Government Information (Public Access) Bill 2009
Government Information (Information Commissioner) Bill 2009
Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009

Debate resumed from an earlier hour.

The Hon. PENNY SHARPE (Parliamentary Secretary) [5.10 p.m.]: Earlier I indicated my support for the legislation. The reforms before the House are some of the most significant reforms to freedom of information legislation that have been produced. They are very important and it has been disappointing that members chose to spend the afternoon debating a whole range of other issues rather than this very particular and very important legislation. Last week, following the introduction of the bills, the Government published its final response to the Ombudsman's report. The response shows that the Government is implementing the overwhelming majority of the Ombudsman's recommendations. The response includes a table that cross-references each of the Ombudsman's recommendations against the relevant provisions of the bills. Moreover, the response includes a detailed discussion of the key issues that were raised in submissions.

Last week Ms Sylvia Hale asked the Attorney General whether he was confident that the Government had had ample opportunity to consider all the submissions that had been made. I am advised that all of the submissions have been considered carefully. In fact, a number of quite significant revisions were made to the bills in response to public submissions and I will highlight a few. For example, the Opposition raised a concern about the proposed power in the exposure draft bills for the Governor to remove the Information Commissioner for misbehaving. While the Government disagrees that this power would politicise the office or fetter its independence, in good faith the Government has removed the power from these bills. Similarly, many local councils and some other stakeholders raised concerns about the confusing overlap between the Local Government Act and the Freedom of Information Act.

Accordingly, the Government has now endorsed the Ombudsman's recommendation that these regimes be consolidated. This will streamline access to council documents, with all applications being covered by a single regime. The Government also has revised the bills to include new provisions covering information that is held by the private sector when services are provided under contract on behalf of the Government. This is another recommendation made by the Ombudsman. There is a range of other smaller changes as well that pick up useful suggestions that were made in submissions. For example, the Public Interest Advocacy Centre suggested that the legislation should explicitly require that "open access information" be available on a website when this is feasible. The bill now explicitly requires that to be done. The Australian Society of Archivists has suggested that the offence of destroying or concealing records should be expanded to include altering records. The Government has made that change also.

The bills now before the House represent the combination of an extensive process of public debate and consultation. It is important to note that the reforms also have been informed by similar debates occurring elsewhere. In developing this legislation, close consideration was given to the Solomon review that was undertaken in Queensland. That review also included an extensive public consultation exercise. The Government also looked closely at the proposed amendments that have been put forward by the Commonwealth Government in its exposure draft legislation. Again, there has also been broad public consultation on those reforms.

Critically, the passage of these bills should not be seen as the end of the process: Rather, it is the beginning of an ongoing process of review, consultation and debate. Unlike the current Freedom of Information Act, the new legislation requires a full review to be conducted after five years of operation. This review is required to be conducted in consultation with the Information Commissioner. In addition to this full review, the joint parliamentary committee is to be charged with keeping all of the public interest considerations and exclusions under continuous review. The committee's work will ensure that the provisions do not become locked in place. It will ensure that there is an ongoing forum for debate, and it will ensure that the provisions of the legislation remain relevant and up-to-date.

These reforms are all about openness and transparency. The manner in which these reforms have been developed is itself a demonstration of how an open and transparent process can lead to better public policy and better legislation. It has been a process in which all interested stakeholders have been able to participate, and in which all voices have been heard. It is also a demonstration of how proper public consultation does not impede the timely implementation of reform. The Government has moved swiftly and decisively in response to the Ombudsman's report, but has done so without compromising openness and public consultation. This is an excellent package of legislation. I commend the bills to the House.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [5.14 p.m.], in reply: I thank members who contributed to the debate. I also take the opportunity to again thank all those who participated in debates outside of this place, especially those who made submissions on the exposure drafts. A number of issues have been raised during discussions and during the contributions made by members during the debate. I will deal with those as I proceed with my remarks. First of all, the Government is alive to the need to set up the Office of the Information Commissioner in the right way so that it is properly staffed, resourced and supported to get the job done. The Government is considering transitional arrangements to ensure that the office is set up in the right way.

The Leader of the Opposition said in another place, "We will not oppose the legislation, but we make it clear that this area will be subject to further changes", if elected. One change he foreshadowed was: " we believe that the office of the Information Commissioner should be located in the office of the NSW Ombudsman." Today, the Leader of the Opposition in this House, the Hon. Michael Gallacher, again said that the Opposition would ensure that the commission's office was located in the Ombudsman's office. It is important to note those comments for a number of reasons.

The Government already has outlined the reason why the office is proposed to be set up as a separate office. The proposed Office of the Information Commissioner will go beyond the traditional role of the Ombudsman. The recommendations of the Ombudsman envisage an office that was considerably wider in scope compared to the functions that the Ombudsman currently undertakes. It is about establishing a true champion of open government who will work closely across government agencies to promote best practice for information disclosure. It is important to remember that this issue was the subject of discussion by other people. The Ombudsman wrote a report, but members should bear in mind that in recommending that the position should be established in his office, the Ombudsman obviously had an interest, and noted that he had an interest, in ensuring that the office remained with him. However, other people have a right to express their views as to where the office should be located, and the Government has a responsibility to acknowledge those views and respond to them. The Law Society said:

The appointment of a separate statutory position will lift the profile of the Act within agencies and in the community and will assist applicants in the use of the Act.

The Law Society also stated:

The separate statutory position of Information Commissioner is the better approach to oversee the administration of the [legislation]. This is particularly so in view of the powers of the Information Commissioner These powers are not appropriate for the NSW Ombudsman to have.

They are the views of the Law Society. Jim Wood, AO, QC, of the New South Wales Law Reform Commission, stated:

The Information Commissioner should be, and should be seen to be, an independent champion of the public's right to know and have access to Government Information.

Those bodies noted that it does not seem logical to subject such an office to the control of another officeholder, such as the NSW Ombudsman. The New South Wales Privacy Commissioner, Judge Taylor, said this:

To me there are sound policy reasons for separating the Information Commissioner, who may have privacy related functions, from the Ombudsman.

One important observation I make is that the Ombudsman noted in his report the desirability to have privacy brought within the purview of the Information Commissioner in the longer term. The proposal to have the Privacy Commissioner's functions incorporated co-jointly with the Ombudsman predated the Ombudsman's report. When that was floated as an idea the New South Wales Opposition opposed it. Members opposite said it should not occur because it would downgrade the position of the Privacy Commissioner. In essence, this legislation is establishing an independent office that will enable us in the longer term to incorporate the Privacy Commissioner, to meet the objections of those who did not believe that privacy should be incorporated into the Ombudsman's office, but at the same time facilitate the new office being able to discharge the wider range of functions suggested in the Ombudsman's report.

The Government makes no apology for the proposal to establish the office of the Information Commissioner as an independent office with a commitment of significant additional resources to ensure that it discharges its mandate. The Opposition, due to a lack of either work acumen or willingness to say that the Government has got it right, is simply posturing. I am glad that the other contributors to this debate, particularly the Greens and Reverend the Hon. Fred Nile, agree with the Government. In relation to the power to remove, it is important to note that when the Government released exposure drafts bills in May they included a power for the Governor to remove the commissioner for misbehaviour. It was not an open-ended power to remove the Information Commissioner. The grounds upon which the removal could have taken place as set out in the exposure draft were defined and narrow. And as they were defined and narrow it meant that in the event that an attempt was made to remove the Information Commissioner on any of those bases it would be subject to judicial review.

Objection was taken and, frankly, there was a ridiculous commentary that this was a proposal for the Government to hire and fire at will. That is not the case, and it never was the case. When there is a power to remove on the grounds of misbehaviour or incompetence, anyone knows that that power can only be utilised when the particular conduct meets the test. In any event, it is important to acknowledge that a removal power of that nature is not uncommon among statutory officers. For example, the Director of Public Prosecutions is an officer who has managed to function for a large number of years, and the power of removal in the Director of Public Prosecutions Act is of that nature. Of course, it is the case that any public official, whether they report to the Government or to the Parliament, should be able to be removed from office if they engage in serious wrongdoing.

However, having noted all those matters, it is important to put on the record that concerns were raised that the power could be seen to politicise the office. I do not believe there is any substance to those concerns but they were raised. Although the Government did not agree, it has accommodated the Opposition's concern by removing that power. The bill now provides that the commissioner can only be removed on a resolution of both Houses but enables a temporary suspension of the commissioner pending Parliament's consideration of the motion to remove the commissioner. That power is very limited. Suspension can only be for the single purpose of bringing the matter before the Parliament. The bills provide that a motion must be presented to the Houses within seven sitting days with a full statement of the grounds for the suspension.

The suspension is only temporary. If Parliament does not remove the commissioner, the suspension is lifted after 21 sitting days, and a suspension can only be on the grounds of misbehaviour, incapacity or unexplained absence from office. The suspension in no way undermines the commissioner's independence. Exactly the same power of suspension applies to the Auditor-General, and no-one could possibly suggest that the Auditor-General is anything but scrupulously independent. Of course, one hopes that a circumstance would never arise when the power would need to be exercised, but it is clearly within the realms of possibility that something could happen on a day that is not a sitting day that would justify removing a commissioner, albeit temporarily. If that happens and the Information Commissioner refuses to step down, the Government, the Parliament and everyone else would be absolutely powerless to do anything about it.

Members should remember that the Information Commissioner has significant statutory powers, including the powers of a royal commissioner. The commissioner can enter any government premises, and access and inspect any records he or she likes. The commissioner is given broad and coercive investigative powers. These powers should not be misused. The suspension power in the bill is about ensuring appropriate accountability and due process. At the end of the day the exercise of any power of suspension will be scrutinised by Parliament when it comes to consider the motion for removal. Frankly, the notion that this power somehow politicises the office is nonsense.

The legislation is not simply an upgrading of the Freedom of Information Act. It is an entirely new model. I recall being asked by Ms Sylvia Hale on another occasion about the process that led to the exposure draft bills, the contributions that were made in response to those exposure drafts and the opportunity to consider the content of those comments. Let me remind the House of the process leading up to this legislation. The Ombudsman decided that he would conduct a review of the legislation. An issues paper was issued for people to consider and then make contributions in relation to how the review should focus its attention. The Ombudsman then prepared a report on that review. The Government considered that report and outlined its response. It also put out an exposure draft bill for public consultation and invited further submissions relating to the exposure draft and the Government's response. In light of that further contribution from the public, the Government put this bill before the House.

There has been ample opportunity for people to make contributions and for those contributions to be considered, firstly, in the context of the issues paper issued by the Ombudsman, then in the context of the report handed down by the Ombudsman, then in the context of the Government's response and the exposure draft, and then finally when the legislation was introduced into the House. A large number of people made comments. As I said, the Greens, who will put forward a series of amendments and ask members to consider, did not make a submission on any of the issues that caused them concern in relation to this matter. I say that, notwithstanding the fact that there was a very long period in which people had opportunities to make their views known. While I have been critical of the Opposition's response to the issue to some extent, the Opposition made submissions to the Ombudsman and to the Government in relation to its views on this legislation. So there were more than adequate opportunities for any person with a view as to how the new model should work to put forward that view. There was no attempt to constrain the debate. However, the Government had a timetable that it was keen to see fulfilled to ensure that the process for public submissions did not derail the Government from the opportunity of introducing the legislation before the end of the session. I make the point that there were ample opportunities for contributions, for people to make their views known, and to enable us to have this legislation considered before Parliament's rising for the winter recess.

I make a point about what I regard as a particularly absurd criticism from Ms Lee Rhiannon. Members will recall that in her contribution she said she was concerned that the review contemplated in this legislation was a review by the Minister, that it was a statutory review of the legislation after five years. She said such a review should be done by the Information Commissioner, but in the same breath she criticised the Government for not having conducted its own review of the freedom of information legislation and having to wait for the New South Wales Ombudsman to conduct the review that she says the Government should have undertaken in the first place. One cannot marry those two points. Ms Lee Rhiannon is so obsessed with criticising whatever we do; it does not matter what approach we take, there will be criticism from Ms Lee Rhiannon. On one hand, she cannot say that the Government failed to undertake a review and was forced to act and undertake a review, and then criticise the Government for providing for a statutory review by the Minister within five years when she thinks the review should be done by the Information Commissioner.

That is the sort of logic that Ms Lee Rhiannon wants this House to follow. This model places the public interest as its central unifying feature, including a very clear presumption that more disclosure, greater transparency and enhanced openness is always in the public interest. These bills have been subject to exhaustive public commentary. They are the most progressive regime for public access to government information in the country. I commend the legislation to the House. I thank all members who have contributed to their content, and I look forward to discussing the amendments that have been foreshadowed during the Committee stage.

Question—That the bills be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bills read a second time.

Consideration in Committee set down as orders of the day for a later hour.