Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

It's a real shame that, on occasion, someone comes into this place and uses parliamentary privilege to gratuitously tip a bucket on someone else. It's a real shame on a number of levels. It's a shame because it denigrates everything else they say. As soon as any of us comes into this place and gratuitously tips a bucket on someone else, that detracts from everything else that is said—in this case, everything else that was said in the 15-minute speech that Senator Waters from my home state of Queensland just made. That's a real shame because, in that speech, there may have been some points for us all to reflect on, but the reality is that the opportunity was taken under parliamentary privilege to tip a bucket on, amongst others, the honourable Leader of the Government in the Senate. A whole shopping list of people had the bucket unceremoniously tipped upon them. That's a great shame, and I think my fellow senator from Queensland should reflect on that. That's all I have to say in response to her speech.

With respect to Senator Patrick, I have great regard and admiration for Senator Patrick. I think he performs an outstanding service in this place in raising issues which should be reflected upon by this place. He is an avid user of the Freedom of Information Act process.

Senator McKim interjecting—

There are no 'buts', Senator McKim. There are absolutely no 'buts'. I'll take that interjection. I, Senator Scarr, can disagree with someone on points of policy but also have respect for them. I have difficulty respecting people who come into this place and use parliamentary privilege to tip a bucket, but I have respect for Senator Patrick. He has used the FOI Act process with great accomplishment on a number of occasions, and he should be commended for that. In fact, in preparation for my contribution on this legislation, I actually read one of the more recent decisions Senator Patrick led the Information Commissioner to make with respect to the disclosure of information in relation to the national submarine project. It was certainly a good way to prepare myself for this debate and to understand the intricacies of freedom-of-information legislation. So I do commend him on his contribution to this debate. I commend him for the work he's done in relation to the bill. There are many themes and points which he's raised in his contribution which have the intent underlying this bill and that I agree with a lot of as well.

However, whilst there's that respect, as matters of policy there are things that I disagree with, and I will turn to those shortly. One point I would make, though, generally with respect to all the comments that have been made on this debate so far, is that senators should remember that the FOI Act process provides that commercial parties, third parties and private citizens have a right to raise objections with respect to the disclosure of information under the FOI Act processes. It is not just government. It is not just the executive that can raise issues with respect to the disclosure of information under the FOI Act. Third parties whose information is referred to in FOI Act applications can also object, and they have a right to object under the process under the FOI Act, as Senator Patrick would well know. That is consistent across all jurisdictions in Australia. They have a right to object, their objections need to be considered and the rule of law needs to apply. So it is simply not the case that this is only about the applicant and government. It also can concern third parties.

In the Naval Group case which I referred to earlier, Naval Group actually objected to the disclosure of some of that information that was the subject of Senator Patrick's application. Their objections had to be considered and given weight to, and ultimately a decision was made as the commissioner saw was appropriate under the act. So I think that is something we need to bear in mind in relation to this legislation.

With respect to the other senator from Queensland who made a contribution on this debate, Senator Watt, I can certainly respect his contribution to this debate far more than I can that of Senator Waters from the Greens. I say to Senator Watt that, whilst his boyhood hero, Gough Whitlam, no doubt supported FOI Act legislation, it was one of my heroes, Malcolm Fraser, who actually brought it home in 1982 in a Commonwealth sense. So it was actually the coalition government that introduced the FOI Act into the Australian parliament in 1982.

The second point I would like to make in relation to Senator Watt's contribution is on how he talked about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says:

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt, from my home state of Queensland.

Having responded to some of the contributions made by other senators in this place, I would now like to provide my own observations to the Senate with respect to this matter. Firstly, I believe and I believe passionately that freedom of information legislation at all levels of government is absolutely essential to the workings of an open, transparent liberal democracy. There is absolutely no question about that. I think it yields scrutiny of government, I think it yields informed debate and I think it gives the public knowledge and information in relation to government spending, which, of course, is the spending of taxpayers' money. So there is no argument from me with respect to the importance of Freedom of Information. I think we've seen case and case again where information has been divulged through the freedom of information process. It is a very powerful tool to keep the government and the executive—no matter what party—to account. In doing this, the Information Commissioner has a key role regarding the consideration of exemptions.

I think it's worthwhile noting that there are two types of exemptions. There's the unconditional exemption or the conditional exemption, which is subject to a public interest test. In relation to unconditional exemptions, these cover things such as matters affecting national security, the disclosure of trade secrets and federal cabinet documents. I share the reservations of some other speakers with respect to—at all levels of government, no matter what their political party—whether or not federal cabinet, or state cabinet in my home state of Queensland, exemptions had been used in a way that perhaps was not intended. With respect to the conditional exemptions these concern things such as information about deliberative processes. Coming back to Senator Patrick's most successful review of a decision that was one of the matters which was considered—

Opposition senators interjecting—

Five zero—I'm not surprised. You've had lots of practise! I'd be disappointed if you were less than five zero.

In relation to conditional exemptions, they have to be balanced against the public interest. The act does provide guidance with respect to that public interest weighting. On one hand you're looking at scrutiny and on the other hand you're looking as to whether or not things such as deliberative processes would be impacted in such a way as to mean it was against the public interest for information to be disclosed. On this point, we must remember what the factors are which should not be taken to be against the public interest in terms of disclosure. Factors which should not be taken into consideration include embarrassment, misunderstanding or confusion. They are not excuses for refusing to release information.

I commend the Information Commissioner in relation to the judgement I referred to before. I think it was a very good judgement. It certainly acted as a tutorial for me in terms of getting up to speed with this debate.

I now turn to the report of the Legal and Constitutional Affairs Committee which recommended against adoption of this bill. However, as I've been saying during this contribution, it did say that there were elements of this bill which are certainly worthy, at least in terms of their intent. I have spoken about the need for there to be adequate resources with respect to the support of FOI Act processes. I think that is an important point.

One point Senator Patrick touched on was the need to have legal qualifications. I did reflect on this as I was reading the case. It seemed to me that, to some extent, at first blush what is perhaps needed more than a lawyer is common sense and practicality. I think with a lot of these concepts where someone will say, 'This is commercial-in-confidence' or 'This is something which is going to impact the deliberative processes of an executive agency' you really need a bit of common sense and practicality to make that assessment. I can't see any reason why, whoever the decision-maker is—provided that they have access to appropriate legal advice—that decision-maker can't actually make that decision based on common sense and practicality. Examples have been given with respect to a previous holder of the relevant commissioner position, Mr Timothy Pilgrim, who did not have a legal qualification but who apparently discharged his obligations quite professionally in this regard. So I don't agree that you need to have a legal qualification. I don't believe that lawyers are the answer to everything. Provided there is access to appropriate legal advice, in this case there could be some benefit in having someone who's got a bit more practical experience making a judgement as to whether or not something should be exempt or not exempt.

With respect to the timing on publication, I think Senator Patrick makes a very good point on the position of journalists. I think it is fair to say that, if a journalist has spent a terrific amount of time and invested resources making an FOI Act application, it would be disappointing for that journalist, having got to the end of the process, to have managed to procure the relevant documents through that process, for those documents to be dumped in the public domain without the journalist first having an opportunity to review them and to do whatever the journalist thought they should do with those documents.

However, as I understand it, there are guidelines in place which are meant to take into account factors such as that. I'm happy to hear whether or not those guidelines are working as they're intended to work, but certainly the information I've been provided with is that there are guidelines which are there in order to take into account matters relating to the timing of disclosure. But, in that regard, we should always remember that, once it has been decided that the document should be made public, it should then be made public, and, to some extent, it is then outside the realm of the original applicant. It's a matter for the polity at large; it's a matter for the community at large to have an interest in those documents being made public. I think the two elements need to be weighed, but, given how nuanced the discussion could be in a particular case, it is a matter which could be more appropriately dealt with in the guidelines.

With respect to charges, I do note that section 29(5) of the Freedom of Information Act provides that an applicant can contest a charge for access and that that will be considered on the basis of whether access is in the general public interest. Again, I'd be interested to know how that works in practice, but there is a process there for charges to be waived. I think there is a bit of tension—on one hand, seeking additional resources for Freedom of Information Act processes and, on the other hand, raising questions over whether or not there should be charges involved in terms of accessing those documents. Certainly, in some cases, Freedom of Information Act applications can be extremely wide-reaching and cover huge amounts of documents, and I think the two competing interests need to be balanced in a reasonable way.

The last point I'd like to make is with respect to referrals to the Administrative Appeals Tribunal. It does concern me that that proposal may simply be a matter of kicking the can down the jurisdictional road. So all you're doing is feeding into another traffic block, if you like, and congestion down the jurisdictional path. You're simply pushing the issue down to the AAT when, if there is an issue, it needs to be resolved earlier in the phase.