Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

I rise to speak on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]. The coalition believes that freedom of information, or the statutory right of access to government documents, is justified on the grounds that it encourages transparency and political accountability and discourages corruption and other forms of wrongdoing.

At the federal level, the Freedom of Information Act 1982, introduced by the Fraser government, formed part of a broader package of administrative law reforms in the 1970s and early 1980s and was the first national legislation of its kind to be introduced in a country with a Westminster-style system of government.

Moving on to the specifics of the bill, part VII of the FOI Act provides for categories of exempt documents. In respect of some of these categories, for example documents affecting national security, defence or international relations and certain internal working documents, the current provisions of the act enable ministers to certify that disclosure of the document would be contrary to the public interest.

An application may be made to the Administrative Appeals Tribunal, the AAT, only as to whether reasonable grounds exist for the exemption claim. If the AAT finds that reasonable grounds do not exist, the minister may then decide whether or not to revoke the certificate. If the minister decides not to revoke the certificate, he or she must table a notice in both houses of parliament stating the findings of the minister on any material question of fact, the material on which those findings were made and the reasons for the decision. Subject to this, however, the issue of a certificate is a bar to access to the document and to any further external review.

The proposed amendments contained in this bill will remove the power to issue conclusive certificates and will provide for full external merits review of a decision to exempt a document. Appeal to the Federal Court will be available from the decision of the AAT on a question of law. In addition, existing conclusive certificates will be revoked in the event that a new request for access is made in respect of documents subject to a certificate. However, the existing heads of exemption will continue to apply and the decision will need to be made as to whether exemption will be claimed.

Amendments are also proposed in relation to documents the disclosure of which might damage national security, defence or international relations or which would disclose confidential foreign government information or cabinet information. In respect of that material, if the AAT intends to adjudicate on the merits of an exemption claim it will be required to obtain expert evidence from the Inspector General of Intelligence and Security. There is also a proposed amendment to provide for exemption for material received by a minister from an intelligence agency. Currently, the exemption refers only to material held by an intelligence agency and not to such material when it has been transmitted to a minister, although other heads of exemption could be claimed.

The coalition is committed to open, responsible government. The Freedom of Information Act, which was introduced by the Fraser government, is a vital measure to ensure the government remains open, responsible and accountable for its decisions. Although conclusive certificates were seen as a necessary control on the flow of information at the time the FOI Act was introduced, the coalition agrees that certificates have the potential to act as a brake on the process and that sufficient measures exist elsewhere in the act to ensure that genuinely sensitive information receives the appropriate treatment.

We cannot agree with any suggestion that previous coalition governments have used the conclusive certificate regime to resile from their commitment to open, accountable government. An examination of the records will confirm that conclusive certificates were used very sparingly under the Howard government. On the information available, we can find evidence of only 12 conclusive certificates issued in the 11½ years of the Howard government. Records for the previous Labor government are extremely difficult to locate. However, it would seem that 55 were issued for the period between 1982 and 1986 alone, during most of which time the Hawke government was in power. The coalition, therefore, cannot be characterised as one that shied away from openness in government or as one that hid behind the conclusive certificate regime.

The coalition will support this bill. However, in closing, I would like to remind the House of the additional comments of the Liberal senators on the Standing Committee on Finance and Public Administration, which examined this bill. Those senators noted that the number of FOI applications received in 2007-08 declined by almost 30 per cent from 2005-06. Even so, the response time has lengthened: the number of requests responded to within 30 days has declined by 12 per cent while the number awaiting response after 90 days has more than doubled. Further, while the number of requests refused has remained constant, the number granted in full has declined by 12 per cent since 2006-07 and the number granted in part has increased correspondingly. Finally, despite the decrease in applications, the overall costs of providing FOI have increased by some 18 per cent. When the decline is taken into account, the average cost per application has risen by over 28 per cent. Accordingly, the Rudd government’s performance on FOI has demonstrably not matched its rhetoric. The true measure of the openness and transparency of a government is found in its attitude and actions when it comes to freedom of information. Legislative amendments, where there is need for them, are fine but governments with their control over the information in their possession can find ways to work the legislation to slow or control disclosure, and that is what we are seeing now. I thank the House.

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