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Legislative
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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Legislative
Council |
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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FREEDOM OF INFORMATION BILL
The Hon. IAN GILFILLAN obtained leave and introduced a bill for an act to make official information more freely available; to provide for proper access by each person to official information relating to that person; to protect official information to the extent consistent with the public interest and the preservation of personal privacy; to establish procedures for the achievement of those purposes; and to repeal the Freedom of Information Act 1991. Read a first time.
The Hon. IAN GILFILLAN: I move:
That this bill be now read a second time.
It gives me great pleasure to introduce tonight a bill which has taken more than three years to arrive. In February 1997 the Legislative Council passed a resolution requesting the Legislative Review Committee to `inquire into and report upon the operation of the Freedom of Information Act 1991'. The inquiry from the LRC took a long time in coming, but just last month, after three and a half years, its report was issued. As the Presiding Member will no doubt mention when he comes to speak to the committee's report, there was unanimity on the committee from Labor and Liberal members and myself representing the Democrats, unanimity that the present FOI Act is not serving the purpose for which it was enacted. There was also unanimity in recommending what ought to be done about it.
The bill that stands in my name today is virtually the bill which was recommended unanimously by the Legislative Review Committee. The difference between my bill and the bill endorsed by the committee is very slight. There have been a handful of technical changes only, as suggested by Parliamentary Counsel. They do not change the substance or the spirit of the bill which was endorsed by all members of the Legislative Review Committee. Therefore, this bill, even before it is introduced, has tripartisan support. That might indeed make it unique among private members' bills ever introduced into this chamber.
However, for the benefit of members who have not had time to read the LRC's report, I will explain why we need to change the existing FOI Act. South Australia's FOI Act was described only last month in the international law journal FOI Review as a `Charter to withhold information'. I quote from the introduction to that article as follows:
Freedom of information legislation in South Australia was enacted in 1991, nine years after the commonwealth and Victoria, and one year after New South Wales had enacted similar legislation. It was claimed at the time (by Labor Attorney-General Chris Sumner) that South Australia had `drawn on the experience of the operation and administration of the legislation in these other jurisdictions' to produce legislation which `strikes a balance between the rights of access to information on the one hand and the exemption of particular documents in the public interest on the other'.
The introduction continues:
This claim appears to have largely succeeded, when viewed from the perspective of a person seeking access to documents concerning their own personal affairs. But in contrast, access to information about broader policy and administrative matters is not balanced `in the public interest'. In particular, the protection of `business affairs' (both the state government's and private interests) is not subject to any evaluation of the `public interest'. Contrary to the act itself, full statistics are not collected. From those which are collected it is apparent that many hundreds of FOI applications are refused or granted only partially each year, in reliance on exemptions which are not subject to any `public interest' test. Furthermore the District Court has rejected an interpretation of the FOI Act which relies upon the objects of the act to create a presumption in favour of disclosure.
Rather than striking a balance, the role of the act appears to be providing a set of instructions for withholding all but the most innocuous information.
I remind honourable members that that was the introduction to the article entitled `Charter to withhold information', published last month in the international journal FOI Review .
The South Australian act is unique among FOI statutes in all Australian jurisdictions as to the total exemption which it grants to any information which touches or concerns business affairs. It has been contrasted with the New South Wales and Victorian acts, which allow almost any information to be released if, on balance, it is in the public interest. The LRC came to much the same conclusion. Its report states in the executive summary:
. . . in the act is a complex scheme of provisions setting out a range of exempt agencies, exempt documents and involved procedures which often make the implementation of the basic objectives of the act cumbersome, complex and in some cases, the very antithesis of the objects of the act. Indeed, as one witness put it, the act should be renamed the `Freedom from Information Act' having regard to their experiences.
It is not only the members of the committee and academics who have found the present act unacceptable. The Ombudsman, in successive annual reports, has highlighted very similar problems and has proposed solutions similar to those put forward in this bill. There are times when official secrecy is in the public interest. Official secrecy is important for law enforcement, personal privacy and the protection of trade secrets, among other purposes. In most cases, however, it is a question of balance whether secrecy in a particular context is of greater value than the benefits of openness, accountability and informed decision-making, which supposedly are the premises on which the South Australian FOI Act was based.
The unstated assumption in the current FOI Act is that the listing of each exempt agency and each class of exempt documents is, of itself, necessarily in the public interest. The Ombudsman, several academics and all members of the Legislative Review Committee disagree with that view. We believe that, rather than specifying agencies and classes of documents which must be exempt, it is preferable to state a principle of availability, which this bill does at clause 8, and then state unambiguously a few special public purposes which are served by withholding information (that is in clause 9), and then, for any other instances where there might be some doubt, provide that that information will be released if, on balance, it is in the public interest to do so (clause 10 of my bill).
That is a sketch of the bill. It is not necessarily in toto the bill which I would have produced if I was starting from scratch to rewrite the Freedom of Information Act, but it is a bill which has tripartisan support. It has much to recommend it, and it is certainly a big improvement on the current act. FOI legislation (and I quote from Chris Sumner, the Attorney-General in 1991) is:
...based on three major premises relating to a democratic society, namely:
(a) The individual has a right to know what information is contained in government records about him or herself;
(b) A government that is open to public scrutiny is more accountable to the people who elect it;
(c) Where people are informed about government policies, they are more likely to become involved in policy making and in government itself.
There is much more that I could say, but I am hoping that members will take the opportunity to read at least the executive summary of the LRC's report on the act and on FOI reform. There they will see that the arguments I am putting up are not merely my own but have support from the whole of the Legislative Review Committee. It is a rare opportunity that we have to correct the mistakes of the past and move forward in a rare show of unanimity towards a future that will fulfil the aims of the original act-and I would like to feel optimistic that we can embrace the Independents and SA First in that. It is quite clear that the Hon. Nick Xenophon already has indicated serious involvement, with an intention to support legislation, which I predict may be very similar to that which I introduced in the Council today. I urge honourable members to support not only the second reading of my bill but also its final passage.
