speeches

DATE 10/03/09

Freedom of Information Proposed Changes – Report from the Finance & Public Administration Committee

Mr President/ Acting Deputy President, I rise to offer the findings of the Report by the Senate Standing Committee on Finance and Public Administration into the proposed changes to the Freedom of Information Act 1982.

The purpose of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 is to amend the Act in such a way that the power to issue conclusive certificates for all exemption provisions is removed. It also seeks to correct a past anomaly whereby information originating from a security agency was not exempt when in the possession of a Minister’s office.

The bill was referred to the Committee for inquiry and report on 26 November 2008. The Committee called for submissions into the inquiry and, in turn, received 9 such submissions. A public hearing was held on 12 February 2009 in Canberra and the report into the inquiry is tabled thus.

Previously, the Freedom of Information Act allowed conclusive certificates to be issued in respect of:

·         Documents affecting national security, defence or international relations

·         Documents affecting relations with States and Territories

·         Cabinet documents

·         Executive Council documents

·         Deliberative process documents

These certificates were created with the intention of protecting information considered unsuitable for the public arena for genuine reasons. However, it was often the case, or at least the perception was created, that such certificates were used for reasons of political manoeuvring or to avoid scrutiny of government decision-making.

The Rudd Government committed to the abolition of conclusive certificates in order to return the Act to its original intentions of ensuring accountability and transparency and restoring public faith in the system.   This bill delivers on that commitment. It delivers on the need for transparency whilst ensuring safeguards exist to protect the integrity of sensitive information.

With the removal of the power to issue conclusive certificates, government departments will now be required to justify why access to certain documents should be restricted. The proposed changes will now require that each and every claim for exemption would be subject to a full review by the Administrative Appeals Tribunal.

This ensures that decisions on whether or not to release information are made by an independent third party based on evidence as to the merit of a request for exemption, thereby removing any opportunity for or perception of impropriety.

Before the AAT makes a decision that a document is not exempt, where the review involves information relating to national security, defence, international relations exemptions or a confidential foreign government communication, the proposed changes in the bill require that the Inspector General of Intelligence and Security give evidence as to the potential harm that could be realised if the information were released. This enhances the process of review by incorporating expert advice into the heart of good decision-making.

It is also proposed that upon adoption of these changes, all existing conclusive certificates would be revoked if and when a new application for access to these documents is received. This ensures all requests for exemptions, be they past, present or future, be able to withstand scrutiny and be upheld on their merits alone and not on the date they were made.

The second achievement of the bill is to correct an anomaly in the original Act regarding the possession of documents as relating to exemptions. Previously, the Act allowed for certain documents to be exempt when held by seven security agencies. However, if the same document was transferred to the office of a Minister it would not necessarily remain exempt. The proposed changes allow for the document to be classified as exempt based on its origin, rather than its current location, by exempting from the Act a document originating from one of the seven security agencies, whether held by the agency or the Minister.

Some concerns were raised that this measure would in fact increase the scope of the exemptions. However, the intention of the bill is to ensure that documents that were considered worthy of exemption under the original Act are given the status intended for them, regardless of who may hold the document.

I would like to take the opportunity to thank all those who took the time to make submissions and attended the public hearing and I appreciate wholeheartedly their input.

I would also like to thank the Secretariat for all their hard work.

It is the recommendation of the Committee, resulting from the inquiry, that the Senate pass the bill.