George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Part 7 of the Freedom of Information 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 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 of motion 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 the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 will remove the power to issue conclusive certificates and provide for a 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 may 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 only refers 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’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act, which this bill amends, is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions. While the availability of conclusive certificates was 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 appropriate treatment.

Conclusive certificates were used very sparingly under the Howard government. On the information available, it appears that in the 11½ years of the Howard government only 12 conclusive certificates were issued. Records for previous Labor governments are very difficult to locate; however, it appears that 55 were issued in the period between 1982 and 1986 alone, during most of which time the Hawke government was in power.

The coalition, consistent with its historical commitment to freedom of information legislation and consistent with its established practice of being much more sparing than Labor governments have been in the issuance of conclusive certificates, will support this bill to abolish, save in the exempted categories, the conclusive certificate regime. I commend the Liberal senators on the Senate Standing Committee on Finance and Public Administration, which examined this bill. In their report they 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 proportion of requests responded to within 30 days declined by 12 per cent, while the proportion still awaiting a response after 90 days has more than doubled. Further, while the percentage of requests refused has remained constant, the proportion granted in full has declined by 12 per cent from 2006-07 and the requests only partially granted have correspondingly increased. Finally, despite the decrease in applications, the overall cost of providing freedom of information has 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.

The performance of the Rudd government on FOI, as in so many other areas of public policy, has demonstrably not matched its rhetoric. The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice. The opposition supports the amendments.