Civil Liability (Disclosure of Information) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:33): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

For more than 20 years the Freedom of Information Act has provided the public with a legally enforceable right to access information held by State Government, Local Government, and the three State Universities. The FOI Act is well utilised by members of the public, including Members of Parliament and the media, with 12,328 applications made to government agencies in the 2011-12 financial year, of which 85% of information was released in full or in part.

FOI access comes at a cost. In the 2011-12 financial year the estimated total cost of administering the FOI Act was reported as $10.4 million. Agencies only recovered some $222 000 of this through application fees and charges. This cost, which is considered a conservative estimate, has progressively increased since 2002. This, in part, reflects the increasingly broad and complex nature of FOI applications received by some agencies.

Although the FOI process is often described as the option of 'last resort' and the objects of the Act clearly state Parliament's intention that disclosure should be favoured over non-disclosure, some applicants report difficulties in obtaining information they have requested, including time delays and prohibitive costs. Government agencies administering the FOI Act report a culture of risk aversion and a reluctance to release information outside of the FOI Act.

One of the barriers to agencies proactively disclosing information outside of the FOI Act is the lack of protection from legal liability, meaning the proactive publication of information could give rise to a cause of action against the Crown.

Section 50 of the FOI Act provides the Crown with immunity from civil liability for defamation and breach of confidence in respect of the granting of access to a document under that Act.

While public servants are themselves protected from civil liability when exercising (or purportedly exercising) official functions and powers by the Public Sector Act, and the Crown has some protection from defamation in respect of documents issued by agencies for public information purposes, the Crown has no general immunity from civil liability in respect of the release of information outside of the FOI framework.

Understandably, this lack of protection weighs heavily on the minds of public servants when considering whether to release information proactively.

The Civil Liability (Disclosure of Information) Amendment Bill seeks to address this.

The Bill amends the Civil Liability Act 1936 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 need to prescribe the kinds of information, or the circumstances of release, will limit, through Parliamentary scrutiny of the regulations, the scope of the immunity.

I expect that the list of prescribed kinds of information or prescribed circumstances will, at least initially, be quite limited. While the kinds and circumstances of release are yet to be finalised, the Government anticipates the regulations will prescribe only:

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;

submissions on government policy initiatives;

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.

I should make clear that the Government has no intention of prescribing information of a personal or sensitive nature or information that is commercially sensitive.

Further limiting the immunity provided by the new provision is that the civil liability of the author of the information (for example, the person who provides a document to a government agency) or a person or organisation who re-publishes information released by a government agency (for example, a media organisation) will not be protected by the immunity. It is the Crown and the Crown alone that is protected.

This amendment will not require a government agency to release information or documents. Rather, it will provide the Crown with a degree of legal protection where information or documents is or are released proactively. In so doing, this reform is aimed at encouraging greater proactive release of information by government agencies, thereby reducing the number of freedom of information requests received by government agencies and protecting the Government, and, by extension, the taxpayer, from civil liability arising from the proactive release of information by government agencies.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Civil Liability Act 1936

4—Insertion of Part 9 Division 12A

This clause inserts new Division 12A into Part 9 of the Principal Act.

That Division contains new section 75A, excluding all civil liability (whether in tort, contract, equity or otherwise) of the Crown arising out of the publication by, or on behalf of, the Crown of information of a kind, or in circumstances, prescribed by the regulations.

The new section does not affect the civil liability of the original author of the information, or a person or body other than the Crown who publishes the information.

Debate adjourned on motion of Hon. T.J. Stephens.

At 17:34 the council adjourned until Tuesday 28 October 2014 at 14:15.