Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

I rise today to introduce into parliament a private member’s bill, the Freedom of Information Amendment (Abolition of Conclusive Certificates) Bill 2006, and to present the explanatory memorandum. This bill has two main purposes. The first is to abolish all conclusive certificates and the second is to amend the objects of the act to provide greater clarity that the overwhelming purpose of the Freedom of Information Act is to grant the release of information rather than to heavily rely on exemptions to restrict access to government information.

One particular mechanism that has led to this lack of balance has been the use of conclusive certificates to block the release of material. For too long, Howard government ministers have hidden their incompetence behind conclusive certificates. They have been used to halt public access to information and obstruct healthy debate on their dodgy record. They have issued these conclusive certificates concerning requests for information on bracket creep, the first home owners grant, waterfront reform and David Hicks; the list goes on and on. Labor is going to put a stop to this rort.

Currently the Freedom of Information Act allows Howard government ministers to sit in judgement of their own decisions. It allows ministers to be the final arbiters of the public interest of their own materials. This grants far too much control over the release of information to the very people who might be put under pressure or embarrassed about the documents. Labor believes that the Freedom of Information Act is an important cornerstone of a modern democracy, and this private member’s bill reflects a longstanding Labor commitment to reform the Freedom of Information Act. This private member’s bill reflects that commitment and will abolish conclusive certificates and put an end to this ministerial rort. The bill will remove a minister’s role in this process altogether while still maintaining the exemption provisions, which are more than adequate to protect genuinely sensitive documents.

Exemptions will now be subject to full merits review before the Administrative Appeals Tribunal and fully tested like all other claims to restrict public access to information. Extra protection has been added for the sensitive areas of cabinet documents and documents affecting national security, defence or international relations, with the review being heard by presidential members rather than regular members of the Administrative Appeals Tribunal. The bill also introduces a provision explicitly stating that protecting a government from embarrassment is not a public interest consideration and cannot be utilised as a reason to decline the release of information to the public.

The urgency for these reforms has been heightened following the recent High Court case of Michael McKinnon v Secretary, Department of Treasury. The High Court decision makes clear that the only way to fix this problem is for us to reform the legislation—and that is what I am doing today in presenting this private member’s bill. Although two judges, including the Chief Justice, did think otherwise than the three in the majority, the majority confirmed that the existing legislation allows any minister extraordinarily broad protection from review. In contrast to other contested matters under the Freedom of Information Act, when a conclusive certificate is employed by the government the Administrative Appeals Tribunal and courts cannot assess what is in the public interest. They are limited to a much narrower review—to determine only whether the minister had any reasonable grounds to claim that release is against the public interest. This will happen no more. If this bill is passed, ministers will no longer be able to rely on this limitless discretion. With these changes the focus will rightly return to the material itself and what value or damage its release might have.

If passed by this House, these three changes would have a significant impact on the operation of the Freedom of Information Act—on the material that is available to the public through the media, through members of parliament and through the parliament itself, and it would strengthen our democracy. This bill will help to reinstate a pro-disclosure culture within government and help to bring our FOI laws back to their original purpose—to extend the right of all Australians to access information in the possession of the Commonwealth government. It is now, of course, up to the Howard government itself to support this bill. We hope that it will allow a proper debate on it and for it to be moved properly in this House in order for us to be able to improve the freedom of information laws for the benefit of the public—which is, after all, why we are all here. I commend this bill to the House.

Bill read a first time.

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