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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Freedom of Information (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 July 2020.)

The Hon. S.C. MULLIGHAN (Lee) (16:49): Mr Speaker, things have changed since we were last debating this bill, none the least your respective position within the chamber, which will remove my opportunity for some of the more officious comments that I might otherwise make. I was, the Deputy Premier might be pleased to hear, in the midst of concluding my remarks as we had to pause in the consideration of this bill. In doing so, I was making some of my customary brief remarks about some of the changes that the bill seeks to make to the act itself.

When we last parted ways, we were speaking about the new provisions the bill seeks to insert about the appeals from external review to the Ombudsman and to the South Australian Civil and Administrative Tribunal. Moving on from those provisions are some relatively minor amendments about the service of documents and, at clause 37 of the bill, something that if my memory serves me correctly the Deputy Premier had a previous interest in, as did the current member for Hartley, and that is the insertion of penalties about improper direction or influence when it comes to making determinations pursuant to the act.

As I outlined, in a couple of previous instances regarding applications I had made, those new provisions that the bill seeks to insert would have been most welcome, given the clearly improper influence that some people were exerting in the determination process. I made specific reference to an application I had made for documents regarding the Adelaide Oval Hotel and the delayed determination due to the documents and the covering letter, the determination itself being made available for release, sitting in the in-tray, I was led to believe, of the then Chief of Staff to the Premier, the now federal member for Sturt, the Hon. James Stevens.

There are some changes regarding fees and charges, which we will seek to discuss further in the committee stage, and some changes to the exemptions surrounding cabinet and Executive Council documents, including the attempt in the bill to enshrine what has become known as the 10-year rule for cabinet documents and being able to access cabinet documents.

I think that is currently done in a somewhat intensive and deliberately cumbersome process where, rather than seeking access to a cabinet document, one must lodge a freedom of information application for that document, which is then assessed as if it were a regular FOI application, albeit with the change that unless there is some other reason why those documents should not be released, notwithstanding it is a cabinet document, it can be released under the act.

I made reference in my earlier remarks that we have a suite of amendments that the opposition is seeking to move. I also understand that there are crossbench amendments, and I think the Deputy Premier might have some amendments as well to pursue in the committee stage. On the basis of my comments to the house previously, members will not be surprised to learn that the amendments the opposition seeks are extensive. There are over 60 of them. They seek to ensure that some of the changes the Deputy Premier proposes in the government's bill are not successful.

In particular, they are trying to fundamentally change the objects of the act that currently favour the release of documents. As I have mentioned, that fundamental change to the act seems to be intent on curtailing the applicant's access to government documents and also changing the manner in which documents are released and the obligations on departments in making freedom of information determinations.

In short, this is a bill that would substantially reduce public access to government documents. It does not enhance government access to public documents and that should not be, in principle, something that the parliament supports. Given the complaints in recent years of those opposite, who are now finding themselves occupying the treasury bench in forming government, about their frustrations in being able to get access to documents, and particularly since the now Deputy Premier and some of her colleagues have been in this place, we would have thought that this bill would have sought to expand the public's access to documents, but unfortunately it does the opposite. I will not go chapter and verse into the detail of what our amendments seek to do. I will save that for the committee stage. With those few and brief remarks, I conclude my contribution on this bill.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:56): I thank all members for their contributions in relation to this bill, and indeed a very large number of submissions have been received throughout this debate and development of reform. In particular, I thank the Ombudsman, Mr Wayne Lines, who has done quite a significant amount of work. He is frequently the arbiter of a number of the applications in dispute and so has an excellent working knowledge of what is required. I place on the record the concern I have in leaving unanswered the pitted history of the development of freedom of information law.

The Hon. S.C. Mullighan: Potted.

The Hon. V.A. CHAPMAN: Potted—this is certainly pitted this lot, but it is because there are a lot of holes in it. Although the member for Lee extols the virtues of the former Attorney-General, the Hon. Chris Sumner, as somehow or other being the architect of the development of this bill, I think it is important to recapture what has been said. He suggested there had been a working party established under the Dunstan regime. There had been nothing done at that time, including through the Tonkin era. But between 1982 and 1989 apparently it is the fault of all the Sir Humphreys in the department in trying to stop the freedom of information law developing in a statutory form, until 1989, when he credits some advancement.

For the benefit of the member of Lee, and any other of the few people who might be interested in this history, can I say that it should not go unnoticed that freedom of information law was in discussion from the early 1970s. Indeed, the Hon. Gough Whitlam, Prime Minister of Australia for a fairly short time, nevertheless promised that he would introduce freedom of information laws at the commonwealth level before his election in the early 1970s. He did not ever do it—that is noted. The subsequent government, under the Fraser administration, convened a significant body of work of inquiry as to how that would operate, and ultimately was progressed at that level. It is true that the Labor government under the Bannon administration in the 1980s took a long time to pick that up, but nevertheless they did.

We are here now to address a bill that is hopefully going to bring the freedom of information law, which had its genesis back in 1989, into the 21st century. It is a long time coming. It has been a long period of time since important people, such as the Ombudsman, have brought this to the attention of the parliament in their reports over many years, which have gone unheeded. I am proud to say that, notwithstanding the failure to advance any of this during the previous government's administration, as the new government we have done so.

We look forward to there being a contemporising of this legislation for the benefit of all the members of the public, including members of parliament. As a member of the opposition for 16 years, I can say it is true that there is a frustration with the particular capacity of governments and departments to be able to claim transparency and in fact be very opaque. This law has a good basis. It is important that it be improved now for the 21st century, as I said.

I acknowledge the amendment filed by the member for Frome relating to the proposed proactive disclosure requirements, especially as they would apply to local councils. I flag that I will be moving amendments in response to the member for Frome's concerns to ensure that proactive disclosure requirements are prescribed in regulations and more readily amenable to parliamentary scrutiny.

I will take the opportunity to address a number of other points raised by the member for Lee in his second reading contribution, which relate to amendments he has filed. The honourable member asked what involvement or consultation there was with the current Ombudsman in the development of this bill. The review of the act, I advise the parliament, that gave rise to this bill was started with a comprehensive submission from the current Ombudsman. In addition to supporting the various legislative recommendations of the former Ombudsman in the 2014 audit report, the current Ombudsman made many further suggestions for changes to the FOI Act, which have been incorporated into this bill.

The Ombudsman was then consulted twice again in the form of the draft bill and his suggestions for changes taken into account in finalising the bill for introduction. The Ombudsman, Mr Wayne Lines, has therefore been instrumental to this review of the act and this bill, with valuable contributions also from the various agencies that administer the act, as well as members of the public and the media as users of the act.

Turning to the specific points made by the member for Lee in relation to amendments filed by the opposition, the first is in relation to the new principles and objects provision to be inserted in the act by the bill and the omission of any specific reference in that to ministers of the Crown. This provision was drafted in accordance with recommendations contained in the former Ombudsman's 2014 audit report on agency compliance with the FOI Act, itself informed by more contemporary wording in interstate legislation.

As is the case in those interstate acts, there is no specific reference in the new provision to the accountability of ministers of the Crown. 'Agency' is defined in the act specifically to include a minister of the Crown; therefore, it is completely unnecessary to specifically include an additional reference to ministers. In relation to the member for Lee's discussion of the media submission for publicly assessed benchmarks and sanctions by a departmental fulfilment of requirements under the FOI Act, the government agrees with the need for these.

There is an existing requirement in section 54 of the FOI Act to report annually to parliament on the administration of the FOI Act. These annual reports contain detailed reports on benchmarks, such as the number and time of applications; the time taken to resolve applications; the outcomes of applications, including the numbers of refusals, determinations to release in full, determinations to release in part; and, further, the reasons for refusals, also the most commonly applied exemptions, the outcomes of internal reviews and others.

In terms of sanctions, there are existing disciplinary and enforcement mechanisms in the FOI Act and other legislation, in particular under the Ombudsman Act. Both the Ombudsman and the SACAT are empowered under the FOI Act in sections 39 and 42 to report evidence that an officer of an agency has been guilty of a breach of duty or of misconduct in the administration of the FOI Act, with sanctions flowing from that in public sector legislation and codes of conduct.

The Ombudsman is also empowered under the Ombudsman Act to investigate an agency's handling of an FOI application and recommend remedial action. For example, in a recent such investigation, the Ombudsman recommended that the agency in question change its FOI policies and procedures and have its FOI officers undergo further FOI training, as well as making specific recommendations on how the agency deals with FOI applications, including not dealing with applications in separate parts and responding to all email communications in a timely manner.

I refer to the Ombudsman's report of April 2020, entitled 'Northern Adelaide Local Health Network: investigation of agency's handling of Freedom of Information Act application'. In such an investigation under the Ombudsman Act, the Ombudsman would request the agency to report back on the implementation of his recommendations. Further, if it appears to the Ombudsman that appropriate steps have not been taken to give effect to a recommendation, the Ombudsman may report the failure to the Premier and request copies of that report be laid before parliament pursuant to section 25 of the Ombudsman Act.

In relation to submissions and the filed amendments that the FOI application fee should be refunded if an agency exceeds a time frame for dealing with an application, the bill adopts a compromise approach to require a refund of processing costs where the time frame is exceeded. This follows advice from agencies that the work involved in processing refunds of application fees would itself be a significant administrative burden and an additional cost to agencies.

Finally, it is apparent that there is some misunderstanding about the effect of the bill's amendments relating to SACAT reviews. For applicants, there is no charge to the range of matters that may be reviewed by SACAT. The bill increases an applicant's external review rights to the Ombudsman by adding in grounds to review an agency's determination not to give access to a document on the basis that it cannot be found or does not exist. This is not currently reviewable by the Ombudsman or SACAT under the act.

This additional ground of review at the external review stage is not replicated at the SACAT review stage because SACAT lacks the investigative capabilities that the Ombudsman's office has to review a determination relating to a sufficient search. Currently, agencies are limited to seeking SACAT review only on a question of law. The bill would broaden agencies' review rights so that they are able to apply to SACAT for a review of a decision by the Ombudsman that a document was not an exempt document.

This amendment, together with the other amendments relating to SACAT reviews, arose from submissions to me by the current Ombudsman. Also, importantly, the bill does not change the position under section 40(8) that, in the case of any SACAT review brought by an agency, SACAT must order the agency to pay the other party's costs.

I will deal with the remainder of the filed amendments during the committee stage. However, to sum up the government's commitment to undertake a review of the FOI Act, the former and current ombudsmen have highlighted South Australia's legislation is lagging behind other states which have overhauled their equivalent legislation in the last 10 years or so. The Labor government, of course, had 16 years to do this. They did not.

It is particularly the case that a number of transparency measures, including legislative proactive disclosure, have been developed in other jurisdictions. However, these interstate acts also have recognised the need for additional provisions designed to increase sufficiency in administering the act and cut down on abuses of the right of access. Accordingly, the opportunity has been taken to bring our act more closely in line with those acts in respect of these efficiency changes, as well as the transparency changes.

It needs to be borne in mind that the objective of all changes in the bill is ultimately to increase transparency, including where this is by increasing efficiency in the administration of the act. Increasing efficiency and cutting down on the abuses of the act enables agencies to deal with more applications for access. I look forward to a constructive discussion and debate during the committee stage, and I indicate that in relation to the member for Lee's tabled amendments there has already been very significant provision to remedy in this bill some of the concerns that he has raised.

I just say in conclusion that there were a number of complaints during the debate about the reduction in time to do certain processes, or an expansion on behalf of the responding party—usually the agency—to enable there to be provision of records, documents or information that is sought. I can say that there has been no change to time frames that has been initiated by this government. The practical implementation of the time frames has been as a direct result of those who actually manage these, and they are not just the agencies but most importantly the Ombudsman and the processes that his office needs to go through in dealing with these matters.

If there has been a demonstrated need to tighten those, then of course this would be considered by the government, but we are persuaded by the submissions that have been put on multiple occasions by the former Ombudsman in his report in 2014 and the current Ombudsman, and we are mindful of trying to ensure that the obligations of agencies are fulfilled, provide an appropriate review and provide significant appellant inquiry availability at reasonable cost to the parties.

Finally, I say that in relation to the amendment of the records, that is, to correct errors in public records, I think only once in the time I have been in the parliament has anyone actually come to me to ask for records to be changed; that is, they have identified an error usually in their own personal records. So, it is a very rare application as I understand it on inquiry with some of the agencies, such as the Ombudsman's office, that that appears to be the case.

However, it is an important part of the legislation nonetheless. I think that the public ought to be reminded that they have the right under Freedom of Information Act laws in South Australia to have a process by which they can present material, obviously, to support an application to correct false or inaccurate information without the sort of intention that it might have been put to ensure that those records are set straight. It is just a reminder to the general public that that is available, and if members do receive some inquiry from constituents that they have an opportunity to utilise that process.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The ACTING CHAIR (Mr Pederick): Member for Lee, do you have any indication where your first question is, which clause? Is it on clause 1?

The Hon. S.C. MULLIGHAN: Such is my desire to be collegial on this matter, Mr Acting Chair—

The ACTING CHAIR (Mr Pederick): So helpful, member for Lee.

The Hon. S.C. MULLIGHAN: As always. I am here to please.

The ACTING CHAIR (Mr Pederick): You are here to help. You are from the opposition and here to help.

The Hon. S.C. MULLIGHAN: I am willing to concede the first three clauses. We have no issue with the first 7 or 8 per cent of the bill. We are racing through this.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 1 [Mullighan–1]—

Page 3, lines 16 to 18 [clause 4, inserted section 3(1)(a)]—Delete paragraph (a) and substitute:

(a) that this Act should promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State;

This amendment seeks to reinsert or retain, I should more accurately say, the current provisions of the act with regard to the act's objects. If you look at the objects as they are set out in the current act in section 3, you will see that there is a specific reference to the objects of the act being to promote openness in government and accountability of ministers of the Crown and other government agencies.

I am willing to concede to the Deputy Premier that a change that she has in her bill in this regard might in part find its genesis in one of the recommendations of the former Ombudsman's report from 2014. However, as the Deputy Premier herself is not wedded to recommendations of the Ombudsman, either former or present, when it comes to amendments to the FOI Act, neither do I feel that in this regard this amendment contained in the Deputy Premier's bill should be made to the act.

What I am seeking to do is remove from the bill some of the new provisions that the Deputy Premier seeks to insert into the objects of the Freedom of Information Act and retain those words that I just mentioned, and that is that paragraph (a) is effectively retained in the existing act. You will see those words:

(a) that this Act should promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State…

I think it is a concern that what the bill from the Deputy Premier proposes is this wishy-washy reference away from those people that this parliament holds responsible for the administration of the state, that is, ministers. It removes ministers and instead makes some vague reference that 'representative democratic government is supported and enhanced by ensuring that proper public scrutiny of government activities occurs'.

That is less specific and less onerous on ministers. It should be onerous on ministers, because they are the ones who are responsible for the administration of the state. They are responsible to this parliament and to the public, and I cannot support the removal of the objects of the act and its reference to ministers. I would encourage all members to support my amendment in that regard.

The Hon. V.A. CHAPMAN: The government opposes this amendment. It really just keeps us in the Dark Ages. The contemporary language is there. It makes very clear the need for the representative democratic government to be supported. Obviously, representative democratic government includes ministers of the Crown. I explained earlier that it would replace, essentially, the same language that we used to have. The provision would seek to replace it with not a principle, rather an objective, that this act should promote openness in government and accountability of ministers of the Crown and other government agencies.

The objects this amendment would seek to move are the in-principles section of the bill, a provision I have already adequately covered in the objectives part of the bill, provisions (2)(b) and (c). I just ask the member to consider that we really do want to bring this into the 21st century and it is already 2020.

The Hon. S.C. MULLIGHAN: There is no relevance to the Attorney's comment that this is about making the wording of the act more contemporary or bringing it into the 21st century. What it does do is make it more obscure and irrelevant to the purposes of the FOI Act. 'Representative democratic government' is literally a nonsense.

We have a democratic representative process in South Australia and we go through it once every four years—that is, the election of members of parliament to represent their communities. That is quite separate from what the current act is alluding to, which is the concept of responsible government, where ministers of the Crown are responsible to the parliament, responsible to those representatives of the community here in parliament, for the administration of the state.

Believe you me, sir, it is a very calculated and deliberate act of the government to try to remove the reference to ministers of the Crown and hence water down the accountability of ministers via the Freedom of Information Act. It should not be supported.

The committee divided on the amendment:

Ayes 19

Noes 25

Majority 6

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Close, S.E. Cook, N.F. Hildyard, K.A.
Koutsantonis, A. Malinauskas, P. Michaels, A.
Mullighan, S.C. (teller) Odenwalder, L.K. Piccolo, A.
Picton, C.J. Stinson, J.M. Szakacs, J.K.
Wortley, D.
NOES
Basham, D.K.B. Bell, T.S. Chapman, V.A. (teller)
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Gardner, J.A.W. Harvey, R.M.
Knoll, S.K. Luethen, P. Marshall, S.S.
McBride, N. Murray, S. Patterson, S.J.R.
Pisoni, D.G. Power, C. Sanderson, R.
Speirs, D.J. Tarzia, V.A. Teague, J.B.
Treloar, P.A. van Holst Pellekaan, D.C. Whetstone, T.J.
Wingard, C.L.

Amendment thus negatived.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 2 [Mullighan–1]—

Page 3, line 19 [clause 4, inserted section 3(1)(b)]—After 'held by' insert 'Ministers of the Crown and'

This, of course, similar to the previous matters we were discussing, seeks to reinsert the importance of ensuring that ministers of the Crown, as well as agencies, are to be held accountable by the act itself. In her brief remarks summarising the second reading, the Deputy Premier pointed out that, for the purposes of the current act, ministers of the Crown are indeed agencies, which would perhaps then lead you, sir, to think that my amendment in this regard would be superfluous.

However, there are subsequent amendments, which the house will yet enjoy, which seek to delineate somewhat ministers from agencies so that, for example, ministers, for the purposes of making a determination under the act, are not held to be the principal officer of the agency.

For example, where a freedom of information application is made to the office of the minister, the minister being defined as an agency themselves, that minister, as a person, finds themself as the principal officer of that agency and makes the determination. In that context, you can see the clear conflict of interest that a minister has in making a determination pursuant to the act where they are determining whether access is granted or withheld from access to documents. This small amendment really precedes later amendments, which serve to give effect to that broader, more important change about separating a minister from that role as principal officer of the agency.

The Hon. V.A. CHAPMAN: The government opposes the amendment, largely for what I have already said. It is not the intention of the government that we would change the provision of the definition of agency in section 4 of the existing act. Whilst I know it is foreshadowed in the member's amendments, I do not know why there is suddenly some inconsistency. There is a role for ministers of the Crown in the freedom of information law. They need to be accounted for and they are in the definition of agency.

I do not know why suddenly, after 16 years of Labor government, the issue of having the definition of agency including the minister of the Crown, which has not been identified by any other party as necessarily needing to be separated, should suddenly be so. I see it as really complete window-dressing and, frankly, it would also risk the confusion of interpretation because of the other types of agencies included in the existing definition of agency, such as councils and incorporated and unincorporated public bodies, which are also not specifically referred to in this amendment.

If the member had identified that there was some actual impediment to this continuing in this process, of course we would have a look at it, but no-one else has identified this, and it seems to me we need to not try to frustrate the application of the act and make it more confusing; we need to make it clearer for those who want to have the benefit of getting access to documents.

The Hon. S.C. MULLIGHAN: It is regrettable that the Deputy Premier will not be supporting this. She claims this will make the act more confusing. Indeed, it is a problem. It has been a problem. I am sure it has been a frustration for her in the past as a member of parliament, let alone as a shadow minister prior to this last state election, that she may have made an application to a minister for documents—for example, documents including correspondence to a minister or correspondence from a minister to another party, briefing papers to a minister and so on—and the minister then determining that application.

That is not something that is anywhere close to ideal. There is a clear incentive for a minister to make a determination to withhold documents which may be embarrassing to them. I said in my second reading contribution that in the time that I was a minister I found it uncomfortable I was being asked to make those determinations. I would have thought that, when other members of parliament were seeking access to documents they believed I may or may not have had, if I made a determination they would immediately see the risk of a political lens being placed over the making of the determination by a minister.

Perhaps the Deputy Premier's complaint is that it is an issue I have identified and so it cannot be really a substantive issue worth addressing, but if that is the case it is also regrettable. But this is a problem. It is a problem that needs to be addressed. It is no longer feasible, as we have seen the administration of freedom of information law over the last 30 or so years here in South Australia, that we now have, by and large, a practice by many agencies, government departments, including ministers, that do not adhere to the object of the act—that is, that documents should be made available wherever possible—and instead are finding any possible reason whatsoever to withhold access to those documents. That is certainly the experience of most people with the FOI regime here at the moment. I do not think many people could disagree with that.

The tedious and tenuous arguments put forward in determinations, either from agencies or from ministers acting as principal officers, about the lack of access to documents they claim are cabinet documents pursuant to schedule 1 are a prime example of that. The number of times I have received external review determinations from the Ombudsman that have called out those clearly wrong determinations by agencies brings this to bear.

This is in itself a relatively small amendment but one that contributes to a later much broader amendment about ensuring that ministers cannot find themselves in this position of having a clear conflict of interest in being the principal officer and making a determination. It is one that we think the parliament should support and accordingly we urge the house to support this amendment.

The Hon. V.A. CHAPMAN: I have one further comment to make, and that is this: I do not agree that there is—

The Hon. S.C. MULLIGHAN: I do not believe the Attorney has the opportunity to make a comment. It was my amendment. I have moved it, she has spoken to it and I have closed it off.

The Hon. V.A. CHAPMAN: I can speak three times on the amendment.

The ACTING CHAIR (Mr Pederick): She has three contributions, so she is fine. Thank you, member for Lee.

The Hon. V.A. CHAPMAN: I will try to be brief. I do not agree that there is a conflict of interest. I reiterate to the member for Lee that if there is evidence that there has been some abuse of process by a minister, then I am happy to hear about it, but the Ombudsman has not picked this up. If there are grounds that have been claimed for the redaction or the non-disclosure or the non-production of documents that are unmeritorious, then there is an appropriate review process to deal with that.

I do not disagree with the member that there will be differing views about whether something is in the public interest or whether it should be covered by cabinet confidentiality or all the many provisions that are in the FOI law. If there is some misconduct in relation to any agency, whether that is a minister of the Crown or officers who are defined there, then we ought to have that information brought to us, but really the matter is reviewable and there is a process to do that. Again, I think the member's contribution really has not satisfied the government that there is any basis for the need for this. There is no conflict of interest.

The Hon. S.C. MULLIGHAN: Let's take this opportunity to call out the Deputy Premier's line of argument: 'This can't be an issue because the Ombudsman hasn't brought it to the attention of the Deputy Premier.' We know, of course, that issues the Ombudsman has raised with the Deputy Premier have been completely ignored in this bill. We know this because in the last month itself we have had two media reports where the Ombudsman is directly quoted complaining about agencies' performance in making freedom of information determinations, in particular when it comes to external review determinations that the Ombudsman has made where he has ordered that agencies release documents to applicants.

There have been times in the last year or so—by one media report, 16 separate occasions—when SA Health has refused to release documents to applicants despite the Ombudsman having ordered that those documents be released to the applicants. In that case, the Ombudsman is quoted in that media article as saying he has recommended that changes to the FOI Act be made to ensure that the Ombudsman's determinations are enforceable on agencies. The Deputy Premier has not taken that up and has certainly not taken it up to the satisfaction of the Ombudsman.

So this is a bogus argument that the Deputy Premier makes: 'I'm sorry, member for Lee. It's your idea. It's not the Ombudsman's idea, so it doesn't hold credence.' What that serves to mean for the Deputy Premier's purpose is: 'If only the Ombudsman had recommended it, I would have taken it seriously and it would have found its voice in the bill.' We know now that when the Ombudsman recommends things they also get ignored by the Deputy Premier. There is a clear conflict of interest. There is no credible argument against that.

Of course, when a minister has documents that have been located by their office, that have been found, and then makes a determination that they should not be released to an applicant for some reason—often spurious—and determines that there is no conflict of interest, usually because those documents might serve to embarrass them or embarrass the government in some way, that is a clear conflict of interest.

Amendment negatived.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 3 [Mullighan–1]—

Page 4, lines 2 to 7 [clause 4, inserted section 3(1)(c)]—Delete:

'should have an enforceable, presumptive right to access such documents and information, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy' and substitute:

have an enforceable, presumptive right to access such documents and information, subject only to such restrictions as set out in this Act

This amendment is again on clause 4. You might think that clause 4 is getting a lot of attention, sir, and you would be right, given the horrific surgery the Deputy Premier's bill seeks to do to the existing objects of the act.

This amendment seeks to effectively change what we have in the bill by deleting the words:

should have an enforceable, presumptive right to access such documents and information, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy—

and to substitute it with the early part of that provision, that is: 'should have an enforceable, presumptive right to access such documents and information, subject only to such restrictions as set out in this Act.'

What we are seeking to remove is what the Deputy Premier seeks to insert into the act, and that is the huge caveat around whether agencies should be required to release documents, and that is the old chestnut: the public interest test, namely, 'subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions)'. This seeks to basically foreshadow that those documents that may contribute to the maintenance of the effective conduct of public affairs through the free and frank expression of opinions should be a severe limitation on an applicant's access to documents. What an enormous catch-all that provides the government to refuse to release documents.

This is perhaps one of the most hotly contested areas of freedom of information law in its application when it comes to the Ombudsman and his external reviews, that is, principal officers of agencies—in my experience, usually the Treasurer—saying, 'Although you may be entitled to access this document, I have run the final ruler over whether this document is to be released and I have applied the public interest test, and I have determined that it is not in the public interest for this document to be released.' So, notwithstanding all the other elements of the Freedom of Information Act, which may give me or another applicant access to those documents, the Treasurer then says, 'However, be that as it may, I have applied a public interest test and in my view the release of these documents is not in the public interest.'

That means that it is not in the Treasurer's interest that that document becomes public. That is the test that gets applied by this government. That is the standard that is applied when ministers, as principal officers of agencies, seek to make determinations under the act. Those principal officers think, 'Is it in the public interest that this document becomes public and perhaps causes me or the government that I am a member of some embarrassment?' I do not think that is in the public interest. I mean, really?

The government currently uses this as a test to try to preclude this, so what does the Deputy Premier do? She picks up that bogus practice and inserts it into the objects of the act. How contrary to the existing object of the act can that be, that is, to release documents where possible subject only to the restrictions elsewhere in the act? How much more reasonable could it be? It could not be. That is very fair. But that is not what the Deputy Premier wants here. Yet again, within this clause, is another watering down of the objects of the act to give agencies a much broader palette to paint from when it comes to coming up with preclusions and exclusions and reasons not to reduce documents.

That is not what the FOI legislation should be about. The FOI legislation, as it currently stands, should be to promote the availability of documents to members of the public pursuant only to the other restrictions set out in the act, and that is simply what our amendment does here.

The Hon. V.A. CHAPMAN: I indicate that the government opposes this amendment. The value of these aspects to which the member seeks to exclude really does diminish the effectiveness of this legislation. That is the government's view. Again, nothing has been put to us to suggest otherwise.

The Hon. S.C. MULLIGHAN: I find that very disappointing, once again, from the Deputy Premier. In my previous contribution, I said, 'Let's put to bed this spurious argument that the Ombudsman hasn't suggested it and so it can't be supported.' I was able to do that by demonstrating that those issues that the Ombudsman is passionate about when it comes to reforming the law have on occasion been ignored by the Deputy Premier.

Let's put the other contention that the Deputy Premier is now starting to lean on, namely, 'Nobody has raised any issues around this, as far as I am aware.' Well, I just did for 4½ hours in my second reading contribution. I gave example after example, whether it was the example around the deliberate attempts by the Premier's office to withhold access to documents regarding the Adelaide Oval Hotel development that should have been released publicly or whether it was the deliberate withholding of documents from the Department of Planning, Transport and Infrastructure about correspondence between the federal government and the state government about commonwealth budget initiatives.

Of course, I am one member of parliament, one citizen, with experiences of lodging FOI applications. There are many more members of parliament and multiple members of the public who have unsatisfactory experiences with navigating the freedom of information process here. For the Deputy Premier to pretend that there is no issue here is completely bogus.

Her unwillingness to countenance any of the suggestions that the opposition puts forward here to enhance transparency, accountability and access to documents I think only serves to show that, after complaining about freedom of information legislation for the best part of 16 years, now that it has been more than a couple of years in government she is not as interested in making good on those complaints through changes to the law as she would have had us believe. I do not think the Deputy Premier is as committed to positive reform in this area as she pretends to be.

This is a reasonable amendment, one worth supporting, and I would hope that other members would vote accordingly.

The committee divided on the amendment:

Ayes 19

Noes 24

Majority 5

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Close, S.E. Cook, N.F. Hildyard, K.A.
Koutsantonis, A. Malinauskas, P. Michaels, A.
Mullighan, S.C. (teller) Odenwalder, L.K. Piccolo, A.
Picton, C.J. Stinson, J.M. Szakacs, J.K.
Wortley, D.
NOES
Basham, D.K.B. Chapman, V.A. (teller) Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pisoni, D.G.
Power, C. Sanderson, R. Speirs, D.J.
Tarzia, V.A. Teague, J.B. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Wingard, C.L.

Amendment thus negatived.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 4 [Mullighan–1]—

Page 4, after line 7 [clause 4, inserted section 3(1)]—After paragraph (c) insert:

(d) that government agencies and Ministers of the Crown should, wherever possible, facilitate informal access to information, with recourse to legal arrangements under this Act being a last resort, and that government agencies and Ministers of the Crown are committed to—

(i) being open and accountable, engaging with the community and encouraging public participation in the making of decisions, policies and laws; and

(ii) enhancing the flow of information from government agencies by releasing information, unless there is good reason not to, without the need for an access application under this Act;

(e) that proactive publication of documents and information held by government agencies—

(i) puts information into the community faster and at lower cost; and

(ii) reduces agency time and resources spent processing individual access applications; and

(iii) demonstrates a commitment to openness, accountability and transparency which, in turn, may increase confidence in government.

This amendment includes the words as set out above for a new paragraph (d) after paragraph (c), which would read that government agencies and ministers of the Crown should, wherever possible, facilitate informal access to information, with recourse to legal arrangements under this act being a last resort and that government agencies and ministers of the Crown are committed to being open and accountable, engaging with the community and encouraging public participation in the making of decisions, policies and laws, and in enhancing the flow of information from government agencies by releasing information, unless there is a good reason not to, without the need for access to application under this act.

The proactive publication of documents and information held by government agencies puts information into the community faster and at lower cost, reduces the agency time and resources spent processing individual access applications and demonstrates a commitment to openness, accountability and transparency, which in turn may increase confidence in government.

This does a number of things. One is it effectively foreshadows, and places into the objects of the act, the proactive disclosure regime. As I mentioned in my second reading contribution, the government makes reference to a proactive disclosure regime in its bill. It goes so far as to suggest that the Premier of the day must publish a proactive disclosure policy and then leaves it at that, whereas what we have chosen to do is set out into the bill a proactive disclosure regime that would enshrine the types of documents and information that must be released by agencies on a periodic basis.

That is undeniably a good thing. Ensuring that ministers and agencies are required to release information under such a regime is a very good thing. Firstly, for the benefit of the agencies to whom applications are made, it substantially removes the need for applications and hence the resources needed to deal with applications for fairly regular types of information. It also, I think, places a discipline on those government agencies to ensure that the information that is being reported on in the documents that are proactively disclosed is something that is of regular interest to ministers and chief executives insofar as it is to be published and also, of course, as we have seen from the fruits of FOI applications in the past, those sorts of documents relating to travel expenditure and accommodation.

Sitting extended beyond 18:00 on motion of Hon. D.C. van Holst Pellekaan.

The Hon. S.C. MULLIGHAN: As I was saying, it is in the interests of those government agencies to have a proactive disclosure regime. It is, I think, a substantial oversight from the Deputy Premier not to ensure that we have a rigorous and robust proactive disclosure regime actually set out in the bill.

What this amendment does is not just place principles relating to the establishment of a proactive disclosure regime in the objects of the act but proceeds to foreshadow that there will be such a disclosure regime in the act. For the Deputy Premier to say outright that she does not support this amendment with a less than cursory examination of the amendment and the motivations that sit behind it, I think demonstrates that the government is not really that interested in a proactive disclosure regime.

Also, given the increasing frequency with which agencies fail to meet their existing proactive disclosure requirements, especially as it relates to ministers and the disclosure of expenditure and information regarding travel, for example, I think it shows the regard with which this government holds such a scheme.

The Hon. V.A. CHAPMAN: The government opposes amendment No. 4. The bill's new principles and objectives section already includes, as the first objective set out in the new section:

(a) to authorise and encourage the proactive public release of government information by agencies;

This, of course, has been a theme of the member for Lee and that is reasonable. Also, the existing principles and objectives provision in the bill already encompasses the concept of promotion and accountability in enabling 'community scrutiny and review of government activities'. It does not add anything, so we do not support it.

The Hon. S.C. MULLIGHAN: Regrettable, again, sir, and I encourage members to support the amendment.

Amendment negatived.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 5 [Mullighan–1]—

Page 4, line 9 [clause 4, inserted section 3(2)(a)]—Delete 'authorise and encourage the proactive public release of' and substitute 'require the regular publication of prescribed'

Again, this is a change to the provisions of the bill that the Attorney seeks to impose on the act. Deleting the words 'authorise and encourage the proactive public release of' strengthens that and changes it to instead read 'require the regular publication of prescribed'.

This is really to make it absolutely clear that certain types of information and documents containing that information must be—and they are required to be under the act—published under a more rigorous and robust proactive disclosure regime. This is later countenanced in a subsequent amendment. I would once again encourage all members to support the adoption of a more rigorous proactive disclosure regime. It is in the interests of the government, it is the interests of the agencies having to receive and determine these applications and it is in the interests of the public.

The Hon. V.A. CHAPMAN: The complication here is that, as a result of moving from a mandatory requirement as distinct from a discretionary element of publication, the logs themselves and what is in them have a discretionary element as to their composition. They can be prescribed for regular publication, but what is in them has this discretionary element. In light of that, I am advised it cannot be described as a requirement; therefore, the government opposes this amendment.

The Hon. S.C. MULLIGHAN: Really, we have got to be joking if that is the best argument against this that can be summoned by the government. The reliance on the need to ensure there is a discretion in the publication of information I think absolutely makes it clear this government's approach to the regular publication of information. It must remain, according to the government, discretionary. It should not be mandated because, of course, that would be too much transparency and too much openness and accountability for the tastes of this government.

There can be all sorts of frivolous arguments mounted by the Attorney as to why it should remain the discretion of an agency or the discretion of a minister to publish this information, but what a tremendous demonstration that is of the very casual relationship this government has with the desire to enhance accountability and transparency of government operations.

Amendment negatived.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 6 [Mullighan–1]—

Page 4, line 14 [clause 4, inserted section 3(2)(c)]—After 'accountability of' insert 'Ministers of the Crown and'

This, again, is another important inclusion of ministers of the Crown in addition to agencies to once again do two things: not just make it absolutely clear that ministers of the Crown are to be bound by the objects of this act specifically but also foreshadow the later amendment that seeks to change, in one sense, the notion of ministers of the Crown as a principal officer of the agency and so, in that regard, necessitates the dual recognition of ministers of the Crown and also agencies separately because for the remainder of the bill they are not one and the same, as they currently are.

The Hon. V.A. CHAPMAN: This is similar to amendment No. 2 and a number of the other amendments that the member for Lee has identified in inserting specific reference to ministers of the Crown. For all the reasons I have outlined previously, this is unnecessary and risks confusion. The government opposes this amendment.

The Hon. S.C. MULLIGHAN: It is very regrettable that the Deputy Premier does not believe there should be specific reference to ministers of the Crown and their accountability in the objects of the act. She calls it 'unnecessary'. Well, it is necessary in the current act and it should remain necessary into the future because I for one, and I think other members in this house—not all of course; the Deputy Premier and her colleagues certainly do not—certainly believe that ministers of the Crown should be accountable and should be specifically noted in the objects of the act.

If we cannot maintain a specific reference to ministers of the Crown, what sort of message does that send to the community from the Deputy Premier and her cabinet colleagues about ministerial accountability? We spent two entire question times this week on the topic of ministerial accountability, and here we are debating a bill now to ensure that we can have another opportunity to diminish it under this Liberal government. This needs to be inserted, it should be inserted and I think that it is a very clear reflection on the motivations of the Deputy Premier if it is not included.

Amendment negatived.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 7 [Mullighan–1]—

Page 4, after line 16 [clause 4, inserted section 3]—After inserted subsection (2) insert:

(2a) The means by which it is intended to achieve these objects include—

(a) conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are set out in this Act; and

(b) enabling each member of the public to apply for the amendment of such government records concerning their personal affairs as are incomplete, incorrect, out-of-date or misleading.

I move another amendment to clause 4—that is, to insert a new subsection (2a) under subsection (2) of what is included in the bill from the Deputy Premier—to reinsert words that would otherwise be lost in the Deputy Premier's bill, namely:

(2a) The means by which it is intended to achieve these objects

i.e., the act—

include—

(a) conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are set out in this Act;

This, again, seeks to retain what we currently have in the objects of the existing act, which is that there should be a predisposition to the release of documents. There should not be what is becoming increasingly prevalent through government agencies and ministers, and that is the use of any excuse possible to withhold access to documents. The reason why, rather than just referring to members of the public, we include members of parliament as well is twofold: one is that members of the parliament have a particular role in representing their constituents, and in doing so part of that is seeking access to information from government, and, second, in pursuing the activities of a member of parliament seeking to hold a government responsible to the parliament, they also deserve a particular recognition of their role in accessing government documents.

That is already recognised in the act. For example, members of parliament do not have to pay an application fee for freedom of information applications, which is quite different from what members of the public and the media, for example, are required to do. It is important that these words are placed into the bill. It is important that that these sentiments are retained in the act. Of course, following on from that, but no less important, is of course enabling each member of the public to apply for the amendment of such government records concerning their personal affairs as are incomplete, incorrect, out of date or misleading.

The Deputy Premier said in some of her earlier remarks this afternoon that she can think of perhaps only one or a very small number of instances where members of the public have sought this information. It has certainly been my experience as a member of parliament to assist a number of constituents to make such applications, particularly to SA Health, for information concerning themselves, usually after receiving medical treatment, for example, from one of the state-run health facilities, including hospitals.

This is a fairly frequent type of application that is made. It might pale into insignificance compared with the number of applications that members of parliament and the media might make; nonetheless, there are numerous applications made by members of the public in this regard. That, in my view, justifies the retention of these words and the sentiments they embody in the objects of the act and I encourage all members to support this amendment to make sure that the act remains strong in this regard.

The Hon. V.A. CHAPMAN: This amendment duplicates what has been sought in the member for Lee's ill-fated amendment No. 3 insofar as it refers to the conferral of an enforceable right of access to government information. It also includes separate reference, again, to members of parliament. MPs are members of the public for the purpose of the act. No other state's equivalent act includes a separate reference to MPs' right of access and accordingly the government opposes this amendment.

The Hon. S.C. MULLIGHAN: Again, it is a very disappointing view from the Deputy Premier that she would refuse to countenance a legitimate amendment from another member of parliament. She says that no other act around the country makes specific reference to members of parliament as being separate from the public. I find that interesting because we are not the only state that has freedom of information legislation that sets members of parliament aside in some respects as to how they make applications and under what terms they make those applications.

I would encourage the Deputy Premier to try to come up with a more compelling reason to oppose the amendments that have been put here this evening, rather than serve up these bogus arguments. These are not marbles being rolled under the feet of the Deputy Premier in an attempt embarrass her: these are legitimate attempts to strengthen the freedom of information legislation for the benefit of the community, some of whom may be members of parliament.

I would encourage the Deputy Premier to distance herself from the concerns she may have as a current minister of the Crown and the uncomfortable additional accountability and transparency that these amendments might bring to the agencies that she is responsible for, or even the uncomfortable additional accountability and transparency that they may bring to her as a minister of the Crown, and instead start supporting these amendments.

Amendment negatived.

The Hon. S.C. MULLIGHAN: If you wanted an indication, sir, of the Public Service's approach to amending the FOI Act—

The ACTING CHAIR (Mr Pederick): Sorry, are you going to move your amendment No. 8?

The Hon. S.C. MULLIGHAN: I am. I am just coming in off the long run.

The ACTING CHAIR (Mr Pederick): I like to get it at the start so we do not forget it. I am just trying to guide the show, that is all.

The Hon. S.C. MULLIGHAN: I will roll down a googly before I pick up the pace. I move:

Amendment No 8 [Mullighan–1]—

Page 4, lines 21 and 22 [clause 4, inserted section 3(3)(b)]—Delete ', promptly and at the lowest reasonable cost,' and substitute 'prompt'

I move this amendment as I walk back to my mark. If you ever wanted an indication of the agencies' approach to the amendments of the freedom of information legislation, then you only need to look at this part of clause 4, and that is the very telling inclusion of the term 'at the lowest reasonable cost' when it comes to determining freedom of information applications and making documents available.

We should be worried about this for a number of reasons. One is certainly the motivation behind it. It is not now that the act is to serve as an opportunity for the public and members of parliament to gain access to public documents. It is instead for an agency to start assessing such applications in balance with how much money or resources it might cost the agency in making those determinations.

If the agency starts thinking, 'Well, the application might satisfy all other elements of the act, but we don't think it's the lowest reasonable cost in making that determination,' then this obviously becomes another avenue for the government to start withholding access to documents, to start failing to determine freedom of information applications. That is outrageous. If you are really concerned about the high cost of making FOI determinations, then put in place a robust and transparent costing regime for those determinations that may involve a large amount of effort or a large amount of documents or both in making the determination.

To include in the objects effectively that determinations will be made only at the lowest reasonable cost I think speaks volumes about the government's and the agencies' approach to this. It is absolutely incontestable that there is a default position of government departments and agencies not to release documents. Agencies need to be dragged kicking and screaming through the tenets of the existing legislation to make documents available.

An example I did not raise is that it is not uncommon to get a determination back from a government agency—not necessarily a minister, but a government agency—saying, 'We are not releasing that document because it is publicly available.' Fine. 'Do you think you could tell us where it is publicly available?' No, of course not. We have to prolong the intrigue. We have to prolong the mystique that members of the public and members of parliament have to crawl through to get access to information that presumably has already been determined to be publicly released. It is just extraordinary.

The inclusion here, along with this bogus public interest test that I made reference to earlier in the objects, ensures that when this legislation is tested in the future, if it is so amended by the Deputy Premier, it provides as much opportunity as possible for an agency to withhold access to documents. Does that sound like freedom of information to you? Of course not. It is just another blatant attempt by the Deputy Premier and the government to reduce public access to government documents. That is why these words should be deleted.

The Hon. V.A. CHAPMAN: I indicate that the government will be opposing this amendment. Essentially, it is to remove the lowest reasonable cost out of the equation. The assertion has been made by the member for Lee that this is necessary because there should not be an assessment done by the agency for them to be able to identify what the reasonableness of cost would be and therefore this is a section that would be to the disadvantage of an applicant, i.e., a member of the public.

The reference to 'lowest reasonable cost' was based on the equivalent objective provisions in the interstate equivalent acts. An objective of the FOI scheme makes it clear that applicants—that is the public, including the member for Lee, whoever might be an applicant—should have access to information at the lowest reasonable cost to them, as well as that the scheme should be sustainable and efficient. I think the words used to be something like 'promptly and efficiently'. This inclusion here that, as proposed, you want to remove, member for Lee, is designed for the benefit of a scheme to help applicants. I just remind you that it is currently embodied in the existing section 3A(2)(b), which requires agencies to ensure that applications are dealt with efficiently.

Far from it being a detraction from protecting the interests of applicants, consistent with other jurisdictions this is designed to assist both applicants in relation to cost and for maintaining the obligation of the agencies to act efficiently, and also sustainably; so they need to get on with their job. So the government opposes this amendment.

The Hon. S.C. MULLIGHAN: By the Deputy Premier's own words it is clear that the motivation here is reducing costs on agencies. If the motivation here were to reduce costs on applicants, surely we would be abolishing the application fee. There is no fundamental change in how applications are to be made. We can already lodge them electronically. We do not have to lick the back of a stamp and put it on an envelope and send in a hard copy; we can already do it electronically. So the efficiency element already in the act is largely taken care of. What we are now talking about is cost to the agency. Let's not make up anything to the contrary, that it is about reducing costs to the applicants, because it is not. We are not abolishing application fees. We are not doing that at all.

What we are doing now, here, through what we are trying to amend is in relation to the insertion by the Deputy Premier and her bill the concept of lowest reasonable cost to agencies. This comes back to the issue of whether agencies are dedicating sufficient resources to meet the demand for these freedom of information determinations, which, by and large, they are not. Not only are they not but the Ombudsman is also not receiving sufficient resources for the conduct of his role in globo let alone in relation to making external review determinations on behalf of aggrieved applicants.

So, please, let's not pretend this is about saving the general public—including me, the member for Lee—money because it is not about that at all. This is about saving agencies money. Once again, if you reduce the amount of resources which agencies can dedicate to this effort, you are in effect reducing access to information. There are fewer people, fewer systems and fewer avenues of getting these applications determined, and hence fewer documents being released to members of the public. That is not openness, that is not accountability and that is not transparency. It is the opposite. That is why this amendment removes those words and just ensures it is a prompt.

In fact, I tell you what, Deputy Premier, I am happy to compromise. I am happy to leave in the existing words within the act so that it says 'prompt' and has the reference to 'efficiently' as well. How collegial is that? What a little moment of bipartisanship we have had at 6.25 this evening. If only we could do this for the other 56 amendments.

The ACTING CHAIR (Mr Pederick): Member for Lee, I need some clarification. Are you seeking leave to change your amendment? We need to get this right.

The Hon. S.C. MULLIGHAN: As I usually do, I have thrown myself at the feet of the Deputy Premier, and I am looking forward to her response.

The ACTING CHAIR (Mr Pederick): It is not quite as easy as that. Are you seeking to—

The Hon. S.C. Mullighan: No, my amendment stands, but if the Deputy Premier indicates her willingness to compromise—

The ACTING CHAIR (Mr Pederick): No, that is alright. You are sitting down; that is it.

The Hon. S.C. Mullighan: My offer is on the table.

The ACTING CHAIR (Mr Pederick): No, that is it; you are on your seat.

Amendment negatived.

The Hon. S.C. MULLIGHAN: I had hoped that we would have a better outcome on that. Perhaps that will be something we will have to test in the other place, once the bill heads up there. I move:

Amendment No 9 [Mullighan–1]—

Page 4, after line 23 [clause 4, inserted section 3]—After inserted subsection (3) insert:

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.

This is essentially a reinsertion of the existing provision in the act. The Deputy Premier seeks to delete that existing provision of the act, which I think is regrettable and is again a clear indication of this government's approach when it comes to accountability, transparency and access to government documents. What we are seeking to do is retain that provision in the act. Amendment No. 9 seeks to ensure that that important subsection is retained in the act as a clear and final statement within the objects of the act.

The Hon. V.A. CHAPMAN: The government opposes this amendment, not because of the wording 'to prevent or discourage publication'. What we have done, though, is already add into this bill the new provision in the objects, which is 'to authorise and encourage the proactive public release of government information'. We say that it is unnecessary to add that back in, given that we have already made specific provision for the positive endorsement of that in the objectives. It is unnecessary and the government opposes it.

The Hon. S.C. MULLIGHAN: Again, the Deputy Premier is confused by the current provision of the act and the reference that she just made to a different provision in the bill. She makes reference to subsection (2)(a) in clause 4 in her bill, 'to authorise and encourage the proactive public release of government information by agencies'. That is a specific reference and countenance of some form of proactive disclosure regime. That is very clear.

This here is a final statement in the existing objects of the act, which serves as somewhat of an arbiter for those seeking to make a determination pursuant to the act or, for example, for the Ombudsman in making an external review under the act, or even for a further appeal to another body like SACAT. That is an overarching principle about what this act is attempting to do. It is an overall object of the act.

Nothing in this act should preclude access to a document. If you are confused about how to apply the different parts of this act when it comes to making a determination about whether a document should be released, then the predisposition should fall on the release of documents, not on the withholding of documents and the prevention of the release of documents. That is why this is so important. It is not specifically to do with proactive disclosure at all. It is an overall overarching guiding principle of this act, and to remove it changes fundamentally the overarching nature of this act.

Through the clauses that the Deputy Premier has amended in her bill, and through the defeat of the amendments that the government has tried to move to clause 4, we have had a stripping out of these overarching principles and objects within the act. We have had a substantial weakening of the act. I am sure that is in the Deputy Premier's interests. I am sure that is what she was aiming for but that is not in the public's interest. That is not in the interests of those people who are making freedom of information applications. That is completely contrary to those interests.

Here we are right at the end of the first part of these amendments in consideration of clause 4 of the bill. Let us resuscitate those final vestitures of the objects of the existing act which served to provide a guiding principle to how the act should be interpreted, both by those administering the act as well as those who are seeking to adjudicate disputes pursuant to the act. If this is removed, it weakens the act to the detriment of the public of South Australia.

The committee divided on the amendment:

Ayes 18

Noes 24

Majority 6

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Close, S.E. Cook, N.F. Hildyard, K.A.
Koutsantonis, A. Michaels, A. Mullighan, S.C. (teller)
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Stinson, J.M. Szakacs, J.K. Wortley, D.
NOES
Basham, D.K.B. Chapman, V.A. (teller) Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pisoni, D.G.
Power, C. Sanderson, R. Speirs, D.J.
Tarzia, V.A. Teague, J.B. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Wingard, C.L.

Amendment thus negatived; clause passed.

Clause 5.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 10 [Mullighan–1]—

Page 4, after line 27 [clause 5]—After subclause (1) insert:

(1a) Section 4(1), definition of agency, (f)—after subparagraph (iii) insert:

(iv) that delivers services on behalf of the government or a council that are entirely or substantially funded out of money provided by the State or the council; or

This amendment seeks to amend clause 5 at page 4, after line 27, to insert, after subclause (1), where we currently have the definition of an accredited FOI officer in the bill, the definition of an agency. This broadens the definition of agency to capture not just those administrative organisations that are part of the Public Service but those organisations that are delivering services on behalf of the government or a council that are entirely or substantially funded out of money provided by the state or the council.

This broadens the application of the FOI Act to those organisations that effectively have been subcontracted by government to deliver government services. This means, for example, that if somebody was particularly interested in the operation of train services in South Australia from now on, they might be able to seek information from the company, Keolis Downer, that has just been awarded a major contract. Similarly, they would be able to access information, subject to the remaining restrictions in the act, from other like organisations providing services on behalf of government.

It also includes that same provision for councils or for local government. For example, if you were particularly interested in why your bin was not picked up on Boxing Day, you might be able to put in an FOI application for relevant documents to one of the large contractors that the council had put in. It is not necessarily bin collections that are the focus of this amendment. I use that only as an illustration as to the reach and the application of this.

No doubt there will be many, beyond just the Deputy Premier, who would rail against such an egregious progressive measure to be included in the freedom of information legislation in South Australia. Just as we have members of the Public Service railing against additional efforts and resources that might be required to administer the FOI Act insofar as they are concerned, I am sure local government would not appreciate this at all. Indeed, there are other amendments that we are yet to deal with which go to the very issue of the extension of the act to local government in that regard.

If we have a government—particularly this one—which is identifying essential public services and outsourcing and privatising them, this is a pretty good indication that the public would still have a keen interest in the conduct and provision of those services, for example. Just as the ICAC legislation extends to those organisations in receipt of government funds and carrying out duties on behalf of the government and are subject to that piece of legislation, similarly those agencies should also be subject to the freedom of information legislation as well. That is the purpose of this amendment. Amongst the remaining 54 amendments that we have for our future enjoyment, we will see the discussion of local government in a broader context there.

The Hon. V.A. CHAPMAN: This amendment would add a specific reference in the list of bodies that are considered to be agencies for the purpose of the definition of agency in this act to incorporated and unincorporated bodies that deliver services on behalf of government or a council that are entirely or substantially funded by public money.

Again, these sorts of things look possibly reasonable at first blush, but the position is, I am advised, that this is problematic because it will capture private service provider bodies that are not subject to direction by a minister, a state government agency or a council, since those outside bodies under such direction are already captured by the definition of agency. Requiring those bodies to respond to FOI applications in addition to the agencies that fund them, who are themselves already within the act, would likely increase the cost of those bodies and potentially impact the level of service they are able to provide under their existing funding.

It should be sufficient that the government agencies that fund these bodies are subject to the FOI Act and are able to provide documents relating to that service delivery arrangement in response to an FOI application directed to the funding agency. This can be supported by obligations in the contract with the service provider to require the provider to comply with the State Records Act and give the funding agency a right of access over records relating to the delivery of the service.

Also, there are problems on how a body will be determined, whether it meets the test of 'substantially funded' so as to know when it becomes subject to the FOI Act. The definition of 'agency' in the act already includes the ability to prescribe a person or body as an agency for the purpose of the act, and that is the preferable mechanism for bringing a private body under the act in any particular circumstance where this is determined to be justified, including the basis of public functions being outsourced by that body. Accordingly, I indicate that the government will not be supporting this amendment.

The Hon. S.C. MULLIGHAN: I am not surprised to hear the Deputy Premier's views in this regard. Of course, it is instructive to pay careful attention to the rationale she gives for opposing this amendment. One is that it costs too much for them to be accountable, and another is that it is problematic for them to be accountable. Does that not perhaps raise more concerns about the need for this in the first place?

If you were a government, like this one, minded to make it even more difficult to access public documents—if you were a government that is introducing and seeking to pass a bill like this, which does not so much water down the FOI Act but take a fire hose to it and hose it down almost completely—you would also be a government that is of the mind to view one of the corollary benefits of outsourcing and privatisation to be putting beyond the reach of the public or members of parliament access to information about those public services or other elements that non-government organisations may be contracted with to provide to government.

It is little surprise to me that, rather than taking the view that by and large this was something that government was previously providing, or regardless of whether or not the government used to provide it, this is regarded as important to the community and there should be some accountability and transparency to the community about how those services are being provided, the Deputy Premier instead says, 'No, we shouldn't take any opportunity to make sure that the public can have access to relevant documents.'

If a company like Keolis Downer wants to take on the responsibility of running train services in South Australia, not only should they be prepared for the onerous wait of making sure that they can be an accredited rail operator through the Rail Safety Regulator, something which we understand they have not yet got and in fact had only started applying for extremely late in the piece, never having been accredited in Australia to provide rail services, but they should also be prepared to ensure they can meet other government obligations as well.

The contract between the government and Keolis Downer is, of course, being kept secret, as is the wont of the Liberal government here in South Australia, and so the public has absolutely no information whatsoever about what is going to be reported on and what is going to be accounted for in terms of what Keolis Downer is providing to the government and to the people of South Australia. So here we have an essential service provided by government that has been outsourced and has now been put completely beyond the reach of the public and members of parliament in order to gain access. I think that is awful.

I know the government has an entirely different perspective on public transport from that of the Labor Party. I know the government think, for example, that it is a nuisance and an inconvenience to have to run that service and they would best do without that nuisance and inconvenience. 'If only we could offload it and get somebody else to do it.' Of course, they do not recognise that there are hundreds of thousands of South Australians who rely on these services in order to participate socially and economically within the South Australian community. Notwithstanding all of that, I would have thought the government would have recognised that that would necessitate the public being able to access documents in that regard.

For the Deputy Premier to say 'I'm not going to support it because it's difficult' I do not think cuts it. I think it is yet another indication of how this government does not take access to government information documents seriously.

Amendment negatived; clause passed.

Clause 6.

The Hon. S.C. MULLIGHAN: I move:

Amendment No 11 [Mullighan–1]—

Page 5, line 39 [clause 6, inserted section 4B(1)]—Delete 'A person' and substitute 'Subject to this section, a person'

This is the next of the amendments that seek to delineate between ministers and their agencies for the purpose of making determinations under the act. In my second reading contribution and in some of the contributions I have given during this committee stage, I have made it clear how unacceptable and unsavoury it is in the current regime for ministers to be considered principal officers of their agencies and be able to make determinations under the act. There is a clear and obvious conflict of interest—obvious to everyone, it seems, except the Deputy Premier and members of the government.

A minister will only worsen whatever predilection there is of their agency not to release documents, particularly in the situation where those documents might be deemed to be some form of embarrassment to themselves or to the government or may release information at a time that is not to the absolute convenience of the government.

It is in that respect that there should be the removal of the capacity for a minister to make determinations as a principal officer of their agency and accordingly, subsequently, further amendments seek to mandate the delegation of that responsibility to the minister's chief executive. That should provide not complete comfort, but at least a modicum of comfort, that there is a reduction in this inherent conflict of interest in ministers making these determinations.

I cannot tell you how dispiriting it is to submit a freedom of information application to the office of the Treasurer and receive a response from Rob Lucas saying, 'Due to the volume of applications we've got, I am not going to determine this for another six to eight months.' That is par for the course under this government. It is par for the course under the current Treasurer. What does he care? He is not putting his hand up next time around and is probably less fazed how that sort of activity is considered publicly.

But I certainly do, and the constituents I represent certainly do and those people who have a common interest in those issues around which we are seeking to gain access to further government information certainly do care about that. That is yet another example, for the Deputy Premier's benefit, of why there is an inherent conflict of interest in the current regime and it should be remedied. The Deputy Premier should take the opportunity of supporting this amendment so that she can start to remedy this unacceptable situation. I look forward to the fulsome support of the Deputy Premier for this amendment.

The Hon. V.A. CHAPMAN: I will just commence by indicating that I wholly reject the assertions made about the motives of the Treasurer. If the member finds that there has been an application he has made to the Treasurer or the treasury department that fails to comply with the time frames set under the legislation, then I suggest he exercises the rights which he has under the current law and which are not being removed in this law with any of the amendments in this bill. I utterly reject that, but can I indicate that this amendment sits with amendments Nos 12 and 13. There is a sort of trilogy here—

The Hon. S.C. Mullighan: And 21.

The Hon. V.A. CHAPMAN: And 21, I am happy to refer to that—

The Hon. S.C. Mullighan: Should we ever reach there.

The Hon. V.A. CHAPMAN: I doubt tonight, but we—

The Hon. S.C. Mullighan: That is disappointing.

The ACTING CHAIR (Mr Pederick): Order! Let's keep on it. Let's not bicker; we are nearly there.

The Hon. V.A. CHAPMAN: In any event, it seeks to provide that the minister cannot be an accredited FOI officer despite the minister being the principal officer of the agency constituted by the minister. Instead, these opposition amendments would require the minister designate one or more accredited officers of the agency, of which the minister is responsible, to act as accredited FOI officers for the minister's office.

The bill already seeks to address the issue of accredited FOI officers by ministers' officers by the amendment that would allow the minister's office as a small agency to enter into an arrangement where a departmental accredited FOI officer for that officer to be designated also an accredited FOI officer of the minister's office. It is not inherently problematic for a minister to be the accredited FOI officer for their office.

They are the principal officer of the agency, comprising their office, and retain the ability to make decisions of the FOI Act for their office as a matter of practicality. However, in many cases, the minister would prefer that the initial FOI assessments be made by a departmental accredited FOI officer, and the bill provisions allow that, so I indicate the government will not be supporting this amendment.

The Hon. S.C. MULLIGHAN: The Deputy Premier says in her rebuttal that the bill seeks to address the issue I raise by including a provision where very small agencies can effectively delegate their responsibilities under the act to a different, presumably larger, agency that has greater resources and, for example, accredited FOI officers are already working for them. So it does not seem too much of a stretch, does it, really, for that when it comes to ministers and their officers to be mandated.

If the Deputy Premier thinks that it is okay for small agencies—whether it is a very small agency like Defence SA or Veterans SA, or maybe even a larger agency that the Attorney-General has cut funding to, such as the Legal Services Commission, or some other organisation like that—if they wanted to enter into an agreement with a larger agency that had more resources, why can that not just be mandated for ministers?

It seems that the Deputy Premier is so focused on the need to retain this capacity for ministers so that they can continue to perpetrate these violences against openness, accountability and transparency, so that ministers can retain their roles and ensure that documents can be withheld. I would ask that the Attorney supports this amendment and continues what she alleges her bill starts in this regard.

Amendment negatived.

Progress reported; committee to sit again.


At 18:57 the house adjourned until Thursday 24 September 2020 at 11:00.


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