House of Representatives Speech- Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]

I am very pleased to rise in support of theFreedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]. This legislation is a precursor to much larger reforms to the freedom of information system in this country, reforms which are a commitment of this government and the details of which were announced by the Special Minister of State, then Senator Faulkner, in March this year. Of the reforms contained in this bill, the most important is the removal of the conclusive certificates procedure. As I have indicated, these were all commitments made at the last election. Many of them are based on a now quite dated joint report of the Australian Law Reform Commission and the Administrative Review Council in 1996, entitled Open government: a slow train coming, which was regrettably ignored by the former government. What this bill represents is the first step in the most substantial set of reforms to the freedom of information system since the legislation was introduced in 1982. I am looking forward to the legislation containing the much larger set, the further reforms, that have been foreshadowed by the Special Minister of State.

I am very pleased to rise in support of theFreedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 [2009]. This legislation is a precursor to much larger reforms to the freedom of information system in this country, reforms which are a commitment of this government and the details of which were announced by the Special Minister of State, then Senator Faulkner, in March this year. Of the reforms contained in this bill, the most important is the removal of the conclusive certificates procedure. As I have indicated, these were all commitments made at the last election. Many of them are based on a now quite dated joint report of the Australian Law Reform Commission and the Administrative Review Council in 1996, entitled Open government: a slow train coming, which was regrettably ignored by the former government. What this bill represents is the first step in the most substantial set of reforms to the freedom of information system since the legislation was introduced in 1982. I am looking forward to the legislation containing the much larger set, the further reforms, that have been foreshadowed by the Special Minister of State.

I would like briefly to detail those further reforms that are coming. They are the subject of an exposure draft of the legislation. Appropriately, the whole process of considering the changes to the freedom of information legislation is being conducted with complete openness, and the reforms include establishing two new statutory provisions, those of the Information Commissioner and the FOI Commissioner, and bringing them together with the Privacy Commissioner in a new office of the Information Commissioner. And in terms of freedom of information, the intention of that new office is to promote a culture of pro-disclosure right across the government.

The new Information Commissioner will have the power to conduct merits based reviews of freedom of information decisions by agencies and to use alternative dispute resolution tools. There will be a new information publication scheme requiring agencies to proactively disclose more information to the public, and the Information Commissioner will be given a key role in assisting agencies and monitoring their compliance with the scheme. There is to be a reduction to 20 years of the 30-year rule that is found in the Archives Act for access to all documents and a reduction of the present access period to cabinet notebooks from 50 years to 30 years. There will be important changes to the fee regime, including the abolition of all freedom of information application fees, the abolition of all charges for a person seeking access to their own information, a charge-free first hour in the decision-making period for all FOI requests and, for not-for-profit organisations and journalists, a charge-free first five hours in the decision-making period. There is a proposal to introduce a single, clear pro-disclosure public interest test, ensuring that factors which are presently in the legislation and have been part of considering the public interest under the legislation since it was introduced in 1982, like embarrassment to the government or causing confusion and unnecessary debate, can longer be relied on to withhold access to documents. A very important proposed change is an extension of the freedom of information regime to cover documents that are held by service providers contracted to government—it will not simply be primary government agencies. A strong new objects clause which emphasises that information held by government is a national resource will be introduced in the Freedom of Information Act. That will reinforce the aim of the Freedom of Information Act, which is to give the whole of the Australian community access to information that is held by the government.

The bill that is presently before the House, which is the first stage of very extensive reforms to freedom of information, does away with a feature that has been in the freedom of information regime since 1982. It is a much criticised procedure which enables—although it has not been used since we came to government—a minister and, in the case of certain documents, the Secretary of the Department of Prime Minister and Cabinet to issue a certificate which puts beyond reach documents that are sought for release under the Freedom of Information Act. That is why the word ‘conclusive’ is used to describe this form of certificate. There is no merits review available to the withholding that is effected by the conclusive certificate, as is the case for any claim for exemption under the act. If documents are claimed to be exempt, there is the right of a full merits review in the Commonwealth Administrative Appeals Tribunal in which the tribunal member, who may sometimes be a Federal Court judge or on other occasions a non-judicial member of the AAT, stands in the shoes of the administrative decision maker who has refused access to documents and decides afresh, based on evidence that is called before the tribunal, whether or not the exemption that has been claimed by the government agency as a basis for withholding the documents is in fact made out. The conclusive certificate procedure puts documents entirely beyond the reach of that merits review and limits the scope for appeal against, or review of, that conclusive certificate to a review that examines only whether or not there were reasonable grounds for the making of the certificate in the first place.

The 1996 report Open government: a slow train coming by the Australian Law Reform Commission and the Administrative Review Council recommended almost complete abolition of the conclusive certificate power as long ago as 1996, but rather than act on that recommendation or on any of the other recommendations for reform the former government did nothing and indeed continued to use the conclusive certificate procedure to prevent documents from being released when they were asked for under the Freedom of Information Act. The case that probably brought this most to public notice was a decision of the High Court, McKinnon v Secretary, Department of the Treasury. Michael McKinnon is a very senior News Ltd journalist who made a request for documents. I am going to mention what the documents were, because that will set the background for an examination of how the conclusive certificate issued by the then Treasurer, the member for Higgins, came to be used on that occasion. Mr McKinnon made a request for material relating to bracket creep in the federal income tax system and made a further request for material relating to the first home owners scheme. You might think that, being subjects of importance, documents held by the federal government surrounding both those issues would be quintessentially documents that should be released in order to enable informed and appropriate debate. The grounds on which the former Treasurer issued his conclusive certificate are set out in the judgments of the High Court in McKinnon v Secretary, Department of the Treasury, and I will come to those in a moment. But the decision in the High Court, which followed appeals in the Administrative Appeals Tribunal and, subsequently, the full Federal Court of Australia, was concerned with looking at what process was to be followed by the Administrative Appeals Tribunal when it was asked to review the issue of a conclusive certificate by a government minister.

The High Court makes clear in the majority judgments in McKinnon v Secretary, Department of the Treasury—and there was a strong dissent written by Chief Justice Gleeson and Justice Kirby in a joint judgment about this—that, provided there was at least one ground upon which it was possible for the certificate to be issued, then that was sufficient and would put the issue of a certificate beyond review. Chief Justice Gleeson and Justice Kirby said that one ground would not necessarily be sufficient and suggested in their dissenting judgment that a more considered process was necessary. But, as it stands, the law of Australia, as determined by the High Court of Australia, is that conclusive certificates are almost unable to be reviewed because it is not very likely that a conclusive certificate issued by a minister in this country is not going to be able to be justified on at least one ground—thus, in effect, putting it beyond review.

The Freedom of Information Act 1982 says on its face that it is a scheme which is intended to create a right to information for the citizens of this country. The right for a minister to simply step in and put a document beyond reach that might otherwise be available for release is really a feature that should have no part to play in a scheme intended to create a general right to information.

When one looks at the kinds of reasons given by the former Treasurer for determining that a document should not be available, I suggest that they demonstrate the former government had very little trust in the ability of the Australian people to sort the wheat from the chaff and to sort out what is going on in any particular document. The thrust of the former Treasurer’s reasons was that the release of the documents might cause confusion and that the documents would probably not be readily understood. I will go to some of those reasons provided because they demonstrate an attitude to freedom of information that is the opposite of the attitude that one should expect to see. For example, one of the grounds is:

Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of those processes and the public record.

There are a few others in a similar vein, but that argument has been described by an English judge as ‘the tired, old frankness and candour argument’. It is an argument that could be raised every time a document is sought for release and would, if it were to be applied generally, mean that no documents would ever be released because, it was being suggested, it would not be in the public interest because it might in future inhibit public servants from writing anything down. Stripped away, that is what the former Treasurer was saying there.

Other reasons advanced by the former Treasurer show very little trust in the ability of the Australian people to sort out what is going on. Another of the grounds is:

The release of the material would tend to be misleading or confusing in view of its provisional nature, as it may be taken wrongly to represent a final position (which it was not intended to do) and ultimately may not have been used or have been overtaken by subsequent events or further drafts.

Another one in a similar vein states:

The release of documents that are intended for a specific audience familiar with the technical terms and jargon used, has the potential for public misunderstanding in that the contents of the documents could be misinterpreted.

All of that amounts to simply saying: ‘We don’t trust the Australian people to be able to work out what a government document was intended for. We think that there is going to be confusion in debate if we release them.’

All of the reasons advanced in the judgment of the High Court in the McKinnon case as to why the former Treasurer issued the conclusive certificate are reasons that could be used against any release of information at any time. They demonstrate that on the part of the former government there was no real commitment to openness let alone a commitment to debate. We on this side of the House share the attitude expressed by Abraham Lincoln:

Let the people know the facts, and the country will be safe.

We have a commitment to open government. We have a commitment to transparency in government. It is being demonstrated by this first stage of very substantial reforms to the freedom of information system.

Another step taken by the Special Minister of State was to write to all agency heads indicating the appropriate approach to be taken in relation to freedom of information matters. It was a very direct encouragement to all agency heads to take what I think is right to describe as a pro-disclosure approach when considering the freedom of information requests that they receive. In other words, even in advance of the introduction of the reforms to the freedom of information system that have been foreshadowed, the Special Minister of State was making it very clear that this government is expecting the culture of freedom of information to begin to change. I will quote from the letter that the then Special Minister of State, Senator Faulkner, sent in April of this year to all agency heads. Having described the reforms that are coming and that are contained in the exposure draft, Senator Faulkner said:

These reforms, although important, will not deliver the openness and transparency so essential to accountability and to a robust democracy, unless FOI decision-makers embrace the disposition towards disclosure which informs the FOI Act reforms.

In anticipation of these reforms, the Government is asking secretaries and agency heads to take a lead role in facilitating the Government’s policy objective of enhancing a culture of disclosure across agencies. This includes making it clear to FOI decision makers in your department or agency that the starting point for considering FOI requests should be a presumption in favour of giving access to documents.

Senator Faulkner went on to say that he is not suggesting that every single document that is requested has to be released but indicating in the clearest possible terms that what the government is looking for is a pro-disclosure approach.

I should mention that the bill, which of course comes to us having passed the Senate, was the subject of a lengthy report by the Senate Standing Committee on Finance and Public Administration. The committee recommended that the legislation be passed. Indeed, this bill met with a great deal of approving comment. Submissions made to the committee, while raising some issues about other aspects of the legislation, congratulated the government for moving to abolish conclusive certificates—indeed, moving to carry out the commitment that the government took to the last election.

I want to mention the remaining matter of the somewhat extraordinary claims we have heard from members of the opposition both in the other place and here. Perhaps it is best to mention Senator Brandis’s claim that:

The coalition’s commitment to open, responsible government is well known.

I would say that one only has to look at the conduct of the former government in the continuing use of conclusive certificates and in not acting on very clear recommendations and calls for reform of freedom of information over its 11½ years in office to see that, far from having a commitment to open and responsible government, the coalition has demonstrated the reverse. McKinnon is a case directly in point, where the government thought it appropriate to take all the way to the High Court the defence of its refusal to release documents concerned with bracket creep and documents concerned with the first home owners scheme.