Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I spoke on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 last night in the limited time that was available to me. I quoted extensively from the explanatory memorandum, which details the purpose of the bill. I do not propose to go there again, but I think it would be worth while to point out a few things in the time that I have remaining. The number of FOI requests in Australia has risen from 30,788 in 1996-97. It rose throughout 2004-05 and 2005-06 and then dropped in 2006-07 to 38,787, declining again to 29,019 in 2007-08. I am advised that the vast majority, 85 per cent, of FOI requests are personal, with Centrelink, the Department of Immigration and Citizenship and the Department of Veterans’ Affairs receiving the highest number of requests. That comes from the Senate committee report.

I cite those figures to show that this legislation is important legislation and that what we do counts. What we have in this legislation is, overall, a proposal for greater transparency in governance, whilst seeking to strike a balance between the public’s right of access to government information and legitimate kinds of protection in the national interest, so the AAT will obviously play a greater role. The important thing is that people are entitled to challenge in relation to FOI matters and to have them properly and independently determined. When it comes to court matters on national security, ministers can make determinations and courts are not able to have all the material in front of them, even in cases where someone’s liberty is at stake. Great injustice can be done in those matters.

I remember the Ananda Marga case from when I was a solicitor in the legal aid system. There were arguments about what, if anything, was not disclosed in court proceedings, and that brought a cloud over those proceedings. In relation to FOI, if government can maintain legitimate claims of protection in the national interest without just making a declaration that cannot be examined, that is a good thing. It is important that in our system, where there is more and more power to the executive and more and more power in fewer people’s hands, the public and the press are able to test some of that decision making and what has gone on behind it. So I am a great advocate of opening up in terms of freedom of information. The government is not going to stop here. Matters have been brought forward by the former Special Minister of State, Senator John Faulkner, and I know he and Senator Ludwig want to progress the FOI situation, and that is something that should attract bipartisan support.

Having been here for 20 years, I have less confidence in getting behind certain decisions than I did 20 years ago, and I think FOI is an important tool. I do not believe that means getting access to cabinet discussions and cabinet decisions. They are in a separate category. But there are many decisions made that affect people’s lives—in immigration, for instance—that need to be fully accessed and fully scrutinised. They do not necessarily involve national security decisions, although we recently had an instance where Mamdouh Habib took government to court, and he lost. But I am now thinking in general terms, for example in the issuing of passports and whether people are allowed to get a passport to go overseas. Those decisions should, in my opinion, be able to be scrutinised to the fullest degree without an overarching national interest defence in terms of disclosure of that decision making. That is what, in the past, I think ministers have relied on. I am not saying that this legislation necessarily overcomes the deficiencies that I am talking about, but I do think that it is a step in the right direction and that is why I support this legislation.

I actually believe in a vigorous public service, but if we have better freedom of information legislation I do not believe in the yellow sticker going on a file so the yellow sticker can be pulled off the file if it is subject to an FOI request or if it is subject to scrutiny. Let us not kid ourselves; history shows that. What I expect and what I require of a forceful independent public service is for them to record their decisions in full so that, if there is an FOI request, the matter can be properly looked at. The Prime Minister gave a speech within the last little while where he talked about the need for an independent and fierce public service giving advice, and I applaud that. But I think that goes hand in hand with FOI. That was a speech to the heads of agencies and members of the SES in 2008 about reinvigorating the Westminster tradition of an independent public service with merit based selection processes and continuity of employment when governments change—which is something I believe in.

I think there is nothing worse than the American system, because there is not continuity of employment. It is like these contracts. People tend to make less courageous decisions because their contract is coming up or, if there is a change with continuity of government, it is a bit of a problem. I noticed that the Australian Public Service Commissioner, Lynelle Briggs, also gave a forceful outline of the objectives in an article in the journal of the Institute of Public Administration. That is where I see the FOI coming in, with an independent, courageous public service. Then, if there is a request, let it be looked at on its merits by the AAT—do not just invoke national interest provisions or other provisions that have been invoked in the past that have, quite frankly, been used to stultify some legitimate requests, because it only taints the situation.

There is a balance. I am not standing here tonight arguing for people to have an unfettered look at their files. I think there are appropriate circumstances, and we can have proper principles that apply before access is given. But in terms of conclusive certificates, that is really what this legislation is about—abolishing them, but, of course, it is not just an abolition. There are some principles that apply because there are some limitations on getting access.

There is not much more I want to say. I do applaud the government. I know these things can take time and people can say, ‘Why wasn’t it done yesterday?’ That is a problem with a change of government. This was part of our platform, we are implementing it; the former government in effect reneged when it came to the recommendations of the Australian Law Reform Commission and the Administrative Review Council of 1996. The former Attorney-General, Mr Ruddock, announced another review, but that sort of died with the election of 2007. As I said, the Administrative Appeals Tribunal is now going to be a main determinant in these matters, and I think that is a good thing, because people can have confidence in the system. The government will get rolled occasionally, but whacko—we will all wake up the next morning, I hope; the sun will rise, the sky will not fall in. On a number of occasions the government will have victories. It is not the end of the world. It really worries me when governments panic when they lose in the courts and tribunals and then they rush in—and this is true of both sides—with amending legislation, saying, ‘We’ve got to overcome these terrible decisions that didn’t go the way we thought they should go.’ I say to the House: let’s get the principles right and then let’s just stick to the principles. If you stick to the principles, everything else will flow. When you try to undermine the principles to achieve a particular result, that is when you get in trouble. That is when you get a loss of confidence in the system. That is why I am confident that, at the moment, in terms of this legislation before the House the balance is right and it is something that we can be confident in supporting. I commend the bill to the House.

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