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

Committee Stage

In committee.

(Continued from 23 September 2020.)

Clause 6.

The CHAIR: We are up to clause 6, and we have amendment No. 12 standing in the name of the member for Lee. The member for Kaurna is on his feet.

Mr PICTON: Thank you, Chair. In the absence of the member for Lee, which I believe will be a temporary measure until he is shortly here, I am very happy, on behalf of the member for Lee, to move:

Amendment No 12 [Mullighan–1]—

Page 6, line 1 [clause 6, inserted section 4B(1)(b)]—Delete 'subject to subsection (2),'

I believe the accurate words here so described really tell the whole story. I hope that members will consider supporting this very important amendment to this legislation.

The Hon. V.A. CHAPMAN: The government opposes this amendment for the reasons outlined in relation to amendment No. 11. I pointed out that amendments Nos 11, 12 and 13 were really a sort of trilogy proposal that was interlinked. For the reasons applying to amendment No. 11, we oppose it.

The CHAIR: Member for Lee, would you like to speak to this amendment?

The Hon. S.C. MULLIGHAN: Of course I would, sir. Thank you for the opportunity.

The Hon. D.C. van Holst Pellekaan: Build on the foundation you created.

The Hon. S.C. MULLIGHAN: Yes, I am standing on the shoulders of giants this afternoon. The Deputy Premier is correct in part that this amendment is part of not a quite trilogy but a 'quadrilogy' of amendments which provide for an important and necessary change to the concept of the agency insofar as it relates to ministers. As I have outlined previously to the house, it is the view of the opposition that we should no longer prolong the practice of ministers being able to make determinations on freedom of information applications that involve themselves or their own office. Amendment No. 12 seeks to contribute to those efforts.

It is disappointing that the Attorney does not want to support that effort. It would be, I think, an important reform for the act and would ensure that ministers do not succumb to the temptation to unreasonably deny access to documents which they might find inconvenient or embarrassing to them. So I would encourage the house to support amendment No. 12 standing in my name.

Amendment negatived.

The Hon. S.C. MULLIGHAN: I direct members' attention to clause 6 on page 6 at the beginning, and I move:

Amendment No 13 [Mullighan–1]—

Page 6, after line 11 [clause 6, inserted section 4B]—After inserted subsection (2) insert:

(2a) If the agency is a Minister of the Crown—

(a) despite subsection (1), the Minister is not an accredited FOI officer of the agency; and

(b) the Minister must designate 1 or more accredited FOI officers of other agencies for which the Minister is responsible to act as accredited FOI officers of the agency constituted of the Minister.

As the Deputy Premier was telling us last night, it is not unreasonable for some agencies to enter into arrangements with other agencies, presumably larger agencies with more resources, that may have a greater capacity to manage freedom of information determinations.

If we are to have a regime that allows that to occur, then it is not unreasonable to extend it somewhat to allow the necessary separation of the minister from making determinations regarding applications that involve themselves. This is the most substantive part of that reform, following on from what we have discussed in the previous two amendments. After this amendment No. 13, there follows another amendment a little later, which also contributes to that separation and that new regime.

I would encourage members to support this. It is not appropriate that ministers continue to make these determinations, continue to act in their own interests and not in the interests of the public or in the interests of openness, transparency and accountability. I would encourage members to support this accordingly.

The Hon. V.A. CHAPMAN: I refer to my statement in relation to amendment No. 11, which has now failed, and for the same reasons the government opposes this amendment.

Amendment negatived.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–1]—

Page 6, line 33 [clause 6, inserted section 4B(4)]—After 'purposes of' insert:

applications under Part 3 for documents containing personal information of the applicant or

This amendment will ensure that the changes to the seniority requirements for accredited FOI officers have the intended effect. It was originally intended that the seniority requirement for accredited FOI officers for an agency be relaxed for officers who deal only with personal information applications, given the straightforward nature of such applications. However, during the course of drafting the bill, this change was inadvertently narrowed so that it only applies to officers dealing with part 4 amendments of records applications. As drafted, this change would not bring the intended flexibility, since there are only few part 4 amendment applications.

Whilst there are agencies that deal with large numbers of personal information applications, such as applications for a person's own medical records, given the straightforward nature of personal information applications there is not the same need for officers dealing with such applications to be senior officers as there is for non-personal FOI applications. The seniority required will remain in place for accredited FOI officers who deal with the non-personal FOI applications. Accordingly, I seek the house's support for this amendment.

The Hon. S.C. MULLIGHAN: Unfortunately, I was fossicking for a copy of the amendment. If the Attorney could perhaps refresh the house's collective mind as to the incidents in which she thinks this might provide a benefit.

The Hon. V.A. CHAPMAN: Firstly, the amendment is that after the words 'purposes of' in clause 6 we insert the words 'applications under Part 3 for documents containing personal information of the applicant or'. I indicate that it will be of benefit to all non-personal applications. Essentially, it will make the handling of the personal information applications more efficient. Do you want me to repeat what I said in relation to that?

The Hon. S.C. MULLIGHAN: I would not burden you with doing it verbatim, but when you say 'more efficient', could you just outline how.

The Hon. V.A. CHAPMAN: It simply means that because the personal information ones in relation to someone asking for their own material do not need the seniority of the higher level, whereas the FOI officers who are designated in agencies who deal with all the applications external obviously need to be at a much more senior level. That is the reason—so that can be done and provided, obviously with the appropriate consent because it is a request by the individual to seek information, such as their health records. They do not need the same level of seniority as the many more other numbers of applications that are related to external applications for non-personal information.

The Hon. S.C. MULLIGHAN: I think I have this right. If a member of the public, say, is making an application to the health department either to get access or seek some changes to their own personal information, that does not need to be handled by an accredited FOI officer and can be handled by a regular unaccredited person; is that correct?

The Hon. V.A. CHAPMAN: That is correct. It would be in relation to either amending or seeking their own personal information, which is rare. A lot of people ask for their own information, 'Can I have a copy of the medical reports?' or, 'Can I have information that you've got that relates to me? I would like to see what's in it.' That may follow with an application to amend it, but the latter is very much rarer.

The vast number of applications received under the FOI Act are from external people seeking non-personal information. They obviously need to have a level of seniority because things such as identifying somebody's personal information might be in it and that material needs to be dealt with at a senior level. For the run-of-the-mill personal applications, where the person is just seeking their own information, they ought to be able to get that. There are a number of other support people, as I understand it, in agencies who can do that and provide that information promptly.

The Hon. S.C. MULLIGHAN: Just on that, I can imagine that from time to time there might be, hopefully in isolated circumstances, applications made by such individuals in a way that might require a more careful and experienced hand. I am thinking of, for example, seeking access to a particular type of medical record in a circumstance where you might not release that, or if somebody was trying to use the FOI regime perhaps to try to have another go at what might otherwise be a release of documents in a court discovery process.

In those sorts of examples, for the people who will be handling these and who are not accredited FOI officers, will there be some sort of guidance or education available for them so that they know how to manage these applications?

The Hon. V.A. CHAPMAN: Those support persons are required to undergo training so, yes, they are trained to do what they do. I am further advised that accredited FOI officers have certain protections in relation to the FOI Act. They have a status within the structure which requires that they be independent and free of influence.

You might recall the very difficult report prepared some years ago, circa 2014, by the former Independent Commissioner Against Corruption, Mr Lander, where there had been concerns raised about the influence of other senior people in departments and/or ministers. He had done a survey. Accredited FOI officers clearly have to have training, but they also have to be senior enough to be able to deal with the obligation they have to identify and require the production of material in the agency to comply with the FOI request within the lawful envelope that is prescribed. So, yes, they have a different role.

Generally, if somebody writes in to say, 'Look, I'd like a copy of my medical records,' then the support person would deal with it. Obviously they might have to deal with things such as making sure there is no information relating to someone else's medical records that perhaps might be in the file and may show up when the electronic copy is downloaded or whatever; nevertheless, they are trained.

The member has quite rightly pointed out that the whole demand for setting up freedom of information laws is to make sure that there is a structure where there is independent review of what is available and what should be produced, starting with the presumption of disclosure. The people who do it are in a very important position and they need to be trained, they need to be senior enough and they need to be protected from anyone who might exert some influence adversely on them while they are doing their job.

Amendment carried.

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

Amendment No 14 [Mullighan–1]—

Page 6, lines 37 to 40 [clause 6, inserted section 4C(1)]—Delete inserted subsection (1)

If members care to look at the bill, at the bottom of page 6 the first subsection under the newly inserted 4C, subsection (1), provides:

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

Members who have been following this debate and the thousands of listeners at home of course—

Mr Pederick: Would be riveted.

The Hon. S.C. MULLIGHAN: They would be riveted, yes, or would prefer to be physically riveted to something else and endure the pain rather than listen to this. Members would be aware from earlier comments in this debate of my concern that elements of the Attorney's bill, if not the bill overall, seeks to limit the access of the public to documents rather than expand it.

A good example of the limitation on access to documents is subsection (1) under 4C in clause 6. Effectively, what this would contribute is to ensure that, if a minister or their office had documents in their possession and a freedom of application is lodged seeking access to those documents, if those documents are not documents of one of the minister's own agencies or departments then those documents will not be eligible for release.

For example, if a minister writes to another minister concerning some activities, operations or, say, in the Treasurer's case, budget pressures within the agencies that that correspondent minister is writing to the Treasurer about, and attaches some documents to that, it would seem that certainly the attachments to that correspondence, if not the correspondence itself, would not be captured by a determination made pursuant to the application. That is a significant restriction that is being imposed in this bill. That is a very deliberate attempt to reduce people's access to documents.

You can imagine that when freedom of information applications are made to central agency ministers, like premiers or treasurers or, to a lesser extent, attorneys-general, they would be in the possession of documents that relate to agencies that are not their own responsibility. This basically provides the opportunity for those ministers not to release those documents. That is a significant new restriction on access to government documents, one which should not be supported and one which, without an explanation from the government, appears wholly motivated to reduce access to documents.

I am sure I will hear an explanation from the Deputy Premier that in fact the opposite is true, that this is a massive extension of openness, accountability and transparency, but when we are seeking to reduce access to those documents that a minister might be in possession of, I do not think that that accords with what the current objects of the Freedom of Information Act are. I do not think that is a predilection to releasing documents. That is nothing more than a restriction on the release of documents from those ministers.

Without rehashing the point that we have just been discussing on those previous amendments, certainly, in the instance where the minister themselves is making the determination as the principal officer of that agency, of themselves as an agency, they, under this proposal, would be able to restrict access to those documents that they are in possession of, that they do currently hold and have access to merely by virtue of this new subsection, which means they do not need to release them. I think that is a very, very poor proposal which is not in the interests of openness, transparency and accountability.

The Hon. V.A. CHAPMAN: I indicate that the government will be opposing this amendment. This amendment would remove the provision in the new section 4C that sets out when a document is considered to be held by an agency. Specifically, it will remove subsection (1), which states that a reference to a document held by an agency—that is, a minister—is a reference to such of those documents that relate to agencies for which the minister is responsible. This provision is currently in the act in existing section 4(3), so the matter that is being removed is already in the act in another place.

The effect of this amendment would be to render information, such as party political correspondence and documents held in the minister's office, within the scope of the act. The FOI Act was never intended to apply to party political correspondence and documents. Opening the act to such documents will unnecessarily lead to time and cost to process applications when such documents will inevitably be subject to exemptions under the act and lead to applications being refused and inevitable internal and external reviews for applications doomed to fail. This existing provision should remain in the act. That is as I am advised and I hope that makes it clear to the member.

The committee divided on the amendment:

Ayes 18

Noes 22

Majority 4

AYES
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. Cregan, D.
Duluk, S. Ellis, F.J. Gardner, J.A.W.
Harvey, R.M. (teller) Knoll, S.K. Luethen, P.
Marshall, S.S. McBride, N. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Power, C. Sanderson, R. Speirs, D.J.
Tarzia, V.A. Teague, J.B. van Holst Pellekaan, D.C.
Whetstone, T.J.
PAIRS
Gee, J.P. Cowdrey, M.J. Hughes, E.J.
Wingard, C.L.

Amendment thus negatived.

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

Amendment No 15 [Mullighan–1]—

Page 7, lines 4 to 12 [clause 6, inserted section 4C(4) and (5)]—Delete inserted subsections (4) and (5)

This is something that the opposition is quite concerned about. It seems to be part of an attempt by the government in the bill to more clearly define what constitutes a document. Earlier, we saw references to electronic documents and so on, and here we see reference to an electronic backup system. For the benefit of the chamber, subsection (4) provides:

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

I am looking forward to hearing the Deputy Premier's argument here because, on reading this subsection, what it would mean to our mind, in practice, is that when a freedom of information application is lodged and the applicant puts a description of the documents to which they are seeking access, it is most common practice for the person handling that determination to enter that description, or something similar to the description, in a document management system, not necessarily to riffle through physical filing cabinet after filing cabinet to see if there are hard copy documents that match that description. They conduct an electronic search.

They may also take other steps. For example, they may send an email to their colleagues in the agency outlining the fact that there has been an application, the terms of the application and the description of the documents that are sought by the application, this all being done electronically. Really, what we are concerned about here is the concept of the electronic backup system. We have electronic document management systems, and we also have a server or servers that are used by agencies where documents are stored, their document management system effectively being software that can be used to search through and provide access to documents held on that server.

If the government is intending essentially to remove access to documents because they are held on an electronic backup system, then at first blush it would seem that documents held electronically on those servers—those servers that are backed up usually at least once a day, usually at least overnight if not more often—will no longer be accessible. The reason why, further to that, is that a document will only be held on that system if it has been lost to the agency, destroyed, transferred or otherwise dealt with in contravention of the State Records Act, which provides an even greater stricture.

Maybe there is an explanation for this. Maybe this subsection interacts with another part of this bill, another subsection or another clause, but I have to say on face value this seems to me to be a further constriction of access to documents merely by virtue that they are held and stored electronically and backed up. It is, I would say, the regular and normal thing for electronic backup systems to be interrogated for documents when document searches are being undertaken by those officers responding to freedom of information applications.

If that is now to be constrained by the insertion of this subsection, that is something that is unacceptable to the opposition, and we do not support that. Furthermore, subsection (5) also says:

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

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

The Hon. S.C. MULLIGHAN: So that is the first part of the amendment, the deletion of subsection (4). What the amendment also does is delete subsection (5) and, as I was saying, that is:

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

I cannot speak with authority as to how many agencies have their servers managed by other, presumably larger, agencies. But I would imagine that if we have a regime where an agency effectively enters into an agreement with another agency to manage its freedom of information obligations—as we have previously discussed, a small agency, for example, entering an agreement with a larger agency to manage freedom of information applications—in a similar vein, it is not unusual then to think that there are small agencies that make use of larger agencies' document backup systems—electronic backup systems, to use the language of the bill—or servers on which documents are held, to describe it another way.

What this would mean is that, reading it at face value, if an agency maintains that backup system on behalf of another agency, it will not be deemed to hold the documents for the purposes of being able to respond to a freedom of information application. On that basis, that is unacceptable to the opposition. So I am looking forward to hearing what the Deputy Premier has to say, as I always do with her contributions, and I stand to be so enlightened.

The Hon. V.A. CHAPMAN: I am advised in relation to this matter that this amendment will delete the proposed new provisions that set out what an agency is expected to do in respect of searching and restoring documents from backups. As I am reminded by my brilliant adviser here, there is an email storage system through DPC, which commonly provides an electronic backup for emails, for example.

This was a recommendation of the Ombudsman. It was part of a series of amendments designed to update the FOI Act to account for the developments in the electronic document management. It is based on provisions contained in the equivalent of the New South Wales and Queensland acts. Cited are examples of what they say are modern freedom of information laws. The Ombudsman has presented to us a recommendation that we look at these and include them. I am being advised, though, that the email system we have in DPC is separate. Can I just try to reassure the member that the proposed new section 14B(4) sets out the following:

The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of documents and information stored electronically.

So there is an obligation to do that in the first instance. If I get this right—I am sure I will be advised if I have not got this right—I suppose what this is relieving is as follows. If the electronic search is done, and say there is no document identified, and there may be an original somewhere but which is entitled to have been destroyed—it may be a very historical document—then there is not an obligation to go on and search for that or for the electronic equivalent of it, if it could have been destroyed under the State Records Act. These would be minor and very old documents.

That is why it is there. The Ombudsman thinks that is reasonable. We think that the member should be satisfied that we have a very clear obligation under new section 14(B), which sets out all of the obligations of the agency when searching for documents held by that agency. So for that reason the opposition will be opposing this amendment.

The Hon. S.C. MULLIGHAN: The government will be opposing the amendment. Old habits die hard. I am to understand from the Deputy Premier's explanation that we have provisions in clause 13, which is the new 14B: agencies must undertake such reasonable searches as may be necessary using the most efficient means reasonably available to the agency, and the obligation extends to searches using resources reasonably available, including the retrieval of documents and information stored electronically.

However, if that is then ceased by these provisions, where, if there is a minor document or a document that is presumably of a certain age, which the State Records Act might say—it is more than five years or seven years, I think—is no longer is required to be kept, then the document is not to be searched for or not to be released if it is found or discovered by some means.

I am surprised that the Deputy Premier, if I have that right, would move such an amendment, because she probably recalls the lengthy fracas that consumed a lot of her efforts and some attention of the government during 2013, when the Deputy Premier and the now Premier were convinced there was some smoking gun in the then Premier's office about who knew what when with regard to a sexual assault at a western suburbs primary school.

There were all sorts of document searches. There were freedom of information applications, of course, as you would expect. There were determinations of not being able to find the document, which—and I cannot say this conclusively because I was not involved in the process—I presume included a search of emails of staff involved. It even proceeded to the point of interrogating the Department of the Premier and Cabinet's email backup server, which did not, to the now Deputy Premier's chagrin, probably satisfy her desire to locate a smoking gun in that regard.

We have that experience that some of us recall, and now what we have is a measure in the bill which, according to the Deputy Premier, would say that the State Records Act says that documents, physical or electronic, are required to be kept, but some documents, if they are only stored in an electronic backup system, are not there to be either discovered or, if they are discovered, are not to be released to an applicant.

I am surprised by that. I do not know whether DPC superintends the email backup server for all state government agency emails. That may be the case but I do not know whether that is the case. I know that we are not strictly part of government, but there is a government agency that superintends our email server in the Department for Transport. I do not know whether, for government proper, all of those emails are managed by DPC and the backup server.

If what the Deputy Premier is saying is that if an email, for example, cannot be located through an initial search—a search of perhaps agency staff computers or documents attached to emails etc.—then they are not required to go to the electronic backup system, that DPC-managed server, to have a look. If that is the case, perhaps I can ask whether the Deputy Premier can confirm that or not.

If that is what is intended here, I find that very surprising because in opposition she railed against not being able to access such documents, notwithstanding the fact that they did not exist. Now, in government, she is telling us that no, indeed, we should not be able to access those documents after all; is that correct?

The Hon. V.A. CHAPMAN: I will try to explain it this way for the member. This is only providing a relief to the person conducting a search if the original document lawfully could have been destroyed, to not have to go back to try to find something in a backup, if it is already able to be destroyed.

The Blewett example, if I could put it as general as that, as it has been referred to, was a somewhat different aspect. That related to an alleged email and trail that was identified in response as being a search having been thoroughly undertaken, and there was no location of the said email is my recollection of what happened in that matter. That is, it did not exist at all. A search was done in relation to the backup and it did not exist. That was my recollection. I may be wrong, but that was my recollection. The then government took the view that there was nothing to produce because it did not exist.

That is somewhat different from this. This only relates to a relief on the searcher if in fact the item that is being searched is lawfully entitled to have been destroyed. You do not have to keep going through that process. I distinguish it from the matter that the member has raised. As I say, this is not something that has had its genesis from the department or from parliamentary counsel. This is the Ombudsman suggesting that this is an approach which is reasonable, which applies in other jurisdictions and, I suppose, is the reconstruction of a document.

Let's be clear, the general position of the Ombudsman was you are entitled to identify the limits about what sits around the obligations and the agency, our department, parliamentary counsel, somebody in the drafting of it has identified this as being commensurate with the Queensland and New South Wales acts. Of course, the Ombudsman has reviewed the bill and endorsed that arrangement.

The Hon. S.C. MULLIGHAN: I thank the Deputy Premier for her explanation. It is difficult for anyone outside the government to know that because, of course, we do not have the Ombudsman's submission on the freedom of information bill. We do not have any correspondence from the Ombudsman about how he feels about the changes in the bill. All we have is the assurance from the Deputy Premier that the Ombudsman has recommended, if I get this right, that an agency may place limits on how it searches for documents, including electronic documents, and that it is either a member of parliamentary counsel or a member of the Attorney's department or even a member of her staff or maybe even herself who has worked up this particular stricture about how an agency may be restricted in its obligation for searches.

You can probably understand, sir, why we would have some concerns about this. Not only do we not clearly understand the Ombudsman's position on this but we are also not in receipt of corresponding set of examples about what the State Records Act requires in terms of the maintenance of the copies of documents within government—whether they are physical copies; whether they are electronic copies; whether it is an age-related requirement of, say, five or seven years or some other period of time; or whether it is something about the status of documents which requires their retention or otherwise.

Although I appreciate the Deputy Premier's attempts to enlighten me about this, and while I understand her quite reasonable linking of these subsections to the later subsections that she made reference to in the new 14B, unfortunately I remain unconvinced. I still seek that my amendment in this way proceeds and is supported by the house.

Amendment negatived; clause as amended passed.

Clause 7 passed.

Clause 8.

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

Amendment No 16 [Mullighan–1]—

Page 7, line 22 to page 8, line 3 [clause 8, inserted section 8A]—Delete inserted section 8A

This is to delete the proactive disclosure principles which, in the opposition's view, would find themselves a much better voice in the objects and principles section of the act. Unfortunately, the far more prescriptive, rigorous and beneficial amendment which the opposition put was not supported by the government. It once again used its numerical majority in this place to crush openness, accountability and transparency in that regard.

However, I seek to proceed with this because the proactive disclosure principles as set out in the Deputy Premier's bill commenced to attempt to require in the act some form of proactive disclosure regime. Unfortunately, all we have in the Deputy Premier's bill are these principles and a fairly vague requirement in the following 8B over the page, which requires that the Premier must come up with a proactive disclosure policy.

It does not really require anything else, other than that policy be published in the Gazette and that agencies are subject to the policy. There is nothing that says what the policy should require, which is a serious deficiency of the Deputy Premier's bill. It is making the right noise around proactive disclosure, without actually saying anything.

A proactive disclosure regime, as you will see in my subsequent amendments, should be quite specific about the documents and information that are to be required and, not to foreshadow a later debate, if we are lucky this evening or if we are unlucky on another date, about the minimum requirements of a proactive disclosure regime, you will see in a subsequent amendment that it should be extensive. It should require quite specific disclosures of either types of information or types of documents from government agencies, otherwise this is just window dressing. This is just requiring a proactive disclosure regime without actually requiring that the regime do anything at all.

Indeed, it is conceivable that the Premier might put together a proactive disclosure policy that does not require the proactive disclosure of really anything at all. Maybe that is what the government is seeking to achieve here. Maybe they want the perception of a proactive disclosure regime without actually requiring the publication of any information at all.

I can only presume that that is the case because the bill is so light on in what a proactive disclosure regime might be. Taken in conjunction with the other elements of the Attorney's bill that restrict access to documents and information and waters down the public's right to their government's openness, accountability and transparency, this is something that we cannot support. Accordingly, our amendment No. 16 seeks to remove this proactive disclosure set of principles because really they do nothing whatsoever.

The Hon. V.A. CHAPMAN: Ye of little confidence. I indicate the government opposes this amendment. This amendment, together with amendments Nos 17 and 18, would replace the proposed broad set of principles of proactive disclosure. That proposed proactive disclosure policy will set out the details of which agencies, including which councils, universities and other public bodies included as agencies for the purpose of the act, must publish what information pursuant to the new proactive disclosure requirements in the act.

The amendment proposes to replace these principles with a detailed list of requirements as to what must be published by agencies. These listed requirements may be responsible for state government agencies and larger councils and are intended to form the basis of the policy as it applies to those types of agencies, but they may be excessively onerous or some not relevant for bodies such as small regional councils and other public bodies falling within the definition of agency for the purpose of the act.

Further, the government is concerned not to duplicate disclosure requirements imposed on councils under the Local Government Act and other legislation. This is a matter that the member for Frome has raised. With impending reforms to local government legislation, including in relation to the publication and sharing of information by councils, the approach of the bill is to leave the details of what must be published under the new requirements to the proactive disclosure policy now proposed to be prescribed in regulations. Members will note that there is an Attorney-General amendment on file to do just that.

This approach ensures flexibility to ensure that the two schemes do not duplicate reporting requirements by council and thereby put upward pressure on council rates. This amendment would also require agencies to publish quarterly reports on an array of statistics detailing their administration of the act, including on each type of application and extension under the act. This information is already published annually in the annual report of the agency's administration of the FOI Act, required under section 54 of the act. Requiring this information to be published quarterly rather than annually is excessively onerous and costly, with the costs likely exceeding the benefit to be derived by the public from the requirement.

The member would have also seen the proactive disclosure amendments which will be no doubt dealt with in committee shortly. In any event, those proactive disclosure policies that were requested to be considered by the member for Frome, which are to be in amendments that will stand in my name, are to accommodate just that. I would just like the member to be assured. It seems he is not. It seems he takes the view that unless now everything is in the statute and there is a prescriptive list, that it is not good enough, they cannot trust the government to have a proactive disclosure.

Just on this recent issue in relation to entitlements of members of parliament, as a government, the Premier has announced now a monthly disclosure of material. We are more than happy and we have demonstrated in the early life of this government that we are proactive in relation to disclosure. I find it quite offensive of the member to suggest that this is something that is contrary to what we are proposing. The government have demonstrated our bona fides in this regard and accordingly oppose the amendment.

The Hon. S.C. MULLIGHAN: I am surprised I was not asked to apologise and withdraw if it is so offensive to the Deputy Premier. The reason why is that the Premier cries crocodile tears over this. The government does not have any bona fides when it comes to transparency, in particular to the specific example that she just gave regarding the country members' allowance. The government has made no commitment whatsoever. The parliament—

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: Yes, and you are right to point to the Speaker because they are documents not of the government; they are documents of the parliament. It was not the government or the Premier or any cabinet minister who made a decision to release them. In fact, if we can park the revisionist history for a moment, let's perhaps restore the true and correct record of what happened which led to the country members' accommodation allowance scandal. There was an ABC investigative report, and subsequent to that there was a demand from the opposition, led by the Leader of the Opposition, that the former Speaker, the member for Hartley, release that information.

In the course of the ensuing days, we had assurances from the Premier that that was not required and that this was merely a series of unfortunate 'administrative errors'. However—and I have to say: credit to the member for Hartley—despite the Premier's insistence that there was nothing to see here, he released 10 years worth of that information, which the Premier deliberately and misleadingly tried to claim in the media was his initiative. It was not his initiative; it was the initiative of the Speaker of the house, someone who is separate from the government.

So please spare us the misleading rehashing of recent history about how open and transparent this government is because those documents were not made available to the public by the government. Those documents are not made available to the public by the government; they are made available by the parliament; they are made available by a decision of the Speaker. It was not the government's initiative to do that. To rely on that in the course of this debate only further undermines any confidence in the government's commitment to accountability and transparency. I am glad we can correct that.

If we even want to take the matter a little further, the Deputy Premier says, 'Trust us. We're open and transparent.' We have several amendments here to clause 8. We have the amendments that I am moving, we have the amendments that the member for Frome is moving and we have an amendment that the Deputy Premier is moving. The Deputy Premier on this clause is seeking to remove the legislative prescription that the Premier must cause a proactive disclosure policy to be issued, and says merely that regulations may require a proactive disclosure policy. So even the Deputy Premier's own bill is getting hosed down further in a further diminution of accountability and transparency.

So, please, spare us the fake offence that has been taken about our distrust of the government and its commitment to openness and transparency. It has not demonstrated its chops in this area. In fact, we get a common media report, whether it is in The Advertiser, a TV station, InDaily or some other format, of ministers constantly refusing to meet the current requirements of proactive disclosure. If the Deputy Premier wants to know why we want this enshrined in legislation, it is pretty clear: because the government will not do it and cannot be trusted to do it on its own volition. It must be in legislation, it must be necessarily very prescriptive or, quite frankly, you cannot trust the Liberal government to make the information available to the public of South Australia.

The Hon. V.A. CHAPMAN: I note the position of the opposition in relation to this matter. I maintain on behalf of the government the commitment we have made in relation to proactive disclosure, stimulated by matters raised by the member for Frome and his concerns about extra obligations on councils and smaller agencies.

We have listened to that and we agree. We also agree that it be secured in regulation form. I maintain a position of the government's bona fides in this regard. The initiative of the government was nothing to do with that diatribe that I have just heard from the member for Lee, it was to deal with the obligation to meet monthly disclosure and support of monthly disclosure of material. The member for Lee is quite mischievous in his assertions in that regard. However, given the hour, I propose that the committee report progress.

The CHAIR: Attorney, it is certainly your prerogative to move that. The other thing we could do, and it is entirely up to you, is we could at least deal with this amendment if you want to. We are well on our way through this amendment at least, I understand, member for Lee; and we could at least pass this.

Members interjecting:

The CHAIR: I had better withdraw that. We could at least deal with this amendment.

The Hon. V.A. CHAPMAN: Yes, I am happy if you put it that way.

Ayes 18

Noes 22

Majority 4

AYES
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. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Power, C. Speirs, D.J.
Tarzia, V.A. Teague, J.B. van Holst Pellekaan, D.C.
Whetstone, T.J.
PAIRS
Gee, J.P. Wingard, C.L. Hughes, E.J.
Sanderson, R.

Progress reported; committee to sit again.

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