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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 8 April 2020.)

Mr TEAGUE (Heysen) (16:49): Mr Deputy Speaker, I thank you for giving me the call and the opportunity to rise and to make some brief remarks in commending the bill to the house. The Freedom of Information (Miscellaneous) Amendment Bill 2020 is a thoroughgoing reform of freedom of information law in this state. It perhaps does it a disservice somewhat to describe it as a miscellaneous amendment bill covering, as it does, really quite wideranging and core matters going to the subject of freedom of information and the principles to be applied in the context of freedom of information and its interaction with government in this state.

It might better or colloquially be termed the 'freedom of information reform bill'. Its contribution to updating the legislative framework for this state is significant and I might say overdue. I will say a little bit more about that in a moment. I know we are not permitted to overly use visual props in the house, but perhaps just to illustrate I might paint a word picture. We see a relatively thoroughgoing reform bill before us that the Attorney has brought to the house. It comes after what has really been a pretty sorry history of inaction again by the previous Labor government. They had 16 years during which time we saw the advent of all sorts of technology.

We saw the advent of the widespread use of electronic communications and the increasing take-up in institutions of online facilities and all the benefits those technologies bring, many of which gradually came to be in use in this state, no doubt thwarted to whatever degree by the heavy weight of the previous administration, but nonetheless made their way through into common use. They provided an opportunity for reform and particularly in this space to make it possible for people to interact with the freedom of information environment in a more up-to-date way.

Notwithstanding that, we saw very longstanding inaction by the previous government, so it is somewhat surprising that, as I stand here, as I lift in my left hand a copy of the bill and hold—

The Hon. S.C. MULLIGHAN: Point of order: unfortunately, the member for Heysen is making a display to the house.

The DEPUTY SPEAKER: He did give fair warning of that. He made note of the fact that it is not usual to use a display. In fact, just a day or two ago I was reading the latest edition of Erskine May and it touched on this very topic. The Speaker at the time ruled that a member should be able to make adequate description with his words. I am paraphrasing there, but that, in essence, is it.

Given that, I have given the member for Heysen some latitude. I understand the point he is trying to make, but I suggest he may have used his display for enough of this contribution.

Mr TEAGUE: I thank you for your guidance, Mr Deputy Speaker. Perhaps I might better illustrate this in a way that might stand the test of perpetual record on Hansard to say that I have, according to my examination, documents that are printed on roughly the same kind of paper and are of similar weight. In my left hand, I have 29 pages—

The Hon. S.C. MULLIGHAN: Mr Deputy Speaker, I rise on a point of order. There is now clear defiance from the member for Heysen to your most learned ruling, sir.

The DEPUTY SPEAKER: Here is my thought on this, member for Lee: he is not actually using the display.

The Hon. D.C. van Holst Pellekaan: He's using his words.

The DEPUTY SPEAKER: He is using his words.

The Hon. S.C. MULLIGHAN: He is waving them around like a windmill, sir. Some of us are worried about the effects of windmills.

The DEPUTY SPEAKER: He is making a comparison. Member for Lee, I am not going to find in favour of that point of order, but I have given the member for Heysen due warning.

Mr TEAGUE: The bill runs to 30 pages. I have a bundle of amendments that are provided under the name of the member for Lee.

Mr Boyer: Under the name?

Mr TEAGUE: Yes, under the name of the member for Lee.

The DEPUTY SPEAKER: In the name of the member for Lee.

Mr TEAGUE: Yes.

Members interjecting:

Mr TEAGUE: They are.

The DEPUTY SPEAKER: Can I just interrupt for a moment, member for Heysen. Member for Lee, I understand you are going to be making a contribution shortly. You will be making a most extensive contribution and you will be uninterrupted, I am sure, as the lead speaker. Now that we have discussed the use of props or otherwise, we will let the member for Heysen continue.

Mr TEAGUE: Thank you, Mr Deputy Speaker. I think they are showing signs of fragility on the other side. Suffice for me to say that the government bill runs to 30 pages of eloquently and precisely expressed material that I commend. I have a bundle of material before me in the name of the member for Lee that runs to a full 14 pages.

The Hon. S.C. Mullighan: Only 14? It should be 16.

Mr TEAGUE: There is a separate sheet as well. It might be 14 or 15 pages. It does remind me—

Members interjecting:

Mr TEAGUE: No. Whether it is 5 per cent, 10 per cent or 15 per cent, it relies on—

The DEPUTY SPEAKER: Member for Heysen, I am sorry to do this; I am going to interrupt again. The same chapter of Erskine May also makes reference to the use of copious notes. It is generally accepted. It is noted, but generally accepted.

Mr TEAGUE: I think there must have been a very similarly lengthy consideration that the member for Lee went to in thinking about how one goes about setting an appropriately high regulated asset base when one is considering how one can go about charging South Australians more than they ought to be charged for water in this state—those unfortunate customers of SA Water.

It is directly the result of what has been described aptly in this house over recent days, and which I think bears substantially more scrutiny, as 'the cooking of the books' in that respect by the previous government with a view to charging South Australians over the odds for water. It is something that we have promptly got to grips with and got on top of so that we can reduce that burden to South Australians, and South Australians will see much lower water prices as a result.

The DEPUTY SPEAKER: Member for Heysen, we have canvassed this during question time. I am going to bring you back to the bill at hand.

Mr TEAGUE: And the bill in both hands as it was. The point that is being made is that we have had years—

Members interjecting:

The DEPUTY SPEAKER: Order!

Mr TEAGUE: —and years of development in this area, yet nothing has happened until the new government has come along and the Attorney has brought to this house this important reform, this important Freedom of Information (Miscellaneous) Amendment Bill of 2020. It certainly goes about a thorough updating of the legislative environment in line with changes in technology that have taken place over those years, and I have referred to one or two of them in my earlier remarks.

Those developments have been applied, sadly, interstate. Jurisdictions have taken the opportunity to apply those changes, and so I suppose we have the advantage of being able to refer to those in bringing this reform to the house. But, as I say, it has been far too long. The review that took place last year, a consultation draft of the bill, preceded public consultation, and the bill that is now before the house followed the results of that public consultation.

A number of key changes that are the subject of the bill are, firstly, that it will enshrine principles of freedom of information as they relate to their role in facilitating and ensuring good and accountable representative democratic government in this state. They will enshrine proactive disclosure. They will reinforce presumption in favour of disclosure, as well as enforcement provisions, so as to ensure that documents can be obtained, including by the Ombudsman, and they will create an offence of improperly interfering with the making of a decision, relevantly, under the act.

They will also—and I have reflected on this earlier—update the act to reflect electronic communications and electronic information management and storage methods. They will ensure, in circumstances where there are increasingly large volumes of material on the electronic record, an extension of the time for agencies to deal with requests and internal reviews respectively with a view to thereby minimising the number of laps around the block responding to deemed refusals and so forth.

The Freedom of Information Act has been in operation in this state since 1992, and we have seen from time to time amendment that has occurred in the time since then. As I characterised this bill at the outset, we have seen over the journey that there have been changes that have resulted from concerns raised by members of the public and media and members of parliament from time to time in a rather sporadic fashion.

This bill takes an overall view in terms of its updating of the legislative environment, and it responds to what we have seen as growing demands within the community for increased government transparency and accountability. The last very significant round of changes was in 2004, I am advised. We have obviously seen the better part of a generation of development, particularly on the information management side, in the period since then.

I note in particular we have seen the report of former ombudsman Mr Bingham on the broader environment, his 2014 report titled, 'An audit of state government departments’ implementation of the Freedom of Information Act 1991 (SA)'. The report essentially was an analysis of how 12 government departments were going about managing their responsibilities under the act. The 2014 report contained a number of recommendations for amendments. Those, I am told, are fully endorsed in turn by the current Ombudsman, Mr Wayne Lines.

I was perhaps rather general in my introduction to that unfortunate history of inaction in remarks at the outset. Against that background of an act that has been on the books for the better part of 30 years but, more particularly, has not seen really comprehensive reform for 16 years or so and is the subject of a considered report by the relevant officer going back now many years, it is really a source of some disappointment that there has not been a greater appetite, particularly by the former government, to act on that, and so I am very pleased that we are where we are now and that we are moving on those reforms.

There might be more to say about this in what I anticipate might be a next stage. It is not clear whether or not the opposition wants to press any of these amendments but, in the event that there is a committee process and the amendments are considered, there may be an opportunity to delve into this in some more detail.

I simply draw attention in this short period of time that remains to a comparison between the first of the principles and objects of the act, which is the subject of clause 4, in what would be the new section 3(1)(a), which is really quite a succinct statement of principle. It provides:

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

I could not put it better or any more succinctly than that. The mover of the amendment would put it in a somewhat more verbose manner and, in my view, an unnecessarily Orwellian manner, but we might hear about that some more in the committee.

Suffice it to say, that is the core principle and objective for which the act is there. It is appropriate that the act is updated in this generational way in the way that it is. As I have said, it does it, in my view, somewhat of a disservice to describe it in the way it is. It might better be described as the 'freedom of information reform bill', which I commend to the house.

The Hon. S.C. MULLIGHAN (Lee) (17:09): I rise to speak on the Freedom of Information (Miscellaneous) Amendment Bill that has been moved by the Deputy Premier. How extraordinary that we have the member for Heysen criticising another member of parliament for filing amendments to a bill. This is one of our key responsibilities as members of parliament. If it was meant as some sort of whack, it had all the impact of a ball of cotton wool touching carpet.

We are getting used to that, of course, from the member for Heysen, but he would do well to pay some attention to the contributions that are to be given by the opposition on this bill. While he very quickly glosses over the history of the Freedom of Information Act in South Australia, it actually has a very important history and a history that is very demonstrative of how we see freedom of information laws not only enacted but applied in South Australia.

It is my understanding—I will not say recollection because some of this occurred before I was even born—that in 1977, I think, a working party was put together under the former Dunstan government and a keen interest was shown in this by a then member of the other place, the Hon. Chris Sumner. That had been done not only presumably because some members, including Mr Sumner, were keen on the concept of freedom of information laws being enacted here in South Australia, but because there had been movement in that regard in other jurisdictions, notably in New South Wales, and there had been movements towards those efforts in the commonwealth as well.

It was done primarily, but not by a great distance away from other objectives, because it was recognised that a citizen of a society should have access to and an understanding of what information was being kept about them by their government and also, of course, because that citizen should have the capacity, under certain constraints, to be able to correct that information—not any information, of course, but information that that citizen would rightly be concerned about.

We are not talking about altering necessarily police records or court records or things of that nature, although in some instances that may be necessary or attractive, but in general that was a key principle. Not too far behind that was what we now are perhaps more familiar with about freedom of information laws and that is being able to get access to documents of government to try to gain better access to, understanding and even participation in the decision-making of government.

But the journey from that working party in the late 1970s to 1991, when the bill was passed and assented to, was not just, as the time period indicates, a long and tortuous one. There was of course the fact that not only had the working party completed its work and provided its report only some months before the 1979 state election, but at that state election there was a change of government and the Tonkin government was formed. The Deputy Premier opposite me probably is able to recall much more quickly than me, let alone accurately, who the attorney was in that Tonkin government.

The Hon. V.A. Chapman: Trevor Griffin, of blessed memory, as they say.

The Hon. S.C. MULLIGHAN: Of course, the Hon. Trevor Griffin, then of the other place and who I think was the attorney during the subsequent Brown government as well, albeit for a relatively contracted time in government for the Tonkin administration. Despite ongoing requests and, later, demands through the parliament and also the media from Mr Sumner, there was no progress made on the introduction of freedom of information laws during the course of the Tonkin government. Of course, in 1982 there was a further state election. The government changed again to the Bannon Labor government, when Mr Sumner found himself in the position of attorney-general and had the capacity to move relatively quickly to bring about a freedom of information bill into parliament and have it enacted as law.

So you might be asking yourself, Mr Deputy Speaker: what happened between 1982 and 1991? There was genuine work and genuine attempts during the course of the early and mid-1980s to bring these laws to fruition, but you only need to cast your mind back to some of the media reports of that time to see what some of the literal frustrations of this process were. We had reports from the government of the day that there were dire warnings from the Public Service that having a scheme of freedom of information would be too expensive to administer. It would be unwieldy; it would be an unreasonable diversion of resources, which of course is a term with which those of us who have applied for freedom of information requests have no doubt become familiar; and so on.

The Sir Humphreys of the day did their job for a number of years in frustrating the desire of those in government, indeed those in parliament, to see these laws brought about. However, Mr Sumner was not the only person in the other place who had a passion for this. The Hon. Martin Cameron had a passion for this. I believe that, during the term of the Bannon government, he was leader of the opposition in the Legislative Council as well as health minister. He moved at least one if not two private member's bills to try to engender a freedom of information regime. Of course, as you might expect, there were disagreements between the government and the opposition over the nature of those changes, intervening state elections during that time, and no progress was made.

I raise that issue of that strong advice coming from the public sector—that this would be too expensive or unwieldy to manage a new freedom of information regime—because that has some relevance through to today not just with the administration of the current act but, I am sure, as the member for Heysen alludes to, in response to some if not all of the opposition's amendments. Yes, it is a comprehensive bill—30 pages long—and, yes, the opposition has filed pages and pages of amendments because this bill requires it. This bill needs amendment.

I do not question the intent of the Deputy Premier in moving this bill. She herself in opposition moved a private member's bill to amend the Freedom of Information Act. It was not quite as extensive as this bill, but it is certainly an indication that the Deputy Premier then, as she does now, had a very keen interest in this matter. I come back to those early principles of ensuring that a citizen has the capacity to access information that a government holds about them, indeed, have the opportunity to correct that information as well as the opportunity to gain access to documents of government to understand the operations of the government, the decision-making of that government, and so on. Now more than ever, perhaps, the freedom of information regime is extremely important in South Australia.

I said that the member for Heysen might be interested in this because the Hon. Martin Cameron—you might recall this, Deputy Speaker, and probably much better than I—was one of the three members of parliament who formed the Liberal Movement. He not only joined that movement, along with Steele Hall and Robin Millhouse, but continued to seek election and continued to be elected. Eventually, those members of the Liberal Movement—I cannot remember after which election; I think there were five members of parliament at one point, rather than just the three who commenced it—were welcomed back into the fold of—

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: Yes, that particular practice is—how shall I put it—an old-fashioned practice in the current context.

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: I think, if I can put it like this, perhaps some attorneys are more worthy than others, and that is not a reflection on whether any current or recent attorneys are worthy to be on the bench. However, perhaps the public consent for that sort of behaviour might be slightly less these days than it was previously. Although, as an aside, I notice that it is not uncommon in the federal sphere for these sorts of moves still to be made—but that is a digression.

In any event, it was on the welcoming back to the fold that these Liberal Movement MPs came back into what became, and is now, the moderate faction of the Liberal Party. I think it is a reasonable thing to say that small 'l' liberalism is reasonably reflected in the pursuit of a freedom of information regime. Why should citizens not be free to know what their government holds about them, let alone free to know what their government is doing in other regards, and be able to have access to documents that demonstrate that?

Once the laws were assented to in 1991 and came into operation on 1 January 1992, there commenced for the first time a freedom of information regime here in South Australia. The act has been amended a number of times, more often than not as other acts have been amended, but in its own regard it has been amended a number of times—in 2004, 2006, 2008, 2012 and so on—albeit most of those were relatively minor amendments, compared to the breadth of the changes either here or in 2004. It is interesting to note that a broad sweep of changes was sought in 2004, approximately two years or so after the 2002 election; and here we are in 2020, approximately two years or so after the 2018 election.

I would have hoped that the freedom of information changes that we are seeking in this bill would reflect a genuine correction of those current problems that South Australians experience with the current regime and would also perhaps try to identify some ways to appropriately open up the freedom of information regime and also perhaps try to provide some capacity for freedom of information applications to either be obviated—for example, through what we see in the bill here with the consideration of a mandatory disclosure regime—or be made in a way which makes navigating the freedom of information process easier for applicants. This is regardless of whether they are one-off applicants, such as members of the public who have a particular interest in information about themselves or a particular issue.

As we saw from the extensive report produced by the Ombudsman in 2014, unless one is practised as a freedom of information applicant, the process is almost unanimously successful in putting off people who find themselves rebuffed for whatever reason. Certainly, my experience with the freedom of information regime has been from both sides. In the first instance, I was the minister responsible for an agency that was in receipt of a large number of regular freedom of information applications.

These requests were not just from opposition members who had an interest in transport matters but also from members of the media who were trying to seek departmental information on matters in which they had a particular interest, as well as from members of the public for a whole variety of reasons—whether they had a general interest in transport matters or a particular experience in the transport system as a user, or whether they were regulated by the transport agency.

I could not tell you with any reasonable estimate how many applications were submitted and dealt with—although these sorts of statistics are sometimes regaled in departmental annual reports. It was certainly very usual that freedom of information applications and determinations were made completely separate from ministers, unless a minister found themselves as principal officer of the agency or office of the minister and was then obliged to make determinations. I always thought that was a very strange way in which the act operates.

I can understand that it is desirable to have ministers as agencies so that people can access documents that are relevant to ministers. Of course that is important, but making the minister the principal officer of the agency then creates this perverse arrangement, which continues to this day, where the minister can make determinations about applications for documents about themselves or their office as that agency of the minister.

There is an inherent conflict of interest there, particularly when applications are coming in from members of parliament—perhaps opposition members of parliament—to the minister, or coming in from the media, or coming in from members of the public who may disagree with the minister's superintendence of their portfolio responsibilities. It gives the minister the opportunity to release or not release documents. I think that is a flaw in the freedom of information regime and it should be attended to.

I do not want to remove a minister as an agency and remove the capacity to access documents relevant to a minister. However, to have a minister making those determinations—that practice, in my view, should end. Those determinations should be required to be made by someone else: ideally, the chief executive of the department or other agency for which the minister is responsible, or their appropriately superior senior officer who can be trusted with that responsibility. I will not jump into the weeds on all the amendments that we have put to the bill yet, but that is something that I think would be a good starting point for when we consider the operation of the regime in regard to ministers.

The member for Heysen only really touched on one point relevant to the bill and relevant to the amendments that are filed by the opposition; one was the change to the objects of the act. I was astounded that the government seeks to remove the reference in the current act to ministers of the Crown. I think that is a very backward step in terms of ensuring that a key objective of the act is ensuring that those few people who are responsible for the activities of government are front and centre with the act's objectives in making sure that the public is able to not only access documents in practice but, in principle, hold those ministers to account. I think that is something that should be remedied.

Of course, people perhaps more practised in this topic can debate this more eloquently and accurately than I, but I also thought the manner in which the government sought to canvass that former direct reference to ministers of the Crown, if that part of the bill is passed, through a reference to, as the member for Heysen quoted, representative democracy, clearly confuses the purpose of a freedom of information act in holding the executive government of the day to account.

Representative democracy is what we do in here. The member for Heysen, the member for Hammond, the member for Newland and I represent our electorates. We are one in our community chosen on a periodic basis to come in here and represent their interests. That is the concept of representative democracy. This parliament holding an executive government to account is known as responsible government. To try to confuse those two fundamental concepts of our system of government I think shows some poor drafting in trying to change the objects of the act from what they are currently, where it very specifically says that an object of the act relates to ministers of the Crown, and confuses it with this general ill-targeted set of words about representative government. That is but one of the many areas we seek to canvass.

It is not only the opposition that has a keen interest in the bill. We have had access to submissions from the media. A joint submission was put in by the Australian Broadcasting Corporation, the Seven Network, The Advertiser and InDaily. I am pleased to have access to it because, when the bill was first canvassed in the second half of last year and consultation opened on perhaps what we might call an exposure draft, those submissions were due to be received (and I am happy to be corrected here) on 24 January this year. As you can tell not only by the length of my comments so far but also by their content, the opposition had a key interest in the bill and we were also interested in the views of other key stakeholders, if I can put it like that, of the bill.

Consultation ended on 24 January and the government, as I am advised, was asked for copies of submissions and, as I understand it, that request was denied. A freedom of information application went in to get copies of these submissions, and that application was denied. An internal review to that determination was lodged, which released two emails and two attachments but no public submissions. Like most determinations that are made unreasonably, I am advised that this is the subject of an external review. This process is being engaged in by the Hon. Kyam Maher of the other place, the opposition's shadow attorney-general.

Despite the farce of a freedom of information application being required to get access to public submissions and that application being denied, we are fortunate to have copies of these submissions. The media raised a number of issues and put recommendations to the government. It recommended the introduction of publicly assessed benchmarks and sanctions for improper departmental fulfilment of requirements under the FOI Act to increase accountability and incentives for applying the law as it was intended. We touch on this in a number of our amendments.

They also recommended that the current definition of a document should be expanded to include more recent modes of electronic communication, including text messages and the use of computer or mobile applications. This is something that the bill touches on, and a topic of discussion during the committee stage will be whether the definition that has been inserted into the bill by the government not only meets the media's request but also satisfies what we might encounter in terms of not only current forms of documents but also current forms of communication between those in government.

They also recommended that the bill should include a waiver of applicant costs if an agency fails to meet the time limit and should not increase the time limit for processing applications. The media also recommended greater transparency in the calculation of costs for FOI applications and the waiving of costs up to a threshold of $1,000 for media, as currently occurs for members of parliament. Both those two recommendations find their voice in the opposition's amendments, not necessarily strictly according to the recommendation from the media submission but we think in a way that canvasses the issue well and hopefully in a way that the government can agree requires attention.

Recommendation 5 is that a proactive disclosure requirement should be expanded to make FOI applications a last resort. That is an interesting recommendation. I agree that the bill countenances a proactive disclosure regime or a mandatory disclosure of certain information regime. I am the first to commend the Deputy Premier that she has introduced changes to the FOI regime in her bill that provide for a proactive disclosure regime. Our concern, though, is that this does not go far enough. The proactive disclosure considered in the bill merely requires that a premier of the day must cause a policy about proactive disclosure to be in existence and to be applied to government agencies.

That proactive disclosure regime could be as expansive or as narrow as the government of the day sees fit. Proactive disclosure was introduced in South Australia by the former Labor government—indeed, by the previous premier, the Hon. Jay Weatherill—and applied to a range of areas that were most frequently canvassed in freedom of information applications either by the opposition or by the media, such as expenditure by ministers, in particular travel expenses, hospitality, food and beverage expenses and so on.

We were pleased, initially, that on the change of government the current Premier, the member for Dunstan, continued that proactive disclosure regime, but it has not taken too long for this government to already start watering down the proactive disclosure regime, now removing itineraries of trips that are made overseas by ministers. The ludicrous reason that was given for this was, 'It's a security risk.'

Fancy saying that several weeks after the return of a minister from overseas back to South Australia, being up-front about the hotel where they stayed was a security risk. That is just, as I said, ludicrous and certainly and unfortunately is an indication that this government does not take the proactive disclosure regime seriously. The member for Heysen, a former lawyer, maybe a continuing lawyer, who apparently does not enjoy large numbers of pages comprising documents—

Members interjecting:

The Hon. S.C. MULLIGHAN: Apparently this aggrieves him. I would tender perhaps that the member the Heysen started out in the wrong profession if that is his wont. If he does not like a lot of documents, he chose, as they say in Indiana Jonesandthe Last Crusade, poorly. Unfortunately, he has jumped from the frying pan into the fire. If he could only find another profession more subsumed by documents than the legal profession, well, perhaps it is that as a parliamentarian and legislator. My heart goes out to him. We are here for him, though. We are here for him.

It is with great pleasure that I can report to the member for Heysen that within the onerous weight of the documents comprising the opposition's amendments that have been placed at his feet, he will be pleased to know that at least a full page, if not more, comprise one amendment, and that is a more detailed, proactive disclosure regime. So we will be, at that juncture of the committee stage, regardless of how the committee finds, whipping over that page so quickly that the member for Heysen no doubt will find joy and fulfilment with the speedy progress through the documents which will be—

Mr TEAGUE: Point of order: I hasten to raise the point of order now because I fear the member for Lee might soon sit down. Imitation, I concede, is the greatest form of flattery. I was concerned that there was the beginning of what looked to me as though it was becoming a display by the member for Lee. I note the member for Lee's concern in that regard.

The DEPUTY SPEAKER: Thank you, member for Heysen. So you are not actually suggesting that there was a display; you are just suggesting that there almost was. I ruled previously, when the member for Lee raised a similar point of order—well, we eventually got to the point where copious notes were acceptable. So I think in this instance I will rule the same. The amendments themselves may be copious. We will find out. The member for Lee.

The Hon. S.C. MULLIGHAN: Thank you, Deputy Speaker, and to quote another film, 'As usual, your slightest touch commands obedience.' That is Gladiator, for those in the cheaper seats. Recommendation 6 from the media—

Mr Pederick: Bring back John Rau.

The Hon. S.C. MULLIGHAN: Well, let's not go too far. Let's not wish that upon—

The DEPUTY SPEAKER: To quote another film, A Bridge Too Far.

The Hon. S.C. MULLIGHAN:ABridge Too Far, yes, indeed, thank you, Deputy Speaker. In fact, I remember remarking, as I handled a bill I think on behalf of the former member for Enfield, 'Where would we be without him and the member for Bragg?' And the answer was, 'At home with our loved ones.' The last recommendation—

The DEPUTY SPEAKER: Member for Lee, you are tempting fate here. I think you have been on your feet for a good half-hour.

The Hon. S.C. MULLIGHAN: The final recommendation of the media was that there should be the uploading of freedom of information documents on a disclosure log, and that should occur following the agreement with the applicant of an appropriate date, or after 90 days, whichever is first. That is a point I expect some quite lengthy consideration of by all members.

Currently what happens, sir, as you may be aware, is a determination is made by an agency and it is published on that agency's website and made publicly available in the appropriate area that the agency maintains for that purpose. They are not necessarily applications made about an individual's personal details, of course, but for the purposes that we are familiar with—trying to get documents out of government, for example. The determination, with or without documents, depending on what the determination is, is uploaded to that website.

That is a matter of consternation, I can understand, for the media, because they may well be in the middle of what they consider to be an investigation into a particular matter, and it would be a significant disadvantage to the media in that regard if, as part of a broader investigation, some documents were released to them but at the same time published on the agency's website. It is conceivable in that instance that that media outlet or media entity might be dissuaded from continuing its investigation into a broader matter if suddenly documents become publicly available that allow other media agencies or other individuals to—how can I put it—get the jump on them. That is one way of looking at it.

The other way of looking at it is, if an agency determines that these documents should be available to an applicant and we have a regime already that they should be publicly disclosed, then why not just disclose them and put them out into the public as quickly as possible? I for one see both sides of the argument. I can understand why the media would want to make sure that there is some regime in the making of a freedom of information determination that either the applicant agrees with the agency to immediately release them on the agency's website, or, if they do not provide that agreement, then wait 90 days until those documents are automatically released.

I am looking forward to the contributions of other members in this place on that particular matter because, as I said, I see both sides of that argument. I think there are strong arguments both in favour and also against that proposition. We have canvassed it in our amendments because we think, at the very least, that is something we should have some consideration of, a debate about and reach some position on.

The other submission that I want to draw attention to is from what I presume is another heavily document-burdened institution, and that is the Law Society of South Australia. Members of that august body surround me, so I choose my words carefully, but they have also made some recommendations to the bill. Without reading it verbatim, they congratulate the Attorney on putting a bill out for consultation and being willing to countenance changes to the act.

Again, I think the Attorney, as someone who has had a keen interest in this area, does deserve that recognition, but the Law Society's concerns are quite different and separate from those the media raises. They have some discussion in their submission about the changes to the external review process and the further appeal of a determination to the South Australian Civil and Administrative Tribunal. We should note here that there has already been significant change in this regard.

Perhaps either the member for Heysen or the member for Enfield can correct me if I am wrong here, but previously if one was unsatisfied with a determination after pursuing it through the internal review process and pursuing it through the external review process, one's recourse then was to the District Court of South Australia. The introduction of the South Australian Civil and Administrative Tribunal (SACAT) has enabled a different, perhaps I can say more easily accessible legal jurisdiction in which to test these matters. That is not to say that the District Court is now unavailable at all, but what the Law Society is referring to here are changes to the way in which external reviews can be made by the SACAT.

External reviews by the SACAT will only be on issues relating to the application of exemptions and agencies will no longer be limited to reviews on errors of law. I am sorry, the external review applications must first be made to the Ombudsman and only then by the SACAT with permission, and then the external review by the SACAT will only be on issues relating to the application of exemptions. It is those two points that the society has concerns with: the first being the limitation in the type of freedom of information decisions that are reviewable by the SACAT, and the second is the proposed power of the Ombudsman to be able to provide written submissions to the SACAT on a review application.

It is our view that the Law Society raises that first issue about the limitation of the type of FOI decisions that are reviewable by the SACAT—that is something that needs some consideration as part of this bill as well. The Ombudsman—excellent though he is and, unfortunately for him, tireless as he is in working through the innumerable external reviews that he receives, including from me as a member of parliament—is not always infallible, and there will be times when people wish to appeal his decisions. While it has been the Hon. Kyam Maher in the other place who has engaged directly with the Law Society on this bill, it is my understanding that the society rightly has concerns with that limitation on the SACAT process.

The Law Society submission goes on to talk about the scope of reviewable decisions with regard to clause 35 of the bill and say that the proposed provisions would, in effect, exclude a number of decisions made by the Ombudsman from external review, including decisions about whether or not the request was unreasonable, whether an extension of time for making an application should have been granted, whether an application was appropriately dismissed, or whether an application was appropriately declared vexatious.

The opposition has a grave concern about the capacity that the bill provides for an agency to determine that an applicant or an application is either frivolous or vexatious. I do not doubt there are some out there who are making applications that are frivolous or vexatious or, indeed, that there is a pattern of behaviour that could be considered frivolous or vexatious. I am very concerned that the bill seems to confer the capacity to make a determination about that application on the agency themselves. In the instance I referred to before, where the minister is the principal officer of the agency—that is, themselves in their office—you could see how this provides a temptation that this capacity to adjudge someone's application as frivolous or vexatious is unwarranted or unreasonable.

We are also looking forward to exploring with the Attorney the role of the Ombudsman in SACAT reviews because there are likely to be strong arguments in favour as well as against the Ombudsman playing a role in those reviews. I can see that there would be situations where it may assist the original applicant for the Ombudsman to be a party to those proceedings. I can imagine from the Ombudsman's perspective that he has a lot to do and that the last thing he wants to be dragged into is an enormous number of SACAT reviews of those decisions. That is something that our amendments seek to canvass as well, but moreover we look forward to the discussion with the Attorney about how the regime her bill proposes is likely to function and then how in practice people might experience that for better or for worse.

The extension of time frames was a surprising inclusion in the bill, increasing the period for a determination from 30 days to 45 days. An increase of 50 per cent, no doubt, comes from that same streak within some areas perhaps of the Public Service that were advising the Hon. Mr Sumner in the mid-1980s that this is very onerous and too expensive. Of course, it raises the question about what level of effort and resourcing is put into FOI regimes.

The Attorney says there was suboptimal performance under the previous government and it would be churlish and inaccurate of me to completely disagree. I am sure that in the Attorney's experience alone, let alone that of other members of parliament, or other members of the public, there were many occasions when agencies were unable to meet that 30-day time period. Perhaps, if you were lucky, you would have received a cursory letter saying, 'Unfortunately, this is technically a deemed refusal,' and that might be the last you hear about it. I seek leave to continue my comments at another time.

Leave granted; debate adjourned.

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