonably identifiable'. So, of course, that would include their name, their email address and possibly their desk number.

The Ombudsman has been careful in pointing out the incorrect application of this to make it clear that, for example, if mobile phone numbers are included, say, in the signature block of a public servant, that might be information that should be precluded as information constituting personal affairs because it is not clear to the Ombudsman, to the applicant or perhaps even to the freedom of information officer making the determination, whether that mobile phone is a work mobile phone, a personal mobile phone and so on.

So, for example, it might change, of course, for some ministers but for most of us, if we send out a signature block that includes a mobile phone number, it usually is the mobile phone that we readily answer for work or personal purposes. That is not clear, for example, in this context and I agree with the Ombudsman that it is best to tread carefully. If that information is to be redacted, well then fair enough.

But redacting the actual name of a public servant or redacting the name of anyone who is mentioned in a document, who may or may not be a public servant or third party, is usually found by the Ombudsman, depending on the context, as being a bridge too far. This of course comes back to the earlier point I was raising before the break about the former ombudsman's recommendations about the application of the public interest test and ensuring that the public interest test is not constrained by the findings of the Howard case, which is a famous case used in external review determinations of FOI applications where these matters are usually considered, where personal information, for example, might be released.

That is something that the opposition is concerned about as well because not only does it not meet the spirit or the intent of the current act but it also means in practice that an enormous amount of resources and time is allocated to the making of what would otherwise be a very straightforward determination in needless redactions of what is currently basic personal information. For example, at clause 6 we move on to the insertion of new sections 4A, 4B and 4C, 4A being a definition within the act of 'exempt agencies'—agencies for which the application of the act should not apply due to the sensitive nature of those.

These exempt agencies, on my understanding—and I am happy to be corrected by the Deputy Premier—usually have been longstanding exemptions. We do not have any concern with that, except to say that section 4A(4) of the bill reads:

(4) Subject to subsection (5), if an agency—

(a) is an exempt agency, this Act does not apply to the agency; or

(b) is an exempt agency in respect of particular functions or classes of information, this Act does not apply to the agency with respect to those functions or classes of information.

Subsection (5), which is referenced in subsection (4), provides:

(5) A reference in Schedule 1 to an agency includes an exempt agency or an exempt agency in respect of particular functions or classes of information.

We are keen to know why that is specified in the bill. Does this mean that agencies, which are not completely exempt agencies but are agencies which may have particular functions, for example, which are exempt functions, are deemed to be exempt agencies and hence are not required to have the same supporting infrastructure for the administration of this act? For example, would a principal officer—'accredited FOI officers'—in short, have the capacity to respond to applicants who may or may not be aware of the exempt status of that agency or the exempt functions of that agency?

When it comes to 4B, we have the new section 'Accredited FOI officers' inserted by the government, and this is something that I have been concerned about for some time. In fact, I was even concerned about it at the time when I was a minister. A minister of the Crown is considered to be an agency in their own right, and every agency requires a principal FOI officer under the act. That in effect means that applications that are made to a minister, or to the office of a minister, are then determined by the principal officer of that agency, which happens to be the minister.

You can see the inherent conflict of interest when you have a minister who is making a determination about whether documents should or should not be released to an applicant about the operations or the affairs of that agency, which is the minister and its office. This is something that is addressed in the opposition's proposed amendments to the bill. It provides for a new exclusion of ministers from that role of being a principal officer of the agency. That makes sense because ministers, almost without exception, as far as I am aware, have a department or an agency that is responsible to them.

It is appropriate, and indeed something conceived by the Deputy Premier's bill, that an agency can refer to another agency the responsibility for meeting obligations under the act. For example, this would mean that rather than the Attorney being the principal officer of her agency—the agency of the minister of the Attorney-General or the office of the Attorney-General—she would instead refer or delegate that to another principal officer (presumably, in this case, the principal officer of the Attorney-General's Department) and they would perform that function for the Attorney.

I think that is a more robust regime and inspires more confidence than we have at the moment and we have admittedly had for many years, including under the former government, where ministers were able to sign off on FOI applications that were made to their own offices. That practice is flawed, and in my view and that of the opposition, should most certainly be stopped.

If we then cast our minds to 4C, which is included in the Deputy Premier's bill, this is where we see more of the overt attempts by the government to deliberately restrict the documents which can be released to an applicant—this is the trickiness which is attempted to be inserted into the act by this bill—when a document is deemed to be held by the agency. It states:

4C—When document is held by an agency

(1) A reference in this Act to documents held by or in the possession of an agency is, where the agency is a Minister, a reference only to such of those documents as relate to agencies for which the Minister is responsible.

Ministers are in receipt of all sorts of documents—in particular, minutes from other ministers, for example, talking about issues that might involve the interactions or operations of their respective agencies together. Let's say, for example, the Attorney-General were to write to the Treasurer about a budget issue, a funding issue or an issue to do with the financial management of the Attorney-General's Department.

If that minute were located in the Treasurer's office rather than in the possession of the Attorney-General's office or the Attorney-General's Department, then a strict reading of 4C(1) would preclude that document from being discovered. This would be regardless of whether that document would meet any of the other exemptions provided for under the act. As the old saying goes, possession is nine-tenths of the law; we can see this clause take that to the nth degree.

Unless a document is held by a minister regarding an agency for which they are responsible, the document is not able to be released. That cannot be supported. That would preclude the release of a broad range of documents. I am going to provide a couple of examples where applications made successfully and satisfactorily, after some onerous process of seeking an internal review and then an external review, were finally released. As such, 4C(1) should not be supported. Subsection (3) continues this. It states:

(3) An agency is not to be taken to hold a document while the document is held by or in the possession of an exempt agency for which the agency is responsible.

So an agency that holds a document that might otherwise be released can be deemed to not hold a document if it is currently located in another exempt agency. You could see, for example, in the portfolio area that I am most interested in, the Treasury portfolio, where we have an exempt agency, the South Australian Government Financing Authority, that documents that might just happen to be in the temporary possession of that authority would be deemed not to be released because they did not happen to be in the right or the correct possession at a particular time. Subsection (4) compounds the problems with section 4C. It states:

(4) An agency will only be taken to hold a document stored in an electronic backup system if the document has otherwise been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1997 or contrary to the agency's established record management procedures.

On first reading, there does not seem to be any justification for that. We are now largely at a time when the vast majority of government records are created, transmitted and stored electronically. Even 10 years ago the state government was in the practice of having an automatic backup of its electronic document and record management system updated every night, so you could argue that that would constitute an electronic backup system under this new definition of the act.

What should now be the well-worn practice and a clever way to source and access documents, as initiated as far as I am aware by Rob Lucas of the other place, would be to put in a freedom of information request for any documents that were created by the agency, say, for example, in the Department of Treasury and Finance, between a date range and held within what was then called—I am not sure if it is now called—the objective document management system and that would provide a list of documents to the applicant. It would not provide any further information. It might provide the date of those documents, but otherwise just the title of the documents.

The intrepid applicant, formerly Rob Lucas and now me, would go through that list of documents, look at the titles of the documents and think, 'That's of interest. That one not so much. That one is of interest,' and so on, and then put in subsequent freedom of information applications to access those individual documents.

Our concern is that this inclusion of new section 4C(4) will preclude documents held in that sort of document storage regime from being able to be accessed. If that is the case, an applicant is really going to have to chance their arm in making a freedom of information application so that on the date on which the application is received by the agency—not made by the applicant, mind you, but received by the agency—that document better be there, rather than in the temporary possession of someone or somewhere else, and it better be in paper form rather than be in electronic form.

If there are literal readings of the ways in which these clauses have been drafted, you can see how restrictive this new regime will be for applicants, and that is something that cannot and should not be supported. New section 4C(5) states:

(5) An agency that maintains an electronic backup system on behalf of other agencies is taken not to hold documents stored in the electronic backup system on behalf of those other agencies.

It might be of some use, Mr Speaker, if you will, to cast your mind back to one of the issues of the day back in 2013, when there was child sexual abuse at Largs Bay Primary School. There was an ongoing campaign by the Deputy Premier and those opposite to try to paint the premier of the day, the former member for Cheltenham, as having been aware of this incident and having not done anything about it.

The allegation was based, by the Deputy Premier, on the receipt of an email by members of the premier's staff. There was much discussion, if I can put it so euphemistically, both in this place and publicly, about whether there was any evidence to support the Deputy Premier's allegation that the staff member who had received a notification of the sexual assault had provided that information to the premier.

It went to the point where there was not only a freedom of information application, which of course you would expect, but there was a continual and constant questioning of the Department of the Premier and Cabinet staff, who were responsible for administering the freedom of information regime as it pertained to the premier's office, about what sort of document searching had been conducted in order to try to satisfy the Deputy Premier about the existence or the nonexistence of a document that may or may not finger the premier for having known about this particular incident.

It went to the extent, as far as I can recall—and, again, this is seven years ago or so now—of the manager of the electronic backup system for that daily, every 24-hour backup of not only the document management system and all the documents stored electronically within it but also the email servers that all staff, including staff within the premier's office, used. There was an interrogation of that third-party managed document management system.

A reading of the bill, as introduced by the Deputy Premier, would suggest that that process is now no longer relevant and no longer accessible by an applicant wanting to chase down such an issue to that same degree—which surprises me, or maybe it does not surprise me given this government's approach to openness and transparency. Nonetheless, it is contradictory—oh, it is the member for Unley. It is lovely to have him here. It is extraordinary that we would have—

Mr Teague: Reflecting on a member's presence in the chamber.

The Hon. S.C. MULLIGHAN: I know where I am meant to be when the vote is on, that is all I am saying. I know where I am meant to be. It is what we get remunerated for, remember—being up here and putting my hands up and down. I know you agree; it is just that not everyone seems to.

It seems extraordinary that after pursuing such an issue to such an extent over so many months—including, of course, recruiting one of the parents from the primary school to run defamatory ads about the former member for Cheltenham at that time, who was also a candidate for the electorate of Lee in the 2014 election, I remember—and despite going to that effort, pursuing the full extent of that, and of course finding nothing—

The Hon. V.A. Chapman: Where's Simon now?

The Hon. S.C. MULLIGHAN: Finding nothing.

The Hon. V.A. Chapman: He is hidden away.

The Hon. S.C. MULLIGHAN: Yes—same as the allegation that the Deputy Premier lodged back in those days, perhaps gathering dust—is that the assertion?—that nothing was substantiated, at least the capacity to do that search was available. Well, not under this bill. This precludes it, which I find extraordinary. That is something that we also take exception to.

At clause 8, the insertion of part 1A is the government's attempt, admirable in intent though it might be, to include a proactive disclosure regime within the act. I think in principle this is something that can be supported, not just for promoting openness and accountability and transparency of government activities and expenditures of finite government resources but also because a successful implementation of a proactive disclosure regime would alleviate much of the workload of those staff within the Public Service who are charged with administering the act, receiving and responding to applications.

I am sure we can all agree that a great number of freedom of information applications, whether they are made by members of the public, members of parliament or the media, are to chase down the sort of information that is now, or was previously, released via proactive disclosure. While the Deputy Premier has put principles in here for proactive disclosure, admirable though they are, recognising that documents and information held by government agencies are a public resource and that government agencies—not ministers, of course; they have been removed from the objects of the act—are committed to being open and accountable, engaging with the community and encouraging public participation in the making of decisions, policies and laws, and so on, unfortunately when we get to new section 8B we run out of steam in the creation of this public disclosure regime.

It just requires, really, that the Premier must, consistently with the principles, issue a proactive disclosure policy directing agencies specified in the policy. Here we have a reliance on the Premier to promulgate a policy. It is up to him or her to specify in the policy which agencies are subject to it—not all agencies, presumably, will be subject to it—and that information relating to the agency or held by the agency should be released, that the policy should be published in the Gazette and on the website and that the agency to which the proactive disclosure policy applies must ensure that information is published in compliance with that policy.

Great—but what information? This is where the regime from the Deputy Premier falls down: there is no specification of what should be provided for in this regime. Indeed, the terms used in new section 8B(1), 'to publish information relating to the agency or held by the agency', seem to contradict some of those provisions that we were just talking about earlier in new section 4C—When a document is held by an agency.

Under 4C, a document held by an agency but not necessarily directly relevant to the functions of that agency is not a document that should be released under the act, according to that section of the act, but when it comes to the proactive disclosure policy, published information relating to the agency or held by the agency, regardless of whether or not it is relevant to the agency's functions, should be released. It may be a drafting error, or it may be an attempt in 8B to right the wrongs of 4C. Who knows? Perhaps we will discover that during the committee stage.

Clause 9 of the bill touches again on that topic I was discussing earlier about personal information, particularly 9(1), the deletion of 'personal affairs', which is the removal of the current provision in the act, which I think we can all agree quite rightly ensures that the personal affairs of someone are not revealed in the release of documents; hence, documents that would otherwise do so are not released. That is removed and it is merely about personal information. Presumably, information about the person, including their name, if you go by the way the agencies currently interpret the act, will no longer be provided, but apparently affairs concerning that person can be released—curious, and I am not sure something that should be agreed to here.

When we get to clause 10 and the substitution of the current section 13 of the bill, we start talking about how in different ways successful applications must be made to agencies. If applications are not made in these terms, then the applications can be refused. So, for example, new section 13(1)(a) provides:

(1) An application for access to an agency's document under this Act—

(a) must be in writing and contain such information as is reasonably necessary to enable the document to be identified…

There is a practice, which some but not all agencies adhere to, where an applicant can put in an application for documents which says, for example, that any documents that provide information about the following matters or, for example, again taking an area I am particularly interested in, in Treasury and financial management issues an application might be something along the lines of any documents that provide or show information about the collection of, off the top of my head, stamp duties for the first six months of such and such a financial year. It is likely that there is not a document that is so particularly titled.

It may even be likely that there is no such document that seeks specifically to provide an overview or a representation of stamp duty collections for a six-month period in a particular year. In the past, perhaps not currently, the Department of Treasury and Finance has always countenanced these applications, I guess with a mind to the objects of the act that agencies should always be of a mind to release documents or release information, to the point where they might even create a document which otherwise is not in existence but which provides the very information the applicant seeks. They might interrogate, for example, all sorts of financial records, and so on, about the request in order to create a document to respond to it.

Under the terms of section 13(1)(a), it would seem to preclude those sorts of applications being made. So here we go again: a further constriction of an applicant's capacity to access documents that would otherwise legitimately be accessed under the FOI regime. I think, when we get to subsection (2)(a), this is something I can speak about from personal experience. It states:

(2) If an application—

(a) is for access to documents received or produced by an agency, or part of an agency, during a specified period of time; and

(b) does not provide further identifying information about the documents,

the application will not be taken to contain sufficient information for the purposes of subsection (1)(a).

After the last election, after the allocation of ministerial responsibilities and, subsequent to that, the allocation of shadow ministerial responsibilities, of course recognising that there is a longstanding practice where the incoming government briefs are not released under freedom of information application, certainly the former opposition tried and I think the current opposition has tried—I need to be rebuffed—I wondered, for example, how other applicants have attempted to access these documents.

I put in a request to the Department of Treasury and Finance for all documents that had been provided by the department to the Treasurer's office for the two working week period from 19 March 2018. You may recall, Speaker, that was the Monday straight after the state election, when I think the Premier, the Deputy Premier and the Treasurer were the first ministers sworn in before the remainder of the cabinet ministers were sworn in later in the week. So it was that Monday to the following Friday.

In due course, a response came back from the accredited FOI officer from the Department of Treasury and Finance that said the request was too broad, that it would capture thousands of documents. That was in fact a conversation not had with me in the first instance but with one of my electorate assistants in the Lee electorate office who then referred the matter to me. I had a conversation with that FOI officer, and I said, 'Well, what do you mean there will be thousands of documents? Documents going from the Department of Treasury and Finance to the minister in a two-week period?'

There may be a dozen or a couple of dozen documents but I cannot imagine a thousand documents. I said, 'Surely before you contacted me or contacted my office there must have been some cursory search, some preliminary research, to try to provide you with some information which would enable you to make the assertion that there would be thousands of documents captured in this very brief 10 working day period at the outset of the new government's term.' 'Oh, well, strictly speaking,' came the response, 'that would also include all the emails that are going to and from the minister's staff with the setting up of email accounts, notwithstanding the temporal and practical difficulties of sending an email to someone who does not yet have an account, and so on'. I said, 'Okay, fine; I will refine the application,' and did so, which is provided for under the act.

I was then provided with a determination saying that my application captured too many documents. It was far too broad, too onerous for the department to respond to, and so the determination was that the application was effectively to be denied. I thought it was curious because I am interested to know what sort of document search would have been undertaken. In my recollection, when freedom of information applications are made, the accredited FOI officer receives the application. They may make an electronic search of documents which might fit the search terms in the application, and then it is usual practice, as far as I am aware, for that officer to send out an email to people who may be in possession of any documents which might meet the terms of that application.

That is pretty orthodox. That is pretty normal and regular, I understand. I go back to my earlier comments about receiving a determination from the minister as the principal officer of the minister's agency rather than from the department, so the inherent conflict between the minister determining an application into their own office, of course, becomes apparent.

I sought an internal review, had no joy and I thought, 'Well, perhaps what I will do is I will put in an application about the determination process of that application.' In response, eventually I got a swathe of documents back. That showed to me, as far as I could determine from those documents, that there had not been any search made in any substantive way to determine that the terms of the application I had made were indeed for an onerous number of documents that would take too much time and encapsulate too many resources of the department.

It almost seems as though subsection (2) has been specifically drafted to ensure that that sort of application cannot be made. You might think, 'Well, member for Lee, you were just fishing, weren't you? You were just trying to see what documents were served up between the department and their brand-new minister in the first two weeks of a government.' Yes, that is true. That is what most members of parliament do with the vast majority of freedom of information applications.

There might also be times when it is important in the pursuit of a particular issue of public importance or of community interest to try to ascertain exactly what documents did come into the possession of either an agency or a minister so that particular information or particular types of documents can be seen to have either been received or not received, depending on the issue at hand. Subsection (2) would specifically preclude that sort of application. Why should people not be able to apply for access to a range of documents within a particular time frame? I do not think that is unreasonable.

Let me raise the other circumstance to which I alluded before the break and that was the extraordinary decision of this government to award a $42 million taxpayer-funded loan to the Stadium Management Authority for the hotel at Adelaide Oval. This was a source of considerable community consternation and a source of considerable consternation amongst the hotel industry, particularly to those people who had done the right thing, worked hard, saved their money, built a relationship with the bank and got financing for their own investment objectives, only to be trumped by the cosy relationship between members of the Stadium Management Authority and the newly elected Liberal government.

Of course, it is of interest to see what documents came into the Premier's office, for example, in the particular time frame when this matter was being considered. The way in which the freedom of information application was dealt with was nothing short of extraordinary and obvious in its attempts to completely thwart my attempts, and the attempts of other applicants, to legitimately access documents that should be released to the public through these sorts of applications.

On placing the application to both the Premier's office and the Department of the Premier and Cabinet, as it got close to the time these determinations were due within the 30-day statutory time period, suddenly there were large document releases to the Adelaide Advertiser before information was released to the applicant. Members might recall, for example, the publication of stories by select journalists about Project X, a project which dare not speak its name within the Premier's office or the Premier's department or within the Department of Treasury and Finance.

Those documents, that information, were deliberately released to the media before being released to the applicant. Would it normally be the purview of public servants and accredited FOI officers to strategically place this sort of information into the media before it gets into the hands of an applicant? No, of course not; that is a political decision, a media management decision made by the likes of political staff employed by a minister's office. That is clearly what happened here. You may recall, Mr Speaker, that the Project X announcement, the Adelaide Oval Hotel, was made in late November 2018.

As I have said, and as I just said, if the Stadium Management Authority, off its own back, was to go and build a hotel within its existing footprint, then knock themselves out, go for it. All power to them. Why would they not create more money-making opportunities so that they can provide for a more financially stable and successful outfit down there at Adelaide Oval, to their credit just as they have done with the roof climb, to their credit just as they have done with the cafe there—I cannot recall off the top of my head whether or not they charge for access to the Bradman Museum but, to their credit, as they have done for all those sorts of endeavours.

In fact I even supported—and supported by my own hand in writing—their attempts to get the more substantial development of Adelaide Oval No. 2 up, which was thwarted by the Adelaide city council and which eventually saw the development of the Karen Rolton Oval. I attended the Midnight Oil concert at Adelaide Oval No. 2 and it was fantastic; it was terrific. The tobacco smelled a bit different from what I was used to, and maybe that contributed to it, but a good night was had by all.

Those sorts of commercial enterprises—big tick, no worries. Our objection was to a secret, clandestine, walk-up start that the deputy chair of the SMA, John Olsen, former Liberal premier, had with the Liberal government for a taxpayer-funded loan of $42 million to the exclusion of the remainder of the hotel industry.

When I put in these applications, not only was the information released to the media before it was released to me as an applicant but there was also a large number of documents that were not released at all. Those documents, some of which were correspondence and documents created by the Stadium Management Authority, had been deemed by staff managing the freedom of information application process as needing consultation.

What we then saw was a long process of frustration where the Stadium Management Authority, outside legislative strictures of the act, was provided an ongoing opportunity to respond to the consultation process about whether they had any objections to any contents of the documents or the documents themselves being released to an applicant.

By this stage, there had been a determination, there had been an internal review and an application made to an external review. The Ombudsman was so concerned about the conduct of this particular determination that a meeting was convened between staff of the Ombudsman, me as applicant and the freedom of information officer from the Department of the Premier and Cabinet, who was responsible for managing the determination.

At that meeting that was held at 45 Pirie Street, it was revealed to me by that freedom of information officer that for a long period of time, the determination that was to be released to me as the applicant had been sitting in the inbox of the Premier's chief of staff, the now federal member for Sturt, James Stevens.

This determination to the application I had made had sat there gathering dust on former chief of staff James Stevens' desk. That is not how the process is meant to work. That is something the former ombudsman specifically made reference to in his report of May 2014, and in the months and months that were afforded to the Stadium Management Authority for consultation over what they deemed 'commercial information', they deliberately dragged their heels.

If it was not for the select committee on the redevelopment of Adelaide Oval, we would never had understood why they dragged their heels so much. Because as it turned out, we were told by the Stadium Management Authority's own banker, the Commonwealth Bank, that they had actually been offered a commercial loan. Sure, the Stadium Management Authority had to put up a deposit, but that deposit had already been considered and approved by the SACA board and, we understood, also by the SANFL board.

When the then chair of the Stadium Management Authority was asked why, after having been offered a loan by the Commonwealth Bank on commercial terms, it was rejected and instead they went with the strategy of pursuing a loan with the state government, the response was, 'Well, if you can get a 100 per cent loan from the state government then why wouldn't you?' I find that astounding—absolutely astounding. No wonder the Premier's office did not want that information coming out.

Some of the other information that did come out—and we are talking between 12 and 18 months after the application; that is how long it took to get an answer out of the Premier's office and the Department of the Premier and Cabinet about this controversial project—included emails between the Stadium Management Authority and the Premier's own media adviser about which journalist this drop should be given to, to give it the most favourable coverage.

I am not sure that any journalist would like to be considered by a political staffer to be someone who is more or less likely to do the government's bidding when it comes to reporting on a government initiative, but that just gets back to that issue I was raising earlier about the factors favouring disclosure or not favouring disclosure about it being embarrassing to the government. That is one of the worst determination processes I have ever witnessed, I have to say. It was a deliberate campaign of obfuscation and deterrence by the Premier's office.

I feel for the relatively young accredited freedom of information officer who, if you put yourself in their shoes, probably just thought they were doing the right thing by following the wishes of the Premier or, at least as had been communicated to him, the Premier's office. You can see how easily compromised these processes are when people seek to impose themselves in the determination process. So clause 10 of the bill—the replacement of section 13 of the act and the new section 13(2), is something that cannot be supported at all.

Looking at clause 11, I am sure it is no surprise to the government that parts of clause 11 will not be supported by the opposition, particularly clause 11(2), which changes the 30-day statutory time period for determinations and increases it by 50 per cent to 45 days. At this point you have to start asking the question: who is this bill designed to assist?

Is it designed to assist the government of the day? I think we are starting to build up a pretty compelling case: removal of references to ministers of the Crown, relying on a coincidence of timing of application and physical location of documents to ensure that a document is entitled to be released in response to an application, the restriction of applications which merely seek types of information rather than accurate descriptions of documents, the restriction of applications which are for documents sent or received or are in possession of within a particular time frame and now an increase of 50 per cent in the time taken for making a determination under the act. I mean, please.

We see red-tape reduction bills which do not actually reduce red tape for the community, for example. They reduce red tape for the bureaucracy and they do not change anything for the community. This is even worse. This increases the amount of time by which agencies have to make their determinations.

I go back to that issue I raised at the outset of my comments on 16 June and also at the outset of my comments after the break this evening, and that is the staunch resistance of what was then the view within the Public Service of introducing a freedom of information regime, because it would be too resource intensive, too time intensive, require too many staff, etc. Now we see the attempt by the government, rather than better resourcing the freedom of information effort across the public sector, to slow down the determination of applications to make life a bit easier for those departments. That cannot be supported. If we do not maintain the requirement of a determination within a month or thereabouts of 30 days, surely we are effectively running up the white flag on the Public Service's efforts to make these determinations.

However, it gets worse. We currently have a regime within the act that allows for an extension of the time limit, that 30-day period if, for example, there are extenuating circumstances for the agency. We see amendments to section 14, which currently provides that the principal officer of an agency that is dealing with an application may extend the period within which the application would otherwise have to be dealt with under section 14 if satisfied that the application is for access to a large number of documents or it requires a search through a large quantity of information within a period that would unreasonably divert the agency's resources, or the application is for access to a document in relation to which consultation is required under division 2.

That is not unreasonable. That is longstanding. That is something that we are all used to. However, we have additional provisions now. We have new paragraphs (c) and (d). Paragraph (c) reads:

(c) the agency is dealing with an unusually high number of applications under this Act and does not have sufficient resources to deal with the application within that period;

There are a few issues here. First of all, who makes the determination that there is an unusually high number of applications? Who makes the determination that the agency does not have sufficient resources to deal with this? Of course, does this not provide the incentive for the government to deliberately remove resources from those areas of agencies that are responsible for this particular function?

Why would you not, for example, leave only one accredited FOI officer? Why would you not, perhaps under this provision, only have a principal officer for the agency and not have anyone else? When even a small clutch of applications are made, then the agency can point to this new provision and say, 'Sorry, I just do not have the resources to deal with this. We are just going to have to blow out the time limits.'

I refer back to that practice which was initiated by the member of the Legislative Council, Rob Lucas, where searches are made for documents within the objective system within a particular time frame. Determinations are made for a list within that time frame and then subsequent applications are made for individual documents specifically with those titles which were provided for in that initial determination. It is very orthodox and quite common, at least within that particular department, and presumably in other departments.

But what that is now used as is an excuse to delay the determination of all applications, saying that the volume and the quantity of these applications is such that it would unreasonably divert the agency's resources when, of course, the opposite is true. The application is so specific for the accurate title of a particular document that it is a relatively small amount of work, a relatively easily achieved task, to respond and determine that application in short order. Now that is to be made even more difficult for applicants with a determination that there is an unusually high number of applications and so on. Even more concerning, though, is new paragraph (d), which reads:

(d) the agency is dealing with a number of related applications under this Act (whether involving the same applicant or applicants who are acting in concert in connection with those applications)…

Who on earth makes this determination that separate applicants might in fact be acting in concert with one another? It is not inconceivable, for example, that there is a broad range of people, whether members of parliament, members of the community or the media, who are all separately of their own volition inquiring about a particular issue and seeking access to particular documents or particular types of documents and doing so in a similar time period.

For example, there may be a rush of applications to the Premier's office and to the Minister of Transport's office about communications between the Premier and the Minister for Transport about the claiming of country members' allowances. Under this provision in this bill, it would not be beyond the agency to say, 'Clearly, all of these different people, all these people within the media, people in the opposition and people who may just be interested as members of the community, they must be acting in concert with each other. They must all have a common interest in this. They are all searching for ostensibly the same or similar types of documents and to respond to all of them would unreasonably divert the agency's resources.'

That is something we cannot countenance, unless of course the Deputy Premier has some very persuasive examples of how these agencies have been letter bombed by applicants for access to documents, but I doubt that is the case—I very much doubt that is the case. Clause 13 of the bill, by and large the insertion of new section 14B, massively narrows the availability of documents to applicants. Subsection (1) provides:

(1) The obligation of an agency to provide access to documents in response to an application is limited to documents held by the agency when the application is received.

I mean—really? So if somebody makes an application on a particular date, even if they transmit that application on a particular date—for example, there are many agencies that have online application portals—if that application is made but is not deemed to have been received by an officer until some later date, then the search for documents is at the time that the agency deems that it received that application.

Please do not be fooled into thinking that when applications are made, particularly electronically, they are automatically received and recognised as such by agencies. I have certainly made applications electronically on one particular day, only for those to be determined to have been received by agencies a day or a number of days after that electronic lodgement. What that might mean is that, in the effluxion of time between the making of the application and its submission to the deemed receipt of that application, those documents may well have moved on from that particular agency.

As we have seen from the earlier definitions that the Deputy Premier is seeking to include into the act, you really have to chance your arm under this new regime. You make an application and you pray it gets there at a particular time when those documents just happen to still physically—not electronically, physically—be in the possession of the agency. Subsection (2) provides:

(2) An agency must undertake such reasonable searches as may be necessary to find any of the documents applied for that were held by the agency when the application was received.

This comes to the fundamental question about what is a reasonable search. What is an adequate search for documents by agencies under the act? Subsection (3) states:

(3) The agency's searches must be conducted using the most efficient means reasonably available to the agency.

An agency might deem that a thorough search might not be the most efficient search. An agency might deem that the most efficient way to search for a document is to send an email out to other people, a quick task rather than, for example, trying to establish where the physical documents might be held by an agency within the premises of that agency and going down to have a look for those physical documents personally. If that is not deemed the most efficient way to search for documents then those documents will not be thoroughly searched for. So we are also greatly concerned with subsection (3). Subsection (5) provides:

(5) An agency is not required to search for documents in an electronic backup system unless the agency is taken to hold the documents in that system by virtue of section 4C(4).

If you go back to new section 4C(4), it states:

(4) An agency will only be taken to hold a document stored in an electronic backup system if the document has otherwise been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1997 or contrary to the agency's established record management procedures.

This goes back to the issue of what constitutes an electronic backup storage system when, today, most documents are stored electronically and automatically backed up on a daily basis. Does the interrogation of that daily backup, the backup that might be determined at a particular date, allow it to be or not allow it to be discoverable for the purposes of making such a determination? That really is a significant restriction of the availability of documents under the act. If we move further on to subclause (2):

(2) Section 17—after subsection (6):

(7) A request for an advance deposit (or for a further advance deposit) under this section is a determination for the purposes of this act.

My understanding of that clause is that, by virtue of it being a determination, it is appealable as a determination either to an internal review, an external review, or so on. What I am concerned about, though, is does that also satisfy the determination in terms of the currently 30-day but soon to be 45-day, if the Deputy Premier has her way, statutory time period in which determinations should be made?

In clause 15 of the bill, the capacity of agencies to refuse to deal with certain applications, we start to see further reference to this concept of an agency being:

…entitled to consider 2 or more applications (including any previous application) as the 1 application if the agency determines that the applications are related and are made by the same applicant or by applicants who are acting in concert in connection with those applications.

On the face of that, you can see where that would be reasonable. If two people presumably from the same political party or two members of the community from the same community or interest group separately, independently and inadvertently make an application on basically the same terms for the same types of documents, making a single determination and then furnishing that determination to the applicants is not unreasonable.

The concern is the use of this provision by the government or by officers to preclude access to information by other applicants by deeming them as being somehow connected to others. There does not seem to be any definition around or any consideration around how those determinations are to be made. It is solely up to the discretion of the agency. Paragraph (2ac) states:

If an agency determines that more than 40 hours of work is likely to be required in dealing with an application, it will be taken to be the case that the work involved in dealing with that application would substantially and unreasonably divert the agency's resources for the purposes of subsection (1).

We would be interested to know how the 40-hour limit was determined. On the face of it, 40 hours, being more than the standard Public Service 37½-hour working week, seems to be a significant amount of time.

If an accredited FOI officer sends an email out to a large number of people within an agency—say, several hundred people—asking them to do their own document search, is that a cumulative effort by all those hundreds of people undertaking that cursory email and perhaps hard copy document search within their own offices? If a few hundred people spend even less than 10 minutes collectively, does that substantiate the 40 hours? That would serve to rule out a great number of applications and hence determinations under the act.

It is clause 15(3) that is even more interesting, and that is the insertion of the concepts of 'frivolous or vexatious' applications.

There being a disturbance:

The Hon. S.C. MULLIGHAN: I see I am not the only one who thinks so. The concern is who makes the determination that it is frivolous or vexatious and on what basis and how is that decision to be substantiated?

Over the page in the bill we see some further preclusions of applications. On the face of it, new subsection (2b) seems to be reasonable. You do not necessarily want people using the act to obtain documents that they should otherwise be obtaining through other means, for example, trying to obtain information which would otherwise, I assume—I am happy to be corrected here; the Deputy Premier is more practised at this than I am—be about wanting to have their own document discovery process for the purposes of some form of court action by attempting to use the act. I understand that.

We have some questions about how it would apply. For example, would it apply to court transcripts, because court transcripts in many cases may or may not be released when people make requests of the relevant court? In subsection (2d) we have, I think for the third or fourth time, this concept of applicants acting in concert and there are no reasonable grounds for believing the agency would make a different decision on the application. These are matters of judgement which basically go to the issue of whether agencies will now have the capacity to prevent applications being appropriately determined by virtue of these new provisions.

What will, I am sure, be of great interest to people who usually make applications is the insertion of section 18A—Vexatious applicants. The Ombudsman may declare someone a vexatious applicant, which is not unreasonable in itself because it is conceivable that there would be people who would seek to abuse the process, and not just abuse the process in terms of wanting to access lots and lots of government information either from the same agency or from lots of different agencies, they might engage in the application process in order to genuinely frustrate the agency or even genuinely frustrate an accredited FOI officer or a principal officer of the agency. I think that is understood; however, we do have some concerns about subsection (3), which states:

(3) An applicant may be found to have repeatedly made applications for the purposes of subsection (2) whether the applications were made to the same agency or to different agencies.

That is interesting because if, for example, a member of parliament—who might be charged by their political party with the responsibility of maintaining, for example, government accountability—places a series of applications to a wide range of agencies seeking, ostensibly, the same types of information from those agencies, that may well meet the terms of subsection (3) that an applicant has made the same applications but to different agencies. I would hope in that case the Ombudsman would see how those applications have been made and interpret appropriately the intent of why those applications have been made. Subsection (5) provides:

(5) A copy of the declaration must be given to the person as soon as practicable.

I would be more comfortable if it were provided to them within a specific period. Subsection (8) reads:

(8) The Ombudsman may publish—

(a) a declaration and the reasons for making the declaration; and

(b) a decision not to make a declaration and the reasons for the decision.

That is presumably on the basis that there has been an application by one or more agencies to have someone declared as being vexatious. We would have some concerns about whether the person has the capacity to make their own representations to the Ombudsman to plead their case before that declaration may be published publicly, otherwise somebody who is seeking to use the freedom of information regime legitimately may be inappropriately or inadvertently declared vexatious under these terms and publicly named as being so while they have not had the chance to argue their own case.

In clause 17 we see another attempt by the government to change the statutory 30-day time limit to 45 days. I made some reference before about the attempt in this bill to try to provide some guidance in agencies who are making determinations about whether the release of a document is in favour of the public interest or not, and five examples are provided by the Attorney in clause 18—curiously only five, not more than, and curiously not examples where documents will be released against the public interest.

To the Attorney's credit, just including examples where the public interest is served by the release of documents would tend to give the impression that the intent of the Attorney is to promote the release of documents, but if you weigh up the number and breadth of these five provisions compared to, say, what was provided for in the other place in earlier debates on bills seeking to amend this act by the Hon. Mark Parnell, he went to some considerably greater detail. Indeed, not that I was a plagiarist, but I have plagiarised—

The Hon. V.A. Chapman: Somewhat.

The Hon. S.C. MULLIGHAN: —almost completely, if we are being honest. I think the Deputy Premier is being generous to me there by saying 'somewhat'—but certainly, in this instance, I have plagiarised the good work of the Hon. Mark Parnell in the other place in putting in as many factors favouring disclosure when it comes to applying the public interest test or not against the release of documents.

In clause 19 we had some concerns about subsection (1)(c) of the new section 20, which is to be inserted into the bill. The new section reads:

(c) if it is a document that—

(i) was not created or collated by the agency itself; and

(ii) genuinely forms part of library material held by the agency;

On the face of it that seems pretty reasonable. If somebody is seeking documents that may end up as published reports by federal government agencies, for example, the applicant could have their attention better directed to the websites of those agencies and find that information there.

I think that where this does raise concerns is, for example—and I know this is a very specific example—for the past 20 years, the South Australian Department of Treasury and Finance has been a lead agency with genuinely nation-leading experts on the application of the goods and services tax in South Australia. The Deputy Premier may recall that the member for West Torrens and I recently spoke on a matter of indulgence about the passing of former Treasury official Rob Schwarz, who was the national expert not just on the GST but specifically on the application of horizontal fiscal equalisation in the application of the GST.

This seems like a yawn-worthy subject to contemplate, particularly at this hour, but it is particularly important to the state's finances. It requires, for example, that South Australia, in line with other smaller jurisdictions in the commonwealth, receives commensurately more GST revenue than what its population might generate. This is so that we have the capacity to provide the same level of services as can be provided anywhere else in the country.

Mr Schwarz and other Treasurer officials, including those still working in the Department of Treasury and Finance, have long provided advice to governments and have developed and maintained a library of material about the GST and horizontal fiscal equalisation. These are important documents, not just for South Australia but for the nation.

Those documents would perhaps be considered historical and could form a library of information for the Department of Treasury and Finance. If access to those documents were to be denied on the basis that it is part of a library of material—I am not talking about those documents provided by Mr Schwarz as an employee of the agency, because that would satisfy new subsection (1)(c)(i) in that clause. I am talking about other perspectives, other papers and other submissions provided by people around the country about HFE, which are important to consider for the state's positioning on that issue.

In my view, yes, that sort of information could be considered to be a library, but by virtue of that it should not necessarily be excluded from release by the terms of that clause. We would be interested to hear from the Attorney during the committee stage as to the intention of the application of that element of that clause, and whether the drafting of the clause reflects that intention. According to subsection (2):

(2) An agency must refuse access to an exempt document referred to in Schedule 1 Part 1 and may refuse access to any other exempt document.

That is a very substantial change from the current act. Overarching the current act is the encouragement that agencies are able to release documents even if they are determined to be exempt by provisions within the act. Of course, they do not have to release those, otherwise they would not be exempt, but they are able to. This again calls into question the issue of the public interest test. Here we have a very specific clause that says the agency 'must refuse access to an exempt document' referred to in that schedule. As I hastily flick through the current act, my recollection is that that schedule refers in the early parts to cabinet documents.

While I have spoken at some length about the misapplication of some parts of the act, for example regarding personal affairs and so on, it is certainly the case that the provisions of clause 1 under schedule 1, part 1, Cabinet documents, subclause (1)(a) through to (f) are, in my experience, frequently misapplied by agencies. I can say this because I have external review after external review from the Ombudsman that set out how the agencies have incorrectly applied this.

What we have here is a fundamental change to the act that says that all those documents categorised in that part essentially must not be released. We have further changes coming up where we contemplate a change in the reach of the act from the state government into local government to ensure that those documents are not able to be released. That change in the act is quite significant, and to remove the discretion of an agency to release those documents I think is a poor move.

I can give two examples, which I briefly mentioned in an earlier contribution on this. It is the practice of the federal government, both the Prime Minister and the Treasurer, as well as particular line ministers, to communicate with their state government counterparts around the country about initiatives in the federal budget released on federal budget night that are relevant to either their governments, for example in the case of the Premier or Treasurer, or to particular portfolios, and I refer to, for example, the Minister for Transport and Infrastructure.

There might be a fairly broad letter from the Premier saying, 'The budget that we have released tonight does X, Y and Z.' The correspondence to the Treasurer will do that in more detail and, in particular, set out, for example, the quantum of the payments from the commonwealth to the state for particular purposes.

When it comes to communication from the federal Minister for Infrastructure to the state Minister for Transport and Infrastructure, it will set out all the payments the commonwealth is making for projects that are jointly funded by the commonwealth and the state or, indeed, just solely funded by the commonwealth through the state. That is of keen interest because we have had claims by this current government here in South Australia since the last state election that record amounts of funding have been budgeted for by the commonwealth for upgrades to the north-south corridor.

I will not go over the information that I previously regaled about how patently untrue that has been. Certainly, promises have been made, but funding allocations unfortunately have not made good those promises, so it has been of keen interest to me and to the opposition to understand what is in that communication. Those documents certainly exist.

For example, certainly with the Minister for Transport and Infrastructure there is a covering letter from the federal minister and then there is a schedule or a large table of all those projects and initiatives for which the state will receive commonwealth funding, both broken down by the total amount, the amount that has already been expended, the amount that is due to be expended in the current financial year or in the subsequent financial year, across the forward estimates and beyond the forward estimates. You can see how that is of key interest when the opposition is trying to find out how much money is actually allocated, for example, to upgrades to the north-south corridor.

Those documents have been located by agencies in response to FOI applications and they have been refused to be released to me as the applicant. The claim usually is that perhaps these are cabinet documents because the information in that correspondence is used to provide information to cabinet about what is in the federal budget for South Australia, or they are exempt documents communicated by another government—for example, because they have come from the commonwealth they contain information from an intergovernmental communication to the government of South Australia—or a council.

We have pursued these applications through the internal and then external review process and on both occasions, for the application made to the Minister for Transport and Infrastructure and to the application made to the Treasurer, the Ombudsman has indeed found that some of those provisions have been incorrectly cited as reasons to refuse access to a document. In the end, the Ombudsman has varied those agencies' determinations and required that more documents be released.

Even if an officer thought that those documents genuinely met the terms of schedule 1 of the act, then they could make a determination, for example, that, 'Well, perhaps it is not 100 per cent clear that these are entirely exempt under the terms of either clause 1 or clause 3 under schedule 1,' or they might think that it is in the public interest to release those documents, and in fact that is precisely what happened with the application to the Minister for Transport and Infrastructure.

After the budget was released in May 2018, it took until the end of 2018 for the agency to say, 'Well, do you know what? Most of the information is out there in the public anyway, so we're just going to release the documents. The period of time has progressed so much that this information is now presumably of less immediate interest and so there's no harm in releasing the documents to you.' That is specifically precluded under the terms of clause 19(2) of the Deputy Premier's bill, that is:

(2) An agency must refuse access to an exempt document referred to in Schedule 1 Part 1 and may refuse access to any other exempt document.

I think that is a retrograde step. I do not think that enhances transparency or improves access to government documents at all; in fact, it does the complete opposite. This serves to put beyond any doubt whether any of those documents considered in that schedule, whether they are documents under clause 1 regarding cabinet documents or clause 2, Executive Council documents, which ostensibly, on the face of it, you would stomach not getting access to.

However, when it comes to clause 3—Exempt documents communicated by another government, and clause 4—Documents affecting law enforcement and public safety, then there are judgements that need to be made by agencies, but by virtue of the wording of that provision in the bill there is no discretion for the agencies to release them. That is something that we cannot support. When it comes to clause 20, a new subsection (3a) is to be inserted in the act's section 22:

(3a) If giving access to a document in accordance with an application will disclose to the applicant information that the agency reasonably considers is outside the scope of the application, the agency may delete the out of scope information from a copy of the document and give access to the document by giving access to a copy of the document with the out of scope information deleted.

This practice of redaction of documents is widespread, and I seem to glean from external reviews that I have received back from the Ombudsman that it is certainly not his purview to instruct that parts of documents can be released that are deemed to be in scope and that orders can be made for redactions of what an agency might deem to be out of scope.

I am not sure that the current act provides for a regime of redacting partial documents either. I look forward to that discussion in the committee stage, because what in practice it would mean is the very time-intensive process of an officer going through all of the documents that might meet the terms of the application and choosing to redact as much as possible that is deemed to not accurately match the scope of the application rather than just release the entire document, which meets the terms of the application but which may also include information that does not meet the terms of the application.

You can see the appeal, from the government's perspective, of ensuring that as much information is redacted out of documents as possible. For example, I have had determinations come back that have subsequently gone through the external review process to the Ombudsman, where information had been redacted by an agency, which was redacted not because it was out of scope but merely because the contents of those portions of the documents were embarrassing to its authors or embarrassing to the government.

That is no reason to have such redactions of documents that would otherwise be released. It is not consistent with the objects of the act to say that these documents are a public resource and should be publicly available, and it seeks to further encourage the practice where agencies look for any possible excuse to reduce the amount of information that can be released to an applicant, which is clearly contrary to the objects of a freedom of information regime.

It is not clear under clause 21, which seeks to amend section 23 regarding notices of determination, why 23(1)(b) is being deleted out of the act. Currently, the regime provided for under section 23 of the act is where an agency has to notify an applicant in writing about the details of a determination. That is extremely useful for applicants, and by and large can often appropriately discourage the applicant from seeking further information or appealing the issue to internal review.

It might say that a thorough search has been conducted and no documents found, or it might say, 'Well, we've found some documents which we think might suit the terms, but these are all exempt documents because all we can find, for example, is a cabinet submission and a cabinet agenda.' Well, fair enough, you are not necessarily going to pursue that, but starting to reduce the amount of information provided in a notice of determination, that 'if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document', I am not sure what purpose is served by the deletion of that section.

In subclause (2) we have the removal of the name of the officer who is making the determination, and I am not sure why. I am not sure what security risk is inherent in the accredited FOI officer making their name known to the applicant in the making of a determination, because under the changed countenance in the bill we would only have the designation of the officer. We really only have two types of officers in play here: we have a principal officer of the agency, which by definition there can be only one; and, then, we have accredited FOI officers, of which there can be multiple.

So, if an applicant or indeed the Ombudsman is seeking to consider further the determination, and it is merely signed off by an accredited FOI officer with no further information, then it becomes a process by which the Ombudsman, through the agency, needs to go back and interrogate the document management system with reference to the file number, for example, to see who managed the file, and so on, so that, if there is to be an internal or external review, that can be pursued accordingly.

I am not sure why the bill continues to try to remove the names of people involved in making these determinations. Perhaps it is similar to the advice we have received by the Deputy Premier, that the locations of hotels in which ministers stayed several weeks ago the police commissioner has provided advice that that is a security risk to those members. Maybe it is the same; maybe the police commissioner has said that there is a security risk to accredited FOI officers if they should reveal their name to an applicant. I would be interested to hear if that is the case.

Clause 21(3) may actually be quite helpful for the applicant and for the Ombudsman, and that is, I think, judging by how it is drafted, providing some form of schedule of documents that have been discovered, released or not released, deemed exempt, etc., for the benefit of the applicant. That is very useful. This is a variable practice across different agencies. Some agencies provide a reasonable amount of information in their document schedule: the date of the document, the title of the document, the author of the document and, in some cases, even the file number of the document. That enables a clear understanding for the applicant and also, in the event that there is to be an internal or external review, for the reviewer of these documents. In clause 22 of the bill we see the deletion of subsection (1) under section 25. The new subsection reads:

(1) This section applies to a document that contains matter concerning the affairs of a council (including a council constituted under a law of another State) or any government (whether of Australia or elsewhere).

I understand this to be a section of the act that refers to consultation rather than just exemption of documents. Certainly, I have another very, very longstanding freedom of information determination, which has been pursued to internal review and now external review, where it seems there are documents in question about communications between the government and a foreign government, whereas the current act is only written considering governments from other parts of the commonwealth. This application significantly broadens the current application to include a council or any government, whether of Australia or elsewhere.

Mr PICTON: Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

The Hon. S.C. MULLIGHAN: I am grateful to have the opportunity to continue my brief remarks. The application to any government, including from other governments outside of the Commonwealth of Australia, then provides for an unreasonable opportunity for access to documents to be delayed. That is unfortunate because you could imagine, if there is a document that references or has some information concerning a foreign government—the process that a government agency would have to go through to consult with that government—what sort of reception that might get.

Clause 23 seeks to amend this notion of personal information away from personal affairs. I do not think that is reasonable in the context of the current act. One of the areas where the act does require the disclosure of regular information is for disclosure logs to be provided, and by and large that practice should be continued, supported and made more robust. We look forward to testing those amendments with the Deputy Premier.

Then we have the rather substantial changes when it comes to objections and the amendments to the internal review process. Here we have further provisions about the statutory time periods being changed in favour of the agency rather than the applicant. Again, these changes are being made in conjunction with those other amendments sought by the bill where access to documents is restricted either by design or inadvertently and again seeks to make the access to documents more onerous, more time consuming and more difficult for the applicant.

If we look at clause 25—the amendment of section 29 of the act regarding internal reviews—at subclause (3) we have the change to the 14-day period for internal reviews to a period of 20 days. That is not quite the 50 per cent increase we had for the statutory period for the initial determinations, but still an increase of over a third. Then we have the capacity for the principal officer of an agency to extend that period by a further period of up to 14 days, and importantly, if they are satisfied that the application relates to a large number of documents.

In practice, what we see is principal officers in some instances making determinations that massively extend the period of time that the agency has to determine applications. Certainly, I have had Rob Lucas as the principal officer of the agency of Treasurer write back to me and extend time periods for nearly an additional six months. He has done so not on the basis that applications have been made that seek to uncover large numbers of documents or would require detailed, onerous types of searching practices, but on the basis that it would collectively provide him and his agency more time to make these determinations.

Of course, by ensuring that there is such a significant period of time that passes between the time in which the application is made, bearing in mind that applications are made on a basis that there is some contemporary interest in a particular matter for which access to documents is sought, delaying access to those documents, putting off determination periods by several months or longer, ensures that the currency of the information contained in those documents is no longer, and that is a subversion of the intents and objects of the act.

We have a change under clause 26, where we see the attempted change from personal affairs to personal information of the person. Again, it may be the intent of the government to make application of these measures within the bill more restrictive, to put it beyond any doubt that certain information about a person or their affairs is released.

However, by supplanting the current definition of personal affairs in the bill, it may inadvertently have the opposite effect, where information about their personal affairs is able to be released but personal information about that individual—their name, for example, or email address—is no longer to be released. If you look at how the current act is worded about documents affecting personal affairs, you can understand what the intent is and why the parliament has arrived at that wording.

Application for amendments of agency records perhaps goes back to one of the earliest needs for a freedom of information regime, and that is for those individuals who are seeking access to information they understand is held about themselves by a government agency and also seeking to ensure that only correct information is held by that agency. It is not unreasonable that the Deputy Premier would have a regime to provide for that to occur, and to occur in a timely manner but also in a manner where the applicant has to provide evidence of their identity and, in doing so, prove that their identity has some relevance to the information they are seeking access to.

Under clause 28 we see the attempt by the government to blow out the time frames, the statutory time frame for a determination from 30 days to 45 days. In clause 29 there is another change to 45 days. Again, we would consider this to be a pretty retrograde step when it comes to watering down access to government documents. In clause 33 there is also an increase in the 14-day period to 20 days.

With the changes to the external review regime by the Ombudsman considered by clause 34, we have a deletion of relevant review authority replaced with just the Ombudsman. If that is the case, if we are going to consolidate these responsibilities within the Ombudsman, then it might be worth reflecting that we previously had a call from the current Ombudsman for more resources from the government so that the Ombudsman and their office is able to adequately discharge their responsibilities.

We have the Ombudsman who is responsible for external reviews under the Freedom of Information Act. We also have the Ombudsman who is responsible for conducting investigations as referred to them by the Office for Public Integrity. We also have the Ombudsman who is responsible for managing complaints made about public servants or Public Service agencies, and also the Ombudsman who has a responsibility for conducting investigations into Public Service agencies or conduct within Public Service agencies.

So, if there is additional responsibility to be piled onto the Ombudsman, then I think there needs to be some discussion about to what extent greater resources are going to be provided to the Ombudsman to enable him (or in the future, presumably her) and the office to conduct these responsibilities.

Then we get into the detailed provisions of clauses 34 and 35 regarding external reviews by the Ombudsman and reviews by SACAT, and the role that the Ombudsman plays, for example, in reviews to SACAT and the treatment of information which may be available for information that has been previously considered either by the agency or by the Ombudsman prior to it being considered by SACAT. Most substantially, clause 35(2)(4) provides:

(4) In proceedings under subsection (1) or (2)(a)—

(a) the agency will be a party to the proceedings; and

(b) the Ombudsman will not be a party to the proceedings but is entitled to be notified of the proceedings; and

(c) SACAT may, of its own motion or on application by the Ombudsman, require the Ombudsman to make written submissions to SACAT in relation to the proceedings.

Bearing in mind that an applicant must traverse the external review process by the Ombudsman before proceeding on to a consideration by the SACAT, and if very specifically the Ombudsman is not to be a party to those proceedings, that does a couple of things. One is in determinations made in external reviews where the agency's determination is varied and presumably more documents are to be released. There is also the situation where you have a sole applicant, maybe a member of the community who is trying to get access to this information pushing it all the way through. I seek leave to continue my remarks at another time.

Leave granted; debate adjourned.

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