George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to 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.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens welcome the government’s decision to abolish conclusive certificates under the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 but, strictly speaking, only as part of the broader reform package for Australia’s freedom of information regime. Many of the witnesses at the hearings held when the Senate Standing Committee on Finance and Public Administration considered this bill pointed out very strongly that these measures are really only sensible in the context of much broader reforms, and we look forward to those coming before the Senate.

It is very good to see this government showing a degree of leadership on what is clearly a very important issue—that is, commitment to the principles of openness and transparency. The previous government, perhaps most generously, could be said to have had a very mixed record in this regard. The Greens are very committed to open and transparent government at all levels. We have been promoting freedom of information reform in here for some time. We believe that creating a culture of openness at all levels of government is very important, indeed essential, if the Australian people are to have any faith at all in the laws that are made in our name. And it is a prerequisite to an effective democracy. At this point, I particularly acknowledge my Greens colleague Senator Bob Brown, who has been a very long term advocate of freedom of information reform.

Conclusive certificates, the measures we are dealing with specifically today, allow a minister to effectively circumvent freedom of information laws by barring access to a particular document. Without going into details of the process again, which I believe has been canvassed sufficiently so far, the process did give ministers a right to veto an external review. This, I think, was totally at odds with the purpose of having freedom of information legislation in the first place. So we share the government’s belief that it should not be preserved. We differ, however, when it comes to the status of documents that originate from a Defence or intelligence agency. This goes to the intent of the amendments which have been circulated in the chamber and for which I will be seeking the support of all parties.

Under the government’s new subsection 7(2B) a minister is exempt from the act, period, when dealing with documents that have originated from or been received by security and intelligence agencies. Obviously the Greens understand that certain documents originating in these agencies are sensitive in nature and have real consequences for our national security, defence, international relations and so on. We would not want to be seen to be diminishing those considerations. We recognise that these kinds of documents cannot necessarily be made public. However, section 33 of the existing Freedom of Information Act, which remains unamended by the provisions before us today, provides very clear exemptions to deal with these things so that national security and other concerns are not compromised by FOI requests. Under that section, documents that deal with these sorts of interests, and would be or could reasonably be expected to cause damage to these interests, are exempt. These protections already exist in the drafting of the original act; so this protects documents when required in the national interest.

Like the Australian Press Council, who made a submission to the inquiry into this bill, the Greens do not believe that, simply because a document originated in a security agency, it automatically has implications for national security and therefore should be held behind a firewall of automatic exemption. In fact, many documents pass through any number of agencies, including some security and intelligence agencies, before they reach a minister. It is ludicrous simply to tick a box and say that if it has come through a certain department then it is in the national interest and should be excluded. There are instances when the public absolutely has a right to know and must know about the nature of documents that originated in security agencies. Most recently, under the former government, we saw the most appalling treatment of Dr Haneef. His visa revocation case dealt with inconsistencies between reports and threat assessments by different agencies. That information needed to be made public in the interests of accountable and transparent government. Of course, it was, and the rest is on the record.

It should be noted that this attempt to exclude security agencies from freedom of information is particularly worrying in the Australian context, and particularly now. This is a point that was taken up by Associate Professor Moira Paterson of Monash University Law School in her submission. We do not have a bill of rights in Australia in which the rights and freedoms of citizens are protected. We are vulnerable to our civil liberties being jettisoned in the name of national security, not necessarily in big, dramatic cases such as the case of Dr Haneef but in the slow creep and advance of these laws as they encroach into our rights and freedoms. The appalling treatment of Dr Haneef is probably the most recent case in point. If these agencies are not subject to public scrutiny, how can we ensure that they do not exceed their brief? How can we ensure that they do not throw our human rights out of the window in the name of national security?

It was put to me in a conversation with a very senior legal counsel who has worked on many of the terror cases where these sorts of laws might come into effect that the security intelligence agencies need to be tightly circumscribed under law and not be exempt from the sorts of provisions that we see under the Freedom of Information Act. This is partly to their own protection, so that the laws and the boundaries within which they operate are made clear. We must have a freedom of information regime that gives us the power to review the work of these agencies where possible, within the provisions as they exist to protect national security. We must have an FOI regime that gives us the flexibility to weigh the public interest in national security against the public interest in accountability and transparency because sometimes the latter will outweigh the former.

It is for this reason that we are moving the amendments to strengthen the government’s bill today. I believe that, if the government wants to come back with properly considered proposals for further exemptions for security agencies, that should certainly be considered and will be considered in good faith by the Australian Greens when the substantive reforms to the FOI Act come before us—whenever the government chooses to bring that forward. But we do not believe that these provisions belong in the FOI amendment bill that we see before us today. Under our amendments, section 7(2B) would be deleted, section 7(2A) would be amended and section 7(1) would be deleted. This has been proposed by the Australian Greens to ensure that we do not allow the pendulum to swing too far in favour of security at the expense of open, transparent and accountable government.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will make a brief contribution to indicate my support for the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]. I note the concern about conclusive certificates and I welcome this bill. I would like to pay tribute to the work that Senator Ludwig’s predecessor, Senator Faulkner, did on this and also to the work that Senator Ludwig is continuing in relation to freedom of information reform. Clearly there were concerns about the abuse of conclusive certificates previously, and clearly this is a welcome development.

I note from my brief discussion with Senator Ludwig previously that there will be an opportunity to have a review after two years of the workings of the new, substantive FOI bill, including these provisions dealing with conclusive certificates. So I think that we do have some further safeguards built in to ensure that there can be adequate scrutiny of how this particular bill will operate and whether it needs to be expanded even further.

On the question of Senator Ludlam’s proposed amendment with respect to national security issues, I am inclined to support that for the simple reason that I believe that there are still adequate safeguards by having an appeal process and an ability to have it reviewed by a tribunal. The only concern I have is whether, if the tribunal needs to test issues that could well be sensitive national security issues, there would be a closed hearing. If the nub of the issue is that it is a matter of national security, rather than an administrative matter which cannot reasonably be said to be a matter of national security, there ought to be some flexibility in the court process.

I do not know whether Senator Ludlam’s amendment will get up. If it does, there may be some further consideration of how it would be implemented. But I think it is important that, in the context of this piece of legislation, there is change coming, and that is a good thing when it comes to improving FOI. I think that having comprehensive, thorough and open freedom of information laws is one of the key foundations of a democracy, and I see this legislation as being a real step in the right direction.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009] delivers on the government’s election commitment to remove the powers to issue conclusive certificates under the Freedom of Information Act 1982. Currently, if a conclusive certificate is issued, the Administrative Appeals Tribunal cannot undertake a full reconsideration of the decision to claim exemption. The passage of this bill will ensure that all exempt decisions under the FOI Act and Archives Act will be subject to full external merits review. The removal of the certificates power will therefore enhance public confidence in decisions about access to government information. The removal of the power to issue conclusive certificates does not mean that information that should be protected against disclosure will be released. Where an exemption claim properly applies to a document, the document will not need to be disclosed.

A number of measures in the bill will introduce procedural requirements to be observed by the AAT in the conduct of review proceedings for particular sensitive documents, namely documents whose release could damage national security, defence or international relations, or would disclose confidential foreign government information or cabinet information. These measures do not affect substantive rights of access to documents or records; rather, they are safeguards for the protection of particularly sensitive information in the conduct of AAT proceedings.

By the existing provisions in the FOI Act, intelligence agencies and the Inspector-General of Intelligence and Security are wholly excluded from the operation of the act, and documents in the hands of agencies are excluded if they originated with or were received from an intelligence agency or the Inspector-General of Intelligence and Security. The bill will in the same way exempt these classes of documents from the operation of the FOI Act when held by ministers. It is anomalous to treat intelligence agency documents differently when they are held by a minister.

In its report on the bill, the Senate Standing Committee on Finance and Public Administration—I thank the committee for the work it undertook to review the bill—made a single recommendation: that the Senate pass this bill. So I thank the chair and the senators who participated in that review of the bill. Since this bill was introduced into the parliament, the government has released draft legislation for public comment to fulfil the rest of its election commitment on FOI reform. The draft legislation, together with this bill, constitutes the most significant overhaul of the FOI Act since its commencement in 1982. While the repeal of the powers to issue conclusive certificates is just one initiative among many in the government’s broader FOI reform package, it is an important step in making government more open, accountable and transparent. In closing the debate on this bill, I also thank those who participated in the second reading debate. Although there were not many, I do understand that the bill has broad support to pass.

Question agreed to.

Bill read a second time.