Civil Liability (Disclosure of Information) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2014.)

The Hon. J.A. DARLEY (15:37): I rise to speak on the Civil Liability (Disclosure of Information) Amendment Bill. According to the government, the purpose of the bill is to provide the Crown, and the Crown only, with legal protection where information is or documents are released proactively. This will be achieved by providing the Crown with immunity from civil liability in respect of the release of information by or on behalf of the government or its agencies. That immunity will be limited to the release of information of a prescribed kind.

The need to prescribe the kinds of information or the circumstances of release is also intended to limit, through parliamentary scrutiny of regulations, the scope of the immunity. At this stage the government anticipates that the regulations will prescribe general information about government agencies and their operations, such as details of credit card expenditure, travel, mobile usage, entertainment expenditure, and information about consultancies, gifts received and agency procurement practices, submissions on government initiatives and policy initiatives, information released in accordance with government-wide disclosure policies and information of a nonpersonal nature that has already been sought and provided under the Freedom of Information Act.

I note that the opposition has raised a number of concerns in relation to this bill and has sought to move amendments to address those concerns. Those amendments were defeated in the other place but will be reconsidered in this place. The aim of the amendments is to limit the immunity to areas of defamation or breach of confidence.

As I understand it, one of the reasons for those amendments is that a blanket immunity has the potential to result in people becoming complacent and even a bit lax in terms of carrying out their duties without any repercussions. The counter argument is that in most instances a person would be pursued for defamation and, given that such cases would fall under the exemption, there is little point to the amendments. For the record, I think there is some merit to the argument put by the opposition, and I will be considering those amendments.

I appreciate that in this instance we are dealing with issues of immunity from civil liability under the Civil Liability Act, but it is nevertheless important to consider this in the context of the broader issues around FOI processes. The Hon. Mark Parnell recently made reference to the annual report of the Ombudsman, which was tabled during the last sitting week. On page 11 of the report, the Ombudsman states the following about our FOI laws:

the agencies’ implementation of the Act is wanting, and demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act…

six of the 12 agencies failed to determine over 50 percent of access applications within the timeframe required by the Act

most of the agencies do not understand how to apply the exemptions and the public interest test under the Act

it is common practice across all of the agencies to provide copies of FOI applications, determinations (draft or otherwise) and documents to their Minister to ‘get the green light’ prior to finalisation of access requests. While the Act permits a Minister to direct their agency’s determination, evidence provided to the audit strongly suggests that ministerial or political influence is brought to bear on agencies’ FOI officers, and that FOI officers may have been pressured to change their determinations in particular instances. If a ministerial decision or direction is involved, it should be clearly set out in the agencies’ determinations

the agencies’ Chief Executives are not providing FOI or pro-information disclosure leadership. In nine out of the 12 agencies, there is no directive at all from the Chief Executive, senior management or the Minister about the operation or implementation of the Act

only one agency stated that it has ever released an exempt document, despite the discretion to do so under the Act.

The Ombudsman goes on to provide:

…in my view, the jurisdiction needs an independent FOI champion who can not only conduct reviews, but also provide training and monitor agencies’ compliance with information disclosure. I addressed this issue in my audit which I have referred to above.

In the Independent Commission Against Corruption inaugural annual report, Justice Lander also warned public servants, and especially ministerial staffers, against using personal email accounts to circumvent FOI rules. I simply make the point that our FOI laws and processes are certainly in need of some reform, and this position certainly has the backing of our independent statutory officers.

The intent of this bill is to ensure that documents are released proactively, which I imagine is intended to go some way towards addressing the criticisms that have been made of late. That is something that I support; however, I think we also need to exercise caution and ensure that we do not go too far in the other direction. We do not want to end up with a situation whereby information is released without any regard as to its nature simply because of the protections afforded against civil liability. With that, I support the second reading of the bill.

The Hon. G.A. KANDELAARS (15:43): I rise to support the Civil Liability (Disclosure of Information) Amendment Bill. I note that the Hon. Andrew McLachlan, in his contribution, stated that open and transparent government decision-making is the foundation stone for a functioning and healthy democracy. The government agrees. This bill is designed to foster an environment within government to encourage proactive disclosure to the greatest extent possible outside of the existing FOI process. The bill seeks to amend the Civil Liabilities Act 1936 to provide the Crown with immunity from civil liability in the event of the release by the government of certain prescribed information.

The bill has been drafted so as to provide the Crown with a broad exemption from liability. This is deliberately so. The government and the opposition appear to disagree on this point, but that is not to say that the government does not understand where the opposition is coming from. Of course, there is a balance that needs to be met between government responsibility and encouraging the disclosure of information. They need not always be mutually exclusive, although, in practice, each needs to be considered in conjunction with the other.

The bill seeks to exempt the Crown from legal liability in tort, equity, contract or otherwise. The opposition seeks to limit this exemption to liability in defamation or breach of confidence. The government has received Crown advice to suggest that a limit such as that proposed by the opposition has the potential to leave the Crown exposed to some forms of legal liability, for instance, in breach of contract (perhaps in the context of confidentiality provisions) and in tort (perhaps in the case of negligent misstatement).

The intent of this bill is to ensure that the culture within the public sector is one of default disclosure. However, should it be necessary for a team of qualified legal people to review government information with a view to which, if any, kind of legal liability may arise, it is the government's fear that the intent of this bill may not be met. As I said earlier, the intent of government here is to ensure that there is a culture within the public sector to proactively disclose, to the greatest extent possible, information without the need to use the existing FOI process. It would be a great disappointment if, because of the amendments proposed by the opposition, that disclosure was limited because of fear of legal liability arising as such. I encourage all members to support the bill unamended.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:47): I do not believe that there are any further second reading contributions to this bill. I thank honourable members for their contribution and I thank those who have indicated their support. I look forward to dealing with this bill expeditiously through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. M.C. PARNELL: I have a question for the minister at clause 1, and my question relates to the type of immunity the Crown is seeking. The bill provides for quite an expansive list of types of actions that might be brought against the government. My question is: apart from defamation, what other causes of action are likely to be brought against the government for disclosing information?

The Hon. G.E. GAGO: I am advised that there is a range of actions, and these include things like negligent misstatement, breach of confidentiality and tort against invasion of privacy—just a few.

The Hon. M.C. PARNELL: I thank the minister for her answer. The Law Society, when writing to members about this bill, said the following. I will just quote one sentence from their submission:

The Society has recently, and on several occasions, objected to the unhelpful practice of leaving the substantive provisions of a Bill to regulation, and in this instance, unwritten regulation. This objection is repeated in relation to this Bill.

My question of the minister is: when might we see the regulations under this bill?

The Hon. G.E. GAGO: I guess the short answer is that we do not have any detailed answer to this. We are unsure at this point in time. I do not think any decision has been made at this point. However, generally speaking, the regulations are made after a bill is enacted and we would seek to do that, obviously, in a timely way. The usual practice also entails appropriate stakeholder consultation.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 2, lines 17 and 18 [clause 4, inserted section 75A(1)]—Delete:

'(whether in tort, contract, equity or otherwise)' and substitute:

for defamation or breach of confidence

The opposition's position is as articulated in my second reading speech. Whilst we acknowledge the government's motives in attempting to increase the flow of information, we feel that the broad exclusion from liability is unwarranted given the information before the chamber, and indeed the amendment is based on similar provisions in both the New South Wales and Tasmanian jurisdictions.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The protection established by the bill is aimed at encouraging greater proactive release of information by South Australian government agencies outside of the Freedom of Information Act 1991. This amendment limits the Crown's protection to civil liability for defamation and breach of confidence. Therefore, the Crown is not protected from all other civil liability arising from the publication of information which may include negligence or breach of contract.

The government considers that the limited protection that is proposed by the amendment will frustrate the government's intention to implement a broad, proactive disclosure policy, especially in relation to the publication of submissions regarding government proposals. Particularly, if the amendments were to be accepted, it is likely to be necessary that significant resources would be required by government to review the documents, the subject of potential release, similar to the process currently undertaken in the review of FOI applications.

Even more burdensome than FOI reviews, though, it is likely that those reviewing documents, the subject of the opposition's proposed amendment, would need to be legally qualified in order to determine what type, if any, of legal liability would arise from the disclosure of the information as, therefore, whether a particular type of legal liability would be exempt.

The aim of the bill is to enable the quick release of information without the need for elaborate vetting of each individual document. The amendment proposed would prevent information from being released quickly, and the amendment is not supported for these reasons.

The Hon. A.L. McLACHLAN: Can the minister advise the chamber whether the government has contacted the New South Wales and Tasmanian governments to make an assessment of their costs or their procedures in relation to the release of information?

The Hon. G.E. GAGO: I am advised that we have not approached New South Wales for that information.

The Hon. M.C. PARNELL: I will put the Greens' position on this amendment now. I asked the minister earlier about the types of actions that this bill might provide some protection for and it is clear that it is envisaged that it go beyond defamation or breach of confidence. The Liberal amendment is proposing to limit the protection to those two causes of action: defamation and breach of confidence. The starting point for the Greens is that we have often been critical of government for not routinely publishing information, and a consequence of that reluctance has been an unwieldy, in many cases, number of freedom of information requests. As we all know—the Hon. John Darley referred to it before—it is a flawed process that takes a long time, and agencies rarely fulfil their legal obligations.

For the Greens, we want to see more information published routinely, and we appreciate that that does require some level of protection. It seems to us that we are being asked to take on trust the government's intention in this matter: that their intention is to promote an increased publication of routine material and that they will be more likely to do it if they get this protection.

I note again what the Law Society said when commenting on the bill. They said: 'The actual extent or effect of this bill cannot be commented on without details of the proposed regulations,' which was why I asked. I do appreciate what the minister said, that it is the normal practice to wait until the legislation has gone through and then deal with the regulations, but I think the Law Society has a very good point. The entire effect of this bill depends on the regulations, because the operative proposed clause 4 basically refers to 'circumstances prescribed by the regulation for the purpose of this section'.

The Greens' position, with our starting point that we want more publication rather than less and more protection from government rather than less, is that we will be supporting the bill as drafted. We will not be supporting the amendment, although I do understand that that amendment is borne out of a practical analysis of the sorts of circumstances we are talking about, where it is defamation that is largely the action that people are concerned about. Whilst I appreciate the honourable member putting this amendment up, the Greens are prepared at this stage to trust the government's intent to do the right thing by this legislation. I hope we do not regret it, but we will not be supporting the amendment.

The Hon. J.A. DARLEY: I indicate that I will be supporting the bill.

Ayes 8

Noes 13

Majority 5

Title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:05): I move:

That this bill be now read a third time.

Bill read a third time and passed.