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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-26 Daily Xml
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CIVIL LIABILITY (DISCLOSURE OF INFORMATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2013.)

The Hon. S.G. WADE (12:41): I am glad that the President had the opportunity to honour a very esteemed former member of this place and a much-loved former minister for transport.

The Hon. J.S.L. Dawkins: I'm not sure she's listening to you either.

The Hon. S.G. WADE: I am afraid that, as is often the case, the Hon. Di Laidlaw is renowned for having opinions and being keen to share them, and even the President's greeting could not disturb her from sharing her views.

The Hon. J.S.L. Dawkins: She never listened to the whip when she sat next to the whip.

The Hon. S.G. WADE: It is bringing back memories for the whip, as well. Nonetheless, I shall return to the matter before us. The Civil Liability (Disclosure of Information) Amendment Bill 2013 has been introduced in typical Labor government style.

At two minutes to midnight, the government announces that its culture of secrecy is a thing of the past and they will now throw open the doors of government to the public for all to see. Well, not quite. At the last possible opportunity they have brought this bill into the parliament and they have made it their lowest priority. When announcing this policy on 4 September, the Premier was quoted in an article in The Advertiser as saying:

'People have to be accountable for what they spend on public money.' Mr Weatherill said the public would be 'cynical about government if they think it's being used for the wrong purpose, including for private benefit. I want people to be confident about government because I want to run a progressive, reformist government. I can't achieve what I want to achieve if people are cynical about government.'

The reason why people are cynical about the Weatherill Labor government is because they continue to go out announcing policy and then failing to deliver. The Premier says the credit card spending of ministers, their staff and departmental chief executives will be released 'as soon as possible', yet here we are almost three months later and the legislation to enable that release is the lowest priority on the government's agenda.

The bill seeks to provide the Crown with immunity from civil liability in respect of the release by, or on behalf of, government agencies of information, but only in respect of the publication of information of a prescribed kind, or in respect of the publication of information in circumstances prescribed by regulation. The kinds of materials listed in the relevant Department of the Premier and Cabinet circular are:

details of credit card expenditure for all cards held by ministers, ministerial staff and chief executives;

details of ministers' overseas travel arrangements;

details of costs relating to mobile phones held by ministers, ministerial staff and chief executives;

details of expenditure relating to hosting and attending functions by ministers, ministerial staff and chief executives;

details of consultants engaged and cost to the agency;

agency gift registers;

details regarding procurement within government departments; and

a list of capital works projects including a description and expenditure.

I am advised that the government has not drafted the intended regulations. However, it claims that it anticipates the regulations will prescribe only three classes of information. Firstly, general information about government agencies and their operations being the type that is commonly sought and released under the FOI Act, such as details of credit card expenditure, travel, mobile phone usage and entertainment expenditure by ministers, their advisers and senior public servants, and information about consultancies, gifts received and agency procurement practices.

Secondly, it is understood the regulations are intended to cover submissions on government policy initiatives. Thirdly, the regulations are intended to cover information released in accordance with government-wide disclosure policies and information of a non-personal nature that has already been sought and provided to an applicant under the FOI Act.

Of course, by the time the government has actually prepared the regulations, the parliament will be well and truly in the non-sitting phase of the calendar. Whether we will in fact actually see any documents or information disclosed by this government under this legislation remains to be seen. Like so many other things this government has promised, they have left it to the last possible minute when it may not have any bearing on them at all, depending on the outcome of the election. One of the barriers to agencies proactively disclosing information outside the FOI Act is that they are not able to rely on the protection of section 50 of the FOI Act, and publication of information could give rise to a cause of action against the Crown.

Under the Public Service Act, public servants are personally protected from civil liability when exercising official functions and powers. The Crown has some protection from defamation in respect of documents issued by agencies for public information purposes. However, the Crown has no general immunity from civil liability in respect of the release of information outside of the FOI framework. Under section 50 of the Freedom of Information Act, the Crown has immunity from civil liability for defamation and breach of confidence in respect of the granting of access to documents under that act.

The opposition is of the view that the breadth of that immunity is sufficient for what the government is trying to achieve. We do not think that the full breadth of immunity that they propose in this bill is appropriate, especially since it is not extended to all the South Australians who may produce the material they release. For example, if the government releases a submission it received from the public, the public servant will receive protection, but the person who wrote the submission will not. That is explicit in proposed section 75A(2). That is regardless of whether the material submitted to the government was intended for public consumption or not. If the media did exactly the same thing as the government is proposing to do, they would carry full liability.

The opposition accepts that full liability may present a barrier to the transparency that we would all seek. However, we also consider that full immunity is a step too far, so I will be moving on behalf of the opposition to limit the immunity in the bill to the extent which is currently provided in section 50 of the Freedom of Information Act, namely for defamation and breach of confidence. It is our view that if that level of protection is appropriate for freedom of information purposes, then it should also be appropriate for this sort of disclosure. I seek honourable members' favourable consideration of the amendment and look forward to the committee stage of the bill.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (12:49): I do not believe that there are any other second reading contributions to this bill. I thank the opposition for its indication of support and look forward to this being dealt with in the committee stage on the next day of sitting.

Bill read a second time.

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