FREEDOM OF INFORMATION (MISCELLANEOUS) AMENDMENT BILL

Thursday 30 March, 2017

Mr TARZIA (Hartley) (11:00): I move:

That this bill be now read a second time.

I rise today to speak to the Freedom of Information (Miscellaneous) Amendment Bill tabled by the Hon. Mark Parnell in the other place. The Liberal Party supports this bill and strongly agrees that there is an urgent need, as there has been for some time, for a more transparent government in this state. This bill aims, through the polishing of the Freedom of Information Act, to achieve that.

Mr TARZIA (Hartley) (11:00): I move:

That this bill be now read a second time.

I rise today to speak to the Freedom of Information (Miscellaneous) Amendment Bill tabled by the Hon. Mark Parnell in the other place. The Liberal Party supports this bill and strongly agrees that there is an urgent need, as there has been for some time, for a more transparent government in this state. This bill aims, through the polishing of the Freedom of Information Act, to achieve that.

In the past, I have introduced a bill similar but not identical to the one before us today. Since that time, I note that the level of secrecy within this government has gone far beyond what anyone could imagine, reaching levels of absurdity. There has been secrecy discussed in governments throughout history.

Members interjecting:

The DEPUTY SPEAKER: I am on my feet; sit down. I am on my feet, member for Chaffey. It is pesky, I know, but that means you have to listen. It is Thursday, and it is only 11 o'clock. The member for Hartley has a bill before the house, and he is entitled to the respect that all members enjoy when they bring a private member's bill to the house. I would be horrified if anybody really meant to disrupt his speech, which no-one can hear with the amount of noise that has been going on in the chamber. Member for Hartley.

Mr TARZIA: Thank you, Deputy Speaker. As I was alluding to, secrecy has been a topic amongst governments and they have protected many things over time for fear of embarrassment. Let's go through some examples and then relate it to the present era. There was Churchill and UFOs, the CIA with mind-control experiments, Area 51, UFOs in the USSR, the Loch Ness monster, the CIA schemes to kill Castro, Julia Child's intelligence, the Grand Central Terminal secret rooms, listening in on Lenin and, of course, some might even remember Potemkin villages. Then, of course, you have Alinta this week. That letter from Alinta was very interesting.

Let's turn back now to early 2014 in the wake of the state election, when the then CEO of the Essential Services Commission of South Australia wrote a scathing letter to the chairman of ESCOSA. We remember what that said, and it was clear from those remarks and other remarks around that subject that there is an ongoing level of political interference where there should be neutrality and a hidden agenda by certain senior bureaucrats and ministers who govern the state. The public deserves more than this and deserves to know what is going on.

Another example of the Weatherill Labor government's secrecy is its handling of the infamous Gillman land deal. A multimillion dollar land deal involving the government and private developers was approved by cabinet against the advice that it should go to public tender. The ICAC has made a ruling since then involving serious maladministration, and this has been mired in controversy since the government ignored the advice in 2013 to sell the site under an open tender process.

The state government has, we know, now banned ICAC access to government documents, various documents, and that, too, has been in the media recently. A recent report by Today Tonight also highlighted the secrecy of the Labor government.

There being a disturbance in the gallery:

The DEPUTY SPEAKER: The gentleman in the gallery needs to sit down, please.

Mr TARZIA: It actually revealed to viewers that ICAC's access to cabinet documents has been banned in some instances. To reiterate, the government has banned the ICAC from accessing certain documents. I think it is pretty clear that this policy could open the door to corruption moving forward. We go on: just a few months ago, Monash University's study into the Australian Journalism Review acknowledged that our freedom of information laws were the worst in the country and found that the system was designed to block, delay and obfuscate.

In an audit of state government agencies' implementation of the FOI Act by the Ombudsman in 2014, an analysis of the practices of 12 government agencies took place assessing the implementation of the act for financial year 2012-13. In his executive summary of the report, the Ombudsman described the state government's recent policy initiatives on proactive release of information as 'timely and relevant to the digital age'.

However, he actually pointed out a disconnect between those initiatives and the act, describing the agencies' approach to the information disclosure under the act as outdated and its processes belonging to pre-electronic times, which is a long time ago. He goes on to add that:

…the agencies' implementation of the act is wanting and demonstrates a lack of understanding or commitment to the democratic principles which underpin the act…

The bill before the chamber today seeks to implement various recommendations in the Ombudsman's report and allow for a transition to a more transparent government.

I would like to expand on these recommendations and the main features of the bill in taking these into account. The first change relates to the Ombudsman's first recommendation. The amendment that this bill seeks to introduce is to include a reference to the principles of representative democracy in the objects section of the act and to acknowledge that documents held by government are a public resource to be held on behalf of the public and managed for public purposes. The second amendment relates to the Ombudsman's recommendation No. 24, which states:

Following Commonwealth and interstate FOI legislation, the Act should give express guidance on what factors should and should not be taken into account in determining whether disclosure of documents would, on balance, be contrary to the public interest.

This amendment aims to guide FOI officers in assessing what the public interest is, through description of what factors should and should not be considered when determining the public interest. Another amendment in the bill relates to recommendation No. 8 of the Ombudsman's audit, which states:

The Act should require agencies to promptly acknowledge receipt of an access application and an application for internal review. Both acknowledgements should inform the applicant of the relevant review and appeal rights and timelines, particularly in the event of the agency failing to make an active determination within the statutory time frames.

The Ombudsman goes on to add: 'In the meantime, the agencies should adopt this practice as a matter of policy.' By putting this acknowledgement process into legislation, it is hoped that applicants will be better informed about their review and appeal rights from the outset. The Ombudsman takes aim at government tardiness in recommendation No. 10, which states:

Agencies must refund the fees to an applicant if they exceed the initial determination or internal review time limitations under the Act.

I believe that this measure would go a long way to bringing the agencies to deal with the FOI applications in a timely manner. The Ombudsman's 10th recommendation further states:

Agencies have a discretion to impose a ceiling of 40 hours for processing access applications following consultation with the applicant.

Unfortunately, as we know, it is all too common for agencies to claim in their responses that it would involve too many resources, and that these would be used up by the agency to have a look for documents that applicants are attempting to have officially released.

Additionally, responses such as, 'We can't find the document,' or 'It doesn't exist,' are commonly received. What the Ombudsman said about documents that cannot be found or do not exist, under recommendation 13, is also stipulated. At present, the act does not mention what is required when agencies are unable to locate documents. The Ombudsman notes:

Agencies appear to struggle with offering adequate explanations to applicants when they cannot locate documents.

In other jurisdictions—the commonwealth, for example—legislation exists that points out that, should documents not be found or not exist, then this is interpreted as a determination to refuse access. Reasonably, the Ombudsman recommends that South Australia include similar provisions, both reviewable and appealable, in the act.

Recommendation 19 also relates to the refusal of access. In a list of 19 clauses and 50 subclauses and paragraphs of exemptions in the act, the Ombudsman found that these were unclear and open to misuse, with a tendency to overwhelm the purpose of the act. The Ombudsman suggested that this list encouraged FOI officers to take the easy road and pick the exemption route.

With relation to notices of determination, the next amendment based on the Ombudsman's 25th recommendation strongly relates to the key problem of the executive arm of government's role in the freedom of information system, with evidence in the Ombudsman's audit strongly suggesting that ministerial or political influence is brought to bear on agencies' FOI officers and that FOI officers have been pressured, in many instances, to change the determination instances. The amendment relating to this recommendation would seek to eliminate political interference—because we know that it does occur—and reduce the delays that are incurred when FOI officers await ministerial direction regarding applications. The Ombudsman actually noted:

I have come across an instance in an external review in which an agency released information the subject of an access application to a media outlet, prior to releasing the information to the applicant, an Opposition Member Of Parliament. Evidence given to the audit suggests that this is not uncommon.

Why would they go to a member of the media before a member of the opposition? That is assuming, of course, that the member of the opposition lodged the FOI. A member of the government might FOI themselves; I know that that has been done many times in the past. Unfortunately, as currently would seem to be the case, if something embarrassing is about to be lawfully provided to the opposition or to a crossbench party under the Freedom of Information Act, ministers are directed to give it to the media first. This is not clearly not the intention of the act and the FOI process.

In other jurisdictions such as Tasmania, for example, the freedom of information legislation ensures the independence of agency decision-makers and that they are free from inappropriate influence. It is the Ombudsman's view that, if an agency's determination is directed by its minister, it should be clearly stated in the determination. This amendment goes some way to address this issue by requiring that, if a determination was at the direction of another person including a minister, the determination must include the name of that person and the extent of the direction given to the FOI officer.

Moving on to one of the final legislation policy measures of the bill, I refer to the Ombudsman's 11th recommendation relating to external review:

The act should allow an external review authority to remit deemed or inadequate determinations back to the agency for consideration.

The final amendment I would like to touch on relates to the improper direction or influence over FOI officers by others. The Ombudsman's recommendation No. 26 states:

The Act should create offences of improperly directing or influencing a decision or determination made under the Act.

A uniform protocol should be created for use across all agencies which codifies the requirements for accountable and transparent communication between ministerial offices and agency FOI officers in relation to access applications under the Act.

This amendment makes improper direction or influence—which we have seen does occur—an offence with a penalty of a fine of up to $5,000. It is a modest fine, but I think that that would make an impact. As it stands, the act does not contain any prohibition about improper direction of, or influence on, an accredited FOI officer or other FOI staff.

It is important that we remember that, in considering these changes, as the Ombudsman points out in the executive summary of his report, government-held information is a public resource, just like that letter from Alinta was a public resource. The public's right to access the information is central to the functioning of a democracy. The opposition welcomes these reforms and this bill and will continue to support the measures to increase the transparency of government and keep it accountable and honest, and free of political and ministerial interference. I commend this bill to the house.