Civil Liability (Disclosure of Information) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2014.)

The Hon. A.L. McLACHLAN (16:32): I rise to speak to the Civil Liability (Disclosure of Information) Amendment Bill and to set out the position of the Liberal opposition. Open and transparent government decision making is a foundation stone for a functioning and healthy democracy. This bill seeks to provide protection to the government releasing information outside the legislated freedom of information process. The bill amends the Civil Liability Act 1936 to provide the Crown with immunity from civil liability in respect of release by the government of certain information as prescribed by the regulations.

We are advised by the Attorney-General in the other place that the bill is motivated by a desire to release more information or more material at a faster pace. We do not find fault with those motives. However, we have some concerns with the bill and will seek amendments to narrow the scope of the immunity from liability.

We are told by the government that there is a need for legislative change because of a fear within government offices of litigation and liability upon release of information. We do not at this stage see that there is sufficient evidence to justify this assertion. It also begs the question why we need to have these amendments when there probably should be a greater focus on improving the operation of the existing FOI regime.

The Liberal opposition believes that the blanket exemption from liability is too broad. We will introduce amendments that restrict the limitations of liability to mirror those in the FOI Act itself, namely, for defamation and breach of confidence. We note that other jurisdictions with similar laws have not found it necessary to have an all-encompassing limitation of liability.

The commonwealth has defamation and breach of confidence and extends it to copyright and criminal liability. Our sister jurisdictions of Tasmania and New South Wales, it is our understanding, have limitations of liability restricted to defamation and breach of confidence. We do not find it convincing that restricting the proposed exemption from liability will result in elaborate vetting processes, mirroring those under the FOI Act.

The government has flagged that it will only prescribe a limited class of information that will be released. The limiting of the class will not in itself, in our view, facilitate speedy disclosure, nor do we accept the proposition that, by allowing the government to prescribe certain information for release, this in itself will restrict the operation of limitation of liability. In our view, it is not an appropriate mechanism where a government has the discretion whether to expand or limit the scope of a limitation of liability. In our view, our sister jurisdictions and the commonwealth have the policy settings correct. We support the passing of the second reading, but will be seeking amendments in committee.

The Hon. T.T. NGO (16:35): I rise today to commend the Civil Liability (Disclosure of Information) Amendment Bill to members. By providing the Crown with a general immunity from civil liability in regard to the release of information beyond the legislative framework in the Freedom of Information Act 1991, the bill seeks to increase the availability to South Australians of information about their state government, local government authorities and state universities. The immunity will operate where information is proactively disclosed and within certain parameters, which I will outline.

This presents a further development in the government's commitment to greater transparencies and greater accountability in its operations, a commitment that has grown over the years. Indeed, a trajectory exists. Interestingly, while Australia was not the first country to legislate for freedom of information (which was achieved in 1982), it was a leading nation in the introduction of FOI laws in a Westminster system and in the frontline, in fact, of the majority of over 80 countries that now benefit from such laws. The states and territories, of course, subsequently followed the commonwealth's lead and, as consumer advocate Ralph Nader said in a message to Australians on the 30^th anniversary of the commonwealth legislation:

We should constantly strive to use, strengthen and expand this wonderful law.

I endorse those sentiments, particularly in an atmosphere of rising levels of official secrecy in the federal sphere, an issue about which I believe we should all be extremely concerned.

The Hon. S.G. Wade: What did the Ombudsman say about your government, Tung?

The Hon. T.T. NGO: Not as bad as the current government. That is one of the reasons why I welcome this amendment to the Civil Liability Act 1936. It is intended to provide certain protections to the Crown where information or documents of a prescribed nature are released proactively. I will return to the idea of proactive release in a moment.

As the Minister for Sustainability, Environment and Conservation indicated in his excellent second reading speech last month, for more than 20 years the Freedom of Information Act has provided the public with legally enforceable rights to access information held by the state government, local government and the three universities. The provisions of the FOI Act are frequently used by South Australians, including the media and members of parliament, and I note a few of us here have used it predominately.

In fact, if I may provide an update to the figures to which my colleagues referred on 16 October, according to the 2012-13 annual report 186,039 applications have been received since the law's enactment. A total of 11,959 applications were made to government agencies in 2012-13, of which 11,059 were determined and 85 per cent of information released in full or in part.

As the minister so saliently pointed out, FOI access is costly. He mentioned that in the 2011-12 financial year the estimated total cost of administering the FOI Act was reported as $10.4 million. So, the 2012-13 annual report discloses the total cost for that financial year was $10.1 million—a 2.9 per cent decrease attributed to curtailed expenditure on training, legal advice and equipment and administrative costs, and perhaps in part to agencies disclosing information outside the FOI legislation. In 2012-13 agencies reported recovering $526,553. Of this amount, 29 per cent, or $153,537, was collected as application fees.

The breadth and complexity of applications received grows every year and, even though disclosure of information through the operation of the FOI Act is the overarching intention of the legislation, applicants can encounter those age-old problems of cost and delay in this environment just as they may elsewhere. The avoidance of risk in regard to the release of information has also been cited as a factor in the overall equation.

This is where proactive disclosure allows government held information to be released to the public without the need for an FOI application, putting that information out more quickly and at a lower cost, reducing the time and resources expended by agencies in responding to individual applications and showing the government's commitment to accountability and transparency.

So, what is the downside? While the FOI Act provides the crown with immunity from civil liability for defamation and breach of confidence where access to documents is granted under that act, the question is one of legal liability where information is released outside the FOI Act. As I have noted, the crown presently has no general immunity from civil liability under these circumstances.

The bill before us today amends the Civil Liability Act 1936 to provide the crown with immunity from civil liability consequent to the release of information by or on behalf of government agencies, but only where the publication of information is of a prescribed kind or where the information is published in circumstances prescribed by regulation.

Furthermore, the scope of the immunity will be limited by parliamentary oversight of the regulations. The list of prescribed kinds of information or prescribed circumstances will, at least initially, be quite limited, and it is anticipated that the regulations will prescribe only:

general information about government agencies and their operations, the nature of which has been outlined by the minister;

submissions on government policies and initiatives; and

information released in accordance with government policies, as well as non-personal information that has already been released to the applicant under the FOI act.

Information that is commercially sensitive and information of a personal or sensitive nature will not be prescribed.

Further limiting the immunity provided by the new provision is the fact that the immunity will not cover the civil liability of the author of the information, nor that of a person or organisation which republishes information released by a government agency. The Crown alone attracts the protection. This amendment will not compel a government agency to release information or documents. Rather, it will provide the Crown with a degree of legal protection in circumstances where there is proactive release of information or documents.

As a result, it is envisaged that there will be increased proactive release of information by government agencies, reducing the number of freedom of information requests received and protecting both the government and, as a corollary, the taxpayer, from civil liability arising from that release. I once again commend the bill to the members.

Debate adjourned on motion of Hon. S.G. Wade.