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

The CHAIR (The Hon. Amanda Fazio): The Committee will deal first with the Government Information (Public Access) Bill 2009, in relation to which, with the leave of the Committee, I propose to put questions by parts and schedules. There being no objection, I will proceed accordingly.

Ms LEE RHIANNON [11.11 p.m.]: I move Greens amendment No. 1:

No. 1 Page 2, clause 3. Insert after line 18:

(2) The Parliament intends, by this object, to promote the State's representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better informed decision-making,

(b) increasing scrutiny, discussion, comment and review of the Government's activities.

This amendment seeks to strengthen the existing objects clause. As many forces will attempt to restrict access to government information, it is important that this clause is strong and clear. The Act will be interpreted with the objects clause clearly in view. The Greens acknowledge that existing clause 3 is good, but the Government failed to adopt the Ombudsman's recommendation that the objects of the new Act should be "to enable people to participate in the policy and decision-making process of government, to open government activities to scrutiny and to increase the accountability of government." Are the concepts of public participation in policy decision-making and scrutiny of government activities still too big and threatening for the Government to embrace? These concepts are at the heart of a healthy and vibrant democracy and should be reflected in this important bill. Therefore, the Greens propose that the Government adopt clause 3 (2) of the Commonwealth Government's Freedom of Information (Reform) Bill exposure draft, which states:

The Parliament intends, by these objects, to promote Australia's 14 representative democracies by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government's activities.

I commend the amendment to the Committee.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [11.12 p.m.]: The Government opposes the amendment. This is a remarkable position for the Greens to adopt after a 12-month public consultation process on this legislation. Last year the Ombudsman issued a discussion paper explicitly asking for views on what should be the objects of the new legislation and received 70 submissions—not one from the Greens. Earlier this year the Government released an exposure draft bill proposing an objects clause identical to the one in the current bill; 50 submissions were received, but again not one from the Greens. Having played no role in the public consultation and debate the Greens now submit that the objects clause should be amended to reflect their opinion as to the best choice of words. Most ironic of all is that the wording the Greens propose refers to public participation in decision-making when they did not participate in the process. The Government will not support the amendment. The objects in the bill are consistent with the recommendations of the Ombudsman. Obviously, different people might have different views about the precise choice of words, but the current objects clause is clear and strong.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.13 p.m.]: The Opposition indicated during the second reading debate, in addition to an earlier contribution in the Legislative Assembly, that the bill required certain amendments. The Greens propose 26 amendments to these government information bills. The New South Wales Coalition has been given insufficient time—less than a day—to properly work through the objectives and consequences of the amendments. For this reason the Opposition will not support them. Lee Rhiannon called into question the commitment of the Leader of the Opposition in the other place and, indeed, the Coalition's commitment to reform of freedom of information laws. However, not only is the Coalition's commitment to best practice in freedom of information processes well documented—unlike the Greens—but it made a submission to the NSW Ombudsman's review of freedom of information laws and also the Government's exposure draft bills.

The NSW Coalition's submission on the exposure bills has been publicly available on the Department of Premier and Cabinet's website for some time, along with the other 57 or so submissions. In addition to our submission, the New South Wales Coalition met with government representatives to articulate its concerns about the bill, which Mr O'Farrell expressed in his agreement in principle speech. The Greens did not provide a submission on the draft exposure bills. Surely, if anyone's commitment to reform of freedom of information could be called into question, it must be that of the Greens. No contact has been made between the office of the Greens and the office of the Ombudsman about these amendments. Of course, that raises serious questions about the practicality of what is proposed. To assist with the progression of these amendments through the course of debate this evening, I will not comment further on each amendment.

However, when I looked through the amendments after receiving them during the course of the second reading debate I was concerned particularly about the amendment seeking documentation from within the New South Wales police Counter Terrorism and Special Tactics Command and other areas within law enforcement. It appears that by these amendments the Greens are prepared to apply a public interest consideration to seek this information. I do not believe that information collected under the terms of this amendment would be in the public interest. On that basis alone, the Opposition strongly opposes the amendments.

Ms LEE RHIANNON [11.16 p.m.]: The Government and the Opposition have made some interesting comments despite the late hour. I was disappointed once again with the Attorney General, particularly as we largely agree on this legislation. This bill is an Ombudsman's recommendation, which the Attorney General tried to skate over. He was a little loose in his comments about how things have unfolded because he implies that what the Government is doing is consistent with the views of the Ombudsman. He failed to say that the Government has omitted one key recommendation. The Greens did not provide a submission, but there are many things the Greens do not achieve in the hurly-burly of political life in New South Wales. I would like to do many more things that do not get done. I regret that the Greens did not make a submission, but that does not rule out consideration of our opinion or our participation in dialogue in this Committee stage when different opinions are considered on merit. The Opposition has returned to the old excuse, "We did not have time to consider." Of course, in this last crazy week of this Parliament's organisation many of us often do not have time to consider things as thoroughly as we would like.

The Hon. Trevor Khan: The time for making submissions was a lot earlier than this week.

Ms LEE RHIANNON: Mr Khan—

The Hon. Michael Gallacher: These amendments are so comprehensive; you did not draft them in five minutes.

The CHAIR (The Hon. Amanda Fazio): Order! Members should not interject and the member with the call should not respond to interjections.

Ms LEE RHIANNON: Thank you for that advice, Madam Chair. Obviously, the amendments took time to work through and they were not ready until the last minute due to our difficulties and work pressures. However, we all come into this place and judge things as best we can rather than use poor excuses. The main problem is that the Attorney General tried to skate over the fact that this is a recommendation from the Ombudsman, which should be judged on that basis.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [11.19 p.m.]: We are having a startling debate! Yesterday I indicated to the Greens that we were going to debate this legislation today. I requested that if they had any amendments they provide them to us. They were provided to me during the course of the debate on the bills. Notwithstanding the fact that this legislation was introduced last week, exposure drafts and other material were available for people to consult and determine their position.

There will always be different perspectives on emphasis. I believe the bills encapsulate the essence of what has been the product of an exhaustive discussion process emanating from an issues paper that led to an Ombudsman's report, then to exposure bills. There was ample opportunity for people to comment. We now have legislation that is a synthesis of all that discussion. Everyone can have a view on the matter. The Greens did not feel inclined at an earlier point in time to raise these sorts of issues so that not only members of Parliament voting upon this could determine their position, but also stakeholders with an interest in framing the new legislation would have the opportunity to observe that commentary and have input.

One cannot keep talking about public participation in the process then, when given an opportunity for public participation in a process, put something up at the last minute and say, "No, you have to adopt our proposal because it reflects what we believe was best intended by one of the people who was a participant in the process", albeit someone in the position of the Ombudsman.

Question—That Greens amendment No. 1 be agreed to—put.

The Committee divided.
Question resolved in the negative.

Greens amendment No. 1 negatived.

The Ms LEE RHIANNON [11.29 p.m.], by leave: I move Greens amendments Nos 2, 3 and 20, in globo:

No. 2 Page 2, clause 4 (1). Insert after line 31:

(a) the Parliament,

No. 3 Page 3, clause 4 (1), line 6. Insert "the Parliament," after "definitions of" in the note.

No. 20 Page 72, schedule 4, clause 1. Insert after line 14:

the Parliament includes the Houses of Parliament and any committee or department of the Parliament, but does not include a member of Parliament in the capacity of a member of Parliament.

These amendments seek to bring the New South Wales Parliament into the ambit of this legislation, as recommended by the NSW Ombudsman. Parliament is defined as including the Houses of Parliament and any committee or department of the Parliament, but does not include a member of Parliament in the capacity of a member of Parliament. I note that the amendment does not include the documents held by members of Parliament. The Ombudsman has advised in his final report that the possibility of including members of Parliament within the scope of the Act should be considered actively in the first full review of the new Act to allow proper consideration of what is a complex issue. The Greens agree that this is a suitable approach, considering the sensitive issue of correspondence between members of Parliament and their constituents.

One would have to say that much of this bill is symbolic. It is a flagship for a new regime of openness. But by leaving out Parliament, the Government is failing to show leadership and really is exhibiting double standards. Premier Nathan Rees has agreed to open up government, but stops at the door of Parliament House in Macquarie Street. By leaving out Parliament, the public can only assume that the Government does not want the light shone on the administration of Parliament; that it wishes to hide behind dubious arguments about independence and that the Government already releases plenty of information about parliamentary operations, including the salaries and entitlements of members of Parliament.

The Government has made no compelling argument for why Parliament should be excluded, relying instead on advice from the President of the Legislative Council and the Speaker of the Legislative Assembly. I certainly acknowledge that our President and Speaker have done a very thorough job, but I part company with them on the conclusions they have drawn in relation to this legislation. I acknowledge that this is difficult for them because in coming to their conclusion they would have had to take into account that, by being included, they will be subject to any freedom of information laws.

In a letter dated 9 April this year Mr Peter Primrose and Mr Richard Torbay outlined their concerns. In summary, they say that subjecting Parliament to freedom of information laws compromises parliamentary independence. This bill will not compromise Parliament's independence. It will allow scrutiny of its administrative functions. It will improve the standing of this House and certainly will lift the confidence that people have in the democratic process, which right now is at a real low. They argue that the inclusion of Parliament in this legislation will infringe the privilege of Parliament—but that is protected in the bill and in the amendments that have been circulated—and that acting in the public interest militates against disclosure of information, the public disclosure of which would infringe the privilege of Parliament.

They also argue that there is a concern that freedom of information would compromise communications between members and constituents, but the Greens amendments do not capture members of Parliament. They argue in relation to members' entitlements that they already release information on members' use of their entitlements; for example, aggregated information about members' travel in the annual reports of the Legislative Council and Legislative Assembly. I have to acknowledge it is laudable to include the type of information in the annual report, but the information is really limited and hard to find.

The Hon. John Hatzistergos: It is hard for you to find it.

Ms LEE RHIANNON: It certainly does not allow a member of the public to track the salaries and allowances of individual members of Parliament, or how much is actually spent.

The Hon. John Hatzistergos: It sounds to me like voyeurism.

Ms LEE RHIANNON: I have to acknowledge that interjection.

The Hon. John Hatzistergos: Well, that is what it is.

Ms LEE RHIANNON: The Attorney General's interjection reflects very poorly on him, his party and his Government. We are talking about public money.

The Hon. John Hatzistergos: Will you tell us how much you use on room service—the most subsidised service of the Parliament?

Ms LEE RHIANNON: The Attorney General is sounding like Mr Egan, and Mr Egan got it wrong. He used to sound like a broken record when he raised that issue.

The Hon. John Hatzistergos: Because the Greens use it more than anyone else.

Ms LEE RHIANNON: The Attorney General has gone back 10 years to an issue that was discredited.

The Hon. John Hatzistergos: Do you mean you do not get room service?

Ms LEE RHIANNON: I will come to that point. People can look at my website and see how I spend my electoral allowance.

The Hon. John Hatzistergos: No, they cannot. Anyway, why would anyone want to do that?

Ms LEE RHIANNON: They can.

The Hon. John Hatzistergos: I cannot find it.

Ms LEE RHIANNON: There is information on my electoral allowance.

The Hon. John Hatzistergos: You had it for a little while. It was very dated. None of your colleagues did.

Ms LEE RHIANNON: No, it is all there. If the Attorney General has trouble using the website, I am always happy to sit down and explain how to use it.

The Hon. John Hatzistergos: The use of room service is not on it.

Ms LEE RHIANNON: Because I do not use room service. The President and the Speaker conclude by saying that a significant amount of additional information about the operation of parliamentary departments currently is published in the annual report and is subject to scrutiny during budget estimates. None of those arguments stand up, yet the Government—and now apparently the Opposition—is relying on this advice to explain why it is not adopting the Ombudsman's recommendation that Parliament be subject to freedom of information legislation. It is a clear recommendation, but it is the only recommendation that has been left out of the bill.

The Government argues that no other Australian jurisdiction subjects Houses of Parliament to freedom of information laws. But we know that many overseas jurisdictions do. So, does the Premier, Nathan Rees, want to be a leader on open government or not? The Premier has really taken a big step forward by introducing this legislation, but there is a major flaw in it, which will serve only to make people more cynical. The legislation captures everybody else, but there is a big wall around Macquarie Street. The Greens amendment will open up to public scrutiny how members of Parliament spend their allowances, thereby creating an important safeguard against rorting.

The Hon. John Hatzistergos: Are you the rorter?

Ms LEE RHIANNON: The Greens amendment is in line with freedom of information requirements in the United Kingdom, India, Ireland, South Africa and Scotland—all of which are subject to freedom of information laws. The Ombudsman points out that the Australian Law Reform Commission recommended in its 1995 report that parliamentary departments should be made subject to Commonwealth freedom of information laws. The Scottish Parliament's website publishes an online register of interests. It also covers expense details for all members. Scotland has not fallen apart! It does not cause great embarrassment to members of Parliament, but actually gives them more standing. It is what we should be doing here. While the New Zealand freedom of information Act does not apply to its Parliament, the New Zealand Government publishes a summary of entries and a register of interests online.

I put it to the Attorney General that although he has made it clear he will not change the law, he will not be prevented from implementing a requirement for the information to be published on the parliamentary website. We could easily work towards that, and it would be an advance. Let us keep in mind the money we are talking about. In last week's budget, the New South Wales Parliament was allocated $123 million with over $100 million of that amount allocated to members support. Again I put it to all members that this is public money and the public has a right to know how it is spent. The Attorney General may call that voyeurism, but I find that a very strange word to use in the context of public money. It will be interesting to hear how the Attorney General addresses that issue in his reply. That large chunk of taxpayers' money should not be sheltered from freedom of information laws. It should no longer be the case that members of Parliament are free to spend their generous salaries and allowances without scrutiny, except when there is a leak to some tenacious journalists.

The Hon. Charlie Lynn: If they paid us what we are worth, you would not have much to spend.

Ms LEE RHIANNON: I will acknowledge that interjection for you, Charlie. It is time the Government shone the light on this system of pay and entitlements. Premier Rees's reputation as a freedom of information champion will be undermined if his Government fails to support this amendment. Details of pay and entitlements of members of Parliament should be set out on the Internet to facilitate public scrutiny. As I have already pointed out to the Attorney General, the New South Wales Government can decide to publish this information right away. We do not need to change our freedom of information laws to allow that to happen.

The Hon. John Hatzistergos: Then why are you trying?

Ms LEE RHIANNON: I assumed that the Attorney General had been listening to the debate and that he would have heard the reasons.

The CHAIR (The Hon. Amanda Fazio): Order! I have already reminded members that they should not interject and that the member with the call should not respond to interjections.

Ms LEE RHIANNON: The Greens have campaigned for many years for details to be made public of how members of Parliament spend their allowances. We recently became aware of the very embarrassing scandal in the United Kingdom. I put it to members that the reason we do not have that type of scandal—such as members buying food for their dog, paying for a swimming pool or funding a mortgage for a house from their allowances—is because nobody can see our electoral allowance. People just do not know. I am not actually suggesting that that goes on here.

The Hon. Michael Veitch: Yes, you are.

Ms LEE RHIANNON: I acknowledge that interjection. I am not suggesting it goes on because I do not know. But it creates suspicion, and that needs to be cleared up. What is wrong with telling the public how public money is spent? I challenge the Hon. Michael Veitch to say why it should not be made public. I have published on my website—and I have offered to help the Attorney General to find it—a breakdown of how I have spent my electoral allowance every year since I took office in 1999, because I strongly believe that the public has a right to know.

The Hon. John Hatzistergos: Does Sylvia put hers on?

Ms LEE RHIANNON: Do you put yours on? That is the question. You have been given the example. I have called on former Premier Carr and former Premier Iemma and now Premier Rees to follow my example by publishing such information. I have even taken the step of publishing on my website the salaries and entitlements of the various members of Parliament. Obviously it is not possible to publish how the money is spent. If our small outfit can do that, clearly the Government could do it extremely easily.

We hear a lot about what politicians get paid and about the entitlements they receive. But do people know what their politicians earn, or how much a Minister receives, or what politicians' entitlements are and why they receive them? What is wrong with sharing that information? If the Government, the Opposition and the Conservative crossbenchers vote against these amendments, they will be admitting that they are not serious about freedom of information reform. To take Parliament out of this legislation is terrible; it weakens a good piece of legislation. Not only that; it is flying up the flag, saying, "We are a protected species in Macquarie Street. Don't come near us when it comes to FOI." I commend the amendments to the Committee.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [11.41 p.m.]: The Government opposes the Greens amendments. The Government has already sought the views of the Presiding Officers on the proposal to extend coverage of the legislation to the Parliament. Their advice has been made publicly available on the Department of Premier and Cabinet's website. No other jurisdiction in Australia has sought to extend freedom of information to the Houses of Parliament, and the advice from the Presiding Officers explains why. The Presiding Officers' advice raises significant concerns. Among other things, their advice notes that the principle of the independence of Parliament from the other branches of Government is fundamental to the ability of the Parliament to perform its role. This separation of powers is essential to the system of responsible government in New South Wales.

There is also a question about whether it is appropriate for Executive agencies, such as the Information Commissioner and the Administrative Decisions Tribunal, to be given powers of oversight over the Parliament. There are also concerns about the proper protection of parliamentary privilege. The advice also points out that the primary role of the parliamentary departments is not the implementation of Executive Government policy. Instead, it is to provide support to the Houses of Parliament and their members to enable them to perform their constitutional and other public functions. In light of this advice, the Government agrees that it would not be appropriate for the Parliament to be covered by this legislation.

With regard to the specific matters raised by Ms Lee Rhiannon, parliamentary entitlements are determined by the Parliamentary Remuneration Tribunal. The categories of expenditure and the logistics of Sydney allowances and other allowances and the ways in which they are able to be spent are documented, and that information is also publicly available. The information is also subject to periodic review by the Parliamentary Remuneration Tribunal. Additionally, of course, every year the Parliament, of its own volition, invites the Auditor-General to conduct an audit in relation to those expenses. That audit report is then presented publicly so that people are able to view the Auditor-General's reports and satisfy themselves in relation to the appropriate use or otherwise of those parliamentary entitlements. That is a very different position from what occurs in other jurisdictions.

It is all very well for people to cherry pick and to look at arrangements that occur in other jurisdictions. What we have in New South Wales is a regime that I believe ensures that the Parliament is able to function as it is set up to do, but at the same time ensures that the public has confidence in the use of parliamentary entitlements for the purposes for which they are provided. I recall that shortly before I became a member of this House there had been a major investigation by the Independent Commission Against Corruption in relation to parliamentary entitlements. The commission made a whole series of recommendations in order to improve the record keeping and accountability in relation to those entitlements. The commission's recommendations were responded to and, as I said, they provide, I believe, a proper basis to ensure public confidence in relation to parliamentary entitlements. For those reasons the Government will not support the Greens amendments.

Question—That Greens amendments Nos 2, 3 and 20 be agreed to—put.

The Committee divided.
Question resolved in the negative.

Greens amendments Nos 2, 3 and 20 negatived.

Part 1 agreed to.

Ms LEE RHIANNON [11.52 p.m.], by leave: I move Greens amendments Nos 4, 5, 7, 8, 9, 17 and 18 in globo:

No. 4 Page 6, clause 11, lines 26 and 27. Omit ", other than a provision of a law listed in schedule 1 as an overriding secrecy law".

No. 5 Page 6, clause 11, lines 28 and 29. Omit "For overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure of the information. Other secrecy". Insert instead "Secrecy".

No. 7 Page 7, clause 14 (1), lines 32–34. Omit all the words on those lines.

No. 8 Page 8, clause 14. Insert at the beginning of the Table:

1 Cabinet information Cabinet information

(1) There is a public interest consideration against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:

(a) a document that has been submitted to Cabinet for its consideration or that is proposed by a Minister to be so submitted, being a document that was brought into existence for the dominant purpose of its submission for consideration by Cabinet,

(b) an official record of Cabinet,

(c) a document that is a copy of, or part of, or contains an extract from, a document referred to in paragraph (a) or (b),

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of Cabinet, other than a document by which a decision of Cabinet has been officially published.

(2) Information contained in a document is not Cabinet information if:

(a) public disclosure of the information has been approved by the Premier or Cabinet, or

(b) 5 years have passed since the end of the calendar year in which the document came into existence.

(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).

(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would reveal or tend to reveal information concerning any Cabinet decision or determination.

(5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.

2 Contempt

There is a public interest consideration against disclosure of information the public disclosure of which would, but for any immunity of the Crown:

(a) constitute contempt of court, or

(b) contravene any order or direction of a person or body having power to receive evidence on oath, or

(c) infringe the privilege of Parliament.

3 Legal professional privilege

(1) There is a public interest consideration against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) An agency in whose favour legal professional privilege exists is required to consider whether it would be appropriate for the agency to waive that privilege before the agency takes the consideration under this clause into account as a public interest consideration against disclosure.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

4 Excluded information

(1) There is a public interest consideration against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency takes this consideration into account as a public interest consideration against disclosure of excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

5 Documents affecting law enforcement and public safety

There is a public interest consideration against disclosure of information contained in any of the following documents:

(a) a document created by the former Information and Intelligence Centre of the Police Service or the former State Intelligence Group,

(b) a document created by the Counter Terrorism and Special Tactics Command of the NSW Police Force, the former Counter Terrorist Co-ordination Command of the NSW Police Force, the former Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence,

(c) a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence,

(d) a document created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence,

(e) a document created by the Drug Intelligence Unit of the Department of Juvenile Justice in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.

6 Transport safety

(1) There is a public interest consideration against disclosure of information that would disclose:

(a) matter relating to an investigation or inquiry under section 65, 67 or 69 of the Rail Safety Act 2008, or

(b) matter relating to an investigation or inquiry into a transport accident or incident under section 46BA or 46BC of the Passenger Transport Act 1990.

(2) Despite subclause (1) (a), information about a matter referred to in that paragraph ceases to be covered by this clause:

(a) in the case of information relating to an inquiry under section 65 into a matter that is not also the subject of an investigation under section 67 or an inquiry under section 69, if the inquiry under section 65 is included in a list forwarded to the Minister under that section, or

(b) in the case of information relating to an investigation under section 67 or an inquiry under section 69, when the report into the investigation or inquiry is tabled before both Houses of Parliament.

(3) Despite subclause (1) (b), information about a matter referred to in that paragraph ceases to be covered by this clause when the report into the investigation or inquiry is tabled before both Houses of Parliament.

7 Adoption

There is a public interest consideration against disclosure of information that would disclose:

(a) matter relating to adoption procedures under the Adoption Act 2000, or

(b) matter relating to the receipt of an amended or original birth certificate or of prescribed information under the Adoption Act 2000.

8 Care and protection of children

There is a public interest consideration against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.

9 Ministerial Code of Conduct

There is a public interest consideration against disclosure of information the disclosure of which would disclose information contained in the Register of Interests kept by or on behalf of the Premier pursuant to the Code of Conduct for Ministers of the Crown adopted by Cabinet.

10 Aboriginal and environmental heritage

(1) There is a public interest consideration against disclosure of information contained in a document that is the subject of a declaration referred to in section 161 of the National Parks and Wildlife Act 1974.

(2) There is a public interest consideration against disclosure of information that is matter that the Director-General under the Threatened Species Conservation Act 1995 has determined should not be disclosed to the public under section 146 of that Act.

(3) There is a public interest consideration against disclosure of information that is matter that the Scientific Committee under the Threatened Species Conservation Act 1995 has recommended to the Minister should not be disclosed to the public under section 146A of that Act and the Minister has accepted that recommendation.

(4) There is a public interest consideration against disclosure of information contained in a plan of management or draft plan of management for an area of community land under Division 2 of Part 2 of Chapter 6 of the Local Government Act 1993 that is the subject of a resolution of confidentiality referred to in section 36DA (2) of that Act (which relates to the disclosure of the nature and location of a place or an item of Aboriginal significance).

No. 9 Page 8, clause 14, Table. Omit the following from clause 1 of the Table:

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

No. 17 Page 56, clause 131, lines 35 and 36. Omit all the words on those lines.

No. 18 Page 65, schedule 2, lines 4–6. Omit "Under schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure)."

These amendments lift the conclusive presumption against the release of information set out in schedule 1 and bring these items into the table of considerations that should be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of information. The Greens believe that all exemptions in schedule 1 should be subject to a public interest test to enable the specific circumstances of each case to be considered before a decision is made. These amendments would allow a balancing of interests in relation to information such as Cabinet documents and law enforcement and intelligence information, not just an outright blanket rejection of a freedom of information request.

I note that the Leader of the Opposition has chosen to speak only once on these amendments. At the beginning of the Committee stage he said that these changes are alarming. That warrants more consideration. It is disappointing that the Leader of the Opposition will not contribute further to the debate because again he has distorted the Greens position. It is not as though there will be any mass release of law enforcement information or suddenly people will be able to find this information easily because of a Greens amendment that might be passed. All we are saying is that there is no blanket exemption; the system would introduce a test, and there is still a presumption against disclosure. The amendments provide for each case to be considered on its merits. If members can take that on board at this late hour it will demolish the argument and scare tactics of the Leader of the Opposition.

The Public Interest Advocacy Centre pointed out in its submission that some documents may genuinely be of a sensitive nature when they are created, such as a document containing information about a current criminal investigation. Hence it would not be in the public interest to release those documents at the time, yet their sensitivity may decrease as time passes, in which case they should be available for potential disclosure to the public at the appropriate time. The Greens amendments adopt a slightly narrower definition of "Cabinet information" as recommended by the Ombudsman in his final report, using the tighter Commonwealth Freedom of Information Act definition of a "Cabinet document" set out on page 59 of the report. We recognise that it is important that Cabinet deliberations be kept confidential. However, the definition of "Cabinet information" in the bill is much broader than that recommended by the Ombudsman.

The definition in the bill includes, for example, documents prepared before or after Cabinet and a document in preliminary draft form. Clause 2 (1) (c) in the definition has not been recommended by the Ombudsman and has not been explained. The Public Interest Advocacy Centre pointed out that it reintroduces the existing test that a document can be produced for another purpose, but if one purpose is that it is being submitted to Cabinet that is sufficient to attract the exemption. I note that the Government is still considering an Ombudsman's recommendation that the Premier identify Cabinet material that can be proactively released on a regular basis. The Greens urge the Government to adopt that recommendation in this bill. The Greens amendments also allow Cabinet information to be released five years, not ten years, after their creation.

The Hon. John Hatzistergos: Is that an Ombudsman's recommendation? No!

Ms LEE RHIANNON: No, I set that out earlier.

The Hon. John Hatzistergos: So you are going against his recommendation.

The CHAIR (The Hon. Amanda Fazio): Order! Members will cease interjecting.

Ms LEE RHIANNON: The distortion in the Attorney General's interjections is considerable. I made clear the Greens position on this matter. I have made the Ombudsman's position clear at all times, and I have received information from the Public Interest Advocacy Centre. It is worth reminding members that earlier in the debate the Attorney General skipped over what the Ombudsman had said and tried to avoid the fact that the Government had failed to pick up one of the Ombudsman's recommendations. Our amendments remove the Executive Council from the reach of the bill's exemptions in schedule 1. The Commonwealth, in its freedom of information exposure draft, proposed the abolition of this exemption in line with a recommendation by the Australian Law Reform Commission in its 1995 review of freedom of information laws. It argues that the request for draft Executive Council documents would be rare, and that, even if such a request were made, genuinely sensitive material would be protected by one of the other specific exemptions.

These amendments also remove from the items in which there is a public interest consideration against disclosure information that would reveal a deliberation of consultation conducted or an opinion, advice or recommendation given in such a way as to prejudice a deliberative process of government or an agency. As pointed out by freedom of information expert Mr Peter Timmins, this provision represents a step backwards from the current exemptions for internal working documents. In the current Act there is no assumption that disclosure of an opinion, advice or recommendation would prejudice the deliberative process of government or an agency. This new provision is not supported in the Ombudsman's report. No clear argument has been made for why the new provision is necessary, and it should be deleted. I commend the amendments to the Committee.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.01 a.m.]: The Government opposes the Greens amendments, which I will deal with in sequence. As to Greens amendment Nos 4 and 5, there are currently hundreds of secrecy provisions across the New South Wales statute book. The current Freedom of Information Act provides that if any of those provisions apply then a document is automatically exempt. There is no public interest test to be applied. The new bill constrains that list to 20 or so secrecy provisions that provide an overriding reason for not releasing the information. The legislation constrains the number of cases where this automatic provision of overriding secrecy will apply. The reason these provisions are prescribed as overriding secrecy laws is that this is the type of information that officers in agencies should clearly not be releasing in response to a freedom of information application.

It was very interesting to hear the contribution of Ms Lee Rhiannon but nowhere did she refer to the kind of information that is covered by these particular provisions. Let me tell you now the kinds of provisions Ms Lee Rhiannon would have available to be the subject of a public interest test: the identification of juries under the Jury Act and the location of a witness under the Witness Protection Act. These are the kinds of things that Ms Lee Rhiannon wants some bureaucrats sitting in a government office to determine whether or not it is in the public interest to release. That is what those amendments would allow. More than that, any decision that would be made would be made by a public servant and then subject to the absolute protection of law. Forget the fact that the release of information would be a gross contravention of the Witness Protection Act, because this legislation overrides that legislation. Forget the fact that there would be a gross violation of privacy that could put people's lives at risk, because this legislation will override that as well.

As I said, the list of overriding secrecy provisions is a tight list of documents that Parliament should rightly decide should not be made available in response to a freedom of information application. No new overriding secrecy provisions can be added except by an amendment to this legislation through an Act of Parliament. It should also be noted that the bill expressly provides that the list of overriding secrecy provisions will be the subject of ongoing review by a joint parliamentary committee. For those reasons the Government opposes Greens amendments Nos 4 and 5.

Greens amendments Nos 7 and 8 apply a case-by-case public interest test to the items in schedule 1, which provides for a conclusive test. The documents in schedule 1 are documents for which there are obvious and compelling public interest reasons as to why they should not be released. The Greens amendment in effect says that one public servant's opinion on public interest in relation to these documents should be able to completely override the view of the Parliament. Not only that, the amendment would mean that public servants could be given the power to override orders of the courts as well.

Clause 4 of schedule 1 says that information should not be released if doing so would amount to a contempt of court. What this provision would say is, "Forget what that consequence might be and some public servant sitting in a bureaucracy could determine that it is in the public interest to override a court's decision in relation to a particular matter". Again we are facing a situation where the Greens say, "Never mind what the judge of a court says, some public servant can determine it is in the public interest and will therefore release it". This amendment is not about increasing openness and transparency; it is the opposite. It is about allowing unelected bureaucrats in back offices to unilaterally override the decisions of the Parliament and the courts.

Adoption procedures under the Adoption Act, for example, are prescribed in schedule 1. The provisions of that Act contain detailed rules and processes governing access to information about adoption. This is entirely appropriate given the sensitive personal nature of the information involved. Any public interest release of information should be dealt with under that Act. The point is that freedom of information should not be used as a means of circumventing the processes that Parliament has already decided should apply to the release of that sort of information.

Even the clause dealing with Cabinet information allows for public interest disclosure. In this case that disclosure has to be approved by the Premier and the Cabinet. That is as it should be. The decision whether it is in the public interest to release a particular Cabinet document should not fall to some unelected officer who has nothing to do with Cabinet, who has never seen the inside of the Cabinet room—and never should—and who has no idea whatsoever about the context of the Cabinet matter or the sensitivity of the matter being dealt with. It would constitute a complete reversal of our Westminster system of responsible government for some public servant to be able to override the decision of the Premier and of the Cabinet on issues of Cabinet confidentiality. The Government cannot support that amendment.

The Government also opposes the proposal to remove the provision relating to the Executive Council. This was not one of the recommendations of the Ombudsman. In the review of the Queensland Freedom of Information legislation the author, Dr David Solomon, expressly recommended that the confidentiality of Executive Council documents be maintained. The Solomon review agreed with what the Queensland Parliamentary Legal, Constitutional and Administrative Review Committee said:

(a) the Governor, as the Queen's representative, should not be subject to FOI legislation and accordingly it is inappropriate to subject to FOI legislation the body through which the Governor functions;

(b) as the Governor is excluded from the Act, the body within the executive branch of government over which the Governor presides should similarly be exempt; and

(c) exemption is necessary to complement the Cabinet exemption because, in effect, Executive Council is the formal expression of the Cabinet process.

It would be inconsistent for Executive Council documents to be treated any differently from Cabinet documents. The Government opposes that amendment. The Government opposes the proposal to reduce the production period for Cabinet documents from 10 to 5 years. The Cabinet definition has already been significantly narrowed in the new legislation. The new definition expressly provides that a document prepared for Cabinet's consideration is only a Cabinet document if that was the dominant purpose for which it was prepared. It is because of this more stringent dominant purpose test in relation to documents submitted for Cabinet consideration that the bill now needs to include a provision dealing with documents submitted for Cabinet's approval. For instance, Cabinet might be asked to approve a document setting out the proposed Government response to a parliamentary inquiry. The dominant purpose of that document is clearly not submission to Cabinet; the dominant purpose of that document is to respond to the Parliamentary inquiry. Nevertheless, until Cabinet approves a response the document should properly be considered to be a Cabinet document.

It is for documents such as these that clause 2 (1) (c) has been included in the schedule. It states that a document prepared for a particular purpose, such as to respond to a parliamentary inquiry, will be a Cabinet document if it was prepared in order for Cabinet to approve its use for that purpose. The new definition has been further narrowed to provide expressly that a document that is attached to a Cabinet document is not automatically a Cabinet document. Instead, each attachment is required to be assessed on its own merits. The new definition also provides that other documents that were prepared before Cabinet deliberations will only be Cabinet documents if they reveal the position of a particular Minister in Cabinet.

Under the current Freedom of Information Act a document prepared before a Cabinet deliberation would be protected as a Cabinet document merely if it reveals any information concerning that subsequent deliberation. These changes to the definition constitute a significant tightening of the Cabinet document definition, and they accord with the Ombudsman's recommendations. All these changes were included in the exposure draft bills. I am advised that officers from the Department of Premier and Cabinet met with the Ombudsman and that the new Cabinet definition was specifically discussed with him. The Ombudsman raised no concerns with it, either in that meeting or his formal submission.

The Government opposes Greens amendment No. 9, to remove as a public interest considerations that disclosure could prejudice a deliberative process. The bill already addresses concerns about the current exemption in the Freedom of Information Act for internal working documents. This bill does away with that exemption altogether. Instead, the bill does exactly what the Ombudsman recommended it should do: it applies a public interest test to these documents. It says that the focus of that test should not be on the mere fact that the document was an internal working document; rather, the focus should be on whether release would actually harm or prejudice the deliberative process. Further, the bill says that this consideration is only one factor.

Even if disclosure might harm the deliberative process, that has to be weighed against other factors, including the general presumption of a public interest in favour of disclosure. These provisions of the bill implement exactly what the Ombudsman recommended. Once again the Greens are proposing amendments that run counter to the express recommendations that were made by the Ombudsman. The amendments proposed by Greens amendments Nos 17 and 18 are consequential on amendment No 7 and should be opposed on the same basis. The amendment proposed by Greens amendment No. 20 is consequential on amendment No. 2 and should also be opposed on the same basis.

I might add in passing what a completely contradictory approach is being taken by the Greens to these issues of transparency and disclosure. The Greens are getting up in this place and preaching to us all about the importance of openness, accountability and transparency, yet in the previous debate when we were discussing information from schools the Greens were trying to pull the curtain down on the release of information. That is the level of consistency and the sort of approach that we expect these days from the Greens—selectivity. When it suits them, shut it down, and when it does not suit them and they can get a cheap headline, open it up.

Ms LEE RHIANNON [12.10 p.m.]: The Attorney General has engaged in extreme scare tactics and brings no credit to the office of Attorney General. He is engaging in one of his favourite sports, misrepresenting the position of the Greens and my comments. I am sure the Attorney General wanted to go into the realm of fantasy because he knows there will be no automatic release of any documents under our amendments. Each case will be considered on its merits.

The Hon. John Hatzistergos: Why should a juror's identity be disclosed?

Ms LEE RHIANNON: They do not have to be disclosed. I am not saying they would be disclosed, and that is where the Attorney General is distorting our arguments so deeply dishonestly. The way the Attorney General has constructed his argument amounts to a most serious attack on the public servant who will administer the Act. The Greens do not say that any of these documents will be released; we are saying that each case will be considered on its merits, on a case-by-case basis. Maybe it will always be the decision that nothing will be released but at least there is an option in the spirit of freedom of information. The Attorney General has quite disgracefully reflected on the public servants who will administer the Act. The Attorney General should withdraw his comments and correct what he said. I look forward to hearing the comments of the Attorney General because he has stepped over the line in a most serious way.

Importantly, in this debate the Attorney General has not addressed why the definition of "Cabinet documents" in the bill is much broader than that recommended by the Ombudsman. The Attorney General also conveniently skates over this area to try to mould arguments when he is having difficulty. I will explain the notion of the wheelbarrow of Cabinet documents moving through a Cabinet room, which is widely understood by many people who work in this area. The wheelbarrow effect occurs when a government claims something is a Cabinet document when it has literally moved through the room while Cabinet was meeting, in order to ensure that the document is not released. The Government has falsely claimed that it is a Cabinet document.

The Attorney General has highlighted that the wheelbarrow still takes path to the Cabinet door under this Government, and that is where this legislation is weak. I am happy to say that the Attorney General has done a good job and it is good legislation, but the Greens argue strongly that the legislation has flaws and loopholes that could easily be closed by him. The fact that the Attorney General did not address why the definition of "Cabinet documents" in the bill is much broader than that recommended by the Ombudsman shows the flaws in his argument and where he has trouble, because it cannot be justified.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.13 p.m.]: I will respond briefly to Ms Lee Rhiannon. Will Ms Lee Rhiannon explain to me any circumstances where she believes it would be appropriate for a juror's identity to be revealed? Will she explain also any circumstances where she believes it would be appropriate for a person who is on a witness protection program to have their location and identity revealed and for those determinations to be made by some bureaucrat public servant? Will she reveal to me any circumstances where she believes that a confidentiality order by a judge in a court should be overturned on a public interest test by some bureaucrat sitting in a departmental office? Will Ms Lee Rhiannon explain the circumstances where she believes that those privacy protections and orders of a court should be overridden? I would be very interested to know.

Question—That Greens amendments Nos 4, 5, 7, 8, 9, 17 and 18 be agreed to—put and resolved in the negative.

Greens amendment Nos 4, 5, 7, 8, 9, 17 and 18 negatived.

Ms LEE RHIANNON [12.15 p.m.], by leave: I move Greens amendments Nos 6 and 10 in globo:

No. 6 Page 7, clause 12 (3), line 22. Omit "can". Insert instead "is to".

No. 10 Page 11, clause 17. Insert after line 19:

(c) to enforce compliance by agencies with their obligations under this Act,

These amendments relate to the function of the Information Commissioner. As I mentioned earlier, and I understand all members agree, the Information Commissioner will be critical in driving these reforms. These amendments require the commissioner to issue guidelines about public interest considerations in favour of the disclosure of government information for the assistance of agencies. The current bill says that he or she may issue these guidelines. The guidelines are critical to the proper operation of the Act, and this amendment ensures they will be produced. These amendments also give the Information Commissioner the function of enforcing compliance by agencies with their obligations under the Act. This is a proper role for a figure to whom the Government has given the job of championing open government and ensuring the obligations of agencies are met. I commend these amendments to the Committee.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.16 p.m.]: The recommendations of the Ombudsman were very clear, that is, the position should not have deliberative responsibilities. He indicated that whilst he had the responsibility for oversight in relation to the legislation there was a high degree of cooperation on the part of agencies. In terms of being able to facilitate cooperation of government agencies and departments which were the subject of the legislation, there was no recommendation to have any determinative or deliberative functions of the kind that are proposed in the amendments. In relation to amendment No. 6 it is made quite clear that the Information Commissioner has a discretion to issue guidelines, and I anticipate that that will occur. Frankly, I do not see what this amendment is seeking achieve, rather than to dictate to the Information Commissioner how he should do his job.

Question—That Greens amendments Nos 6 and 10 be agreed to—put and resolved in the negative.

Greens amendment Nos 6 and 10 negatived.

Ms LEE RHIANNON [12.19 a.m.]: I move Greens amendment No. 11:

No. 11 Page 26, clause 53 (2), line 10. Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.".

Greens amendment No. 11 requires that the agency responsible for a freedom of information request conduct searches using the most efficient means reasonably available to the agency to identify information. This amendment seeks to avoid excessive costs for the applicant where an applicant is charged for searches of paper files when the search could be done electronically.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.20 a.m.]: The Government will not oppose this amendment. I make it clear, however, that the agencies that carry out these tasks are permitted to charge only $30 an hour for dealing with access applications. That rate has not increased since 1989 and does not cover the full cost of processing freedom of information matters. Clearly, where the costs of an agency undertaking freedom of information searches are more than it collects from the fee there is a very real interest in the agency doing its work efficiently. Doing it inefficiently does not save it any money; it actually costs it money. In any event, bearing in mind what is intended by the amendment and the fact that, in essence, the charges and costs facilitate that occurring, the Government will not oppose the amendment.

Question—That Greens amendment No. 11 be agreed to—put and resolved in the affirmative.

Greens amendment No. 11 agreed to.

Ms LEE RHIANNON [12.22 a.m.], by leave: I move Greens amendments Nos 12, 16 and 19 in globo, on sheet C2009-055A:

No. 12 Page 29, clause 57 (1), line 33. Omit "20 working". Insert instead "21 calendar".

No. 16 Page 42, clause 86 (1), line 9. Omit "15 working". Insert instead "14 calendar".

No. 19 Page 70, schedule 4, clause 1. Insert after line 9:

calendar day means any day (including a Saturday, Sunday and public holiday).

These amendments bring the time frames for deciding applications and internal review of applications back to those set out in the existing Freedom of Information Act. This is in line with a number of submissions, including from freedom of information expert Peter Timmins, who argues that with scope for additional time for dealing with large requests the current time frames should remain in place. He argues that many millions of dollars have been spent on systems within government to promote efficient information handling and the extension of time is unnecessary. It has to be seen as a backward step. I commend these amendments.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.23 a.m.]: The Government cannot support these amendments. The time frames proposed in the bill are according to the Ombudsman's recommendations. They are reasonable and realistic. Twenty working days is in line with similar requirements in the United Kingdom and New Zealand and it is shorter than that in most Australian jurisdictions. The Commonwealth level is 30 days and in Victoria it is 45 days. Moving to working days also recognises the problems that agencies face, particularly around Christmas and New Year when they may have a larger amount of staff on leave. Importantly, under the new bill there will be consequences if the time frames are not met. If an agency fails to deal with an application in time, then the applicant's review rights will be immediately triggered. The applicant will be able to immediately apply for review by the Information Commissioner or the Administrative Decisions Tribunal. In addition, the applicant will be entitled to a full refund of fees, advance deposits and charges. That means that the time periods under the new bill are both realistic and firm.

Question—That Greens amendments Nos 12, 16 and 19 be agreed to—put and resolved in the negative.

Greens amendments Nos 12, 16 and 19 negatived.

Ms LEE RHIANNON [12.24 a.m.], by leave: I move Greens amendments Nos 13 and 14 in globo:

No. 13 Page 33, clause 64 (2), line 17. Insert "that is necessary" after "amount of time".

No. 14 Page 33, clause 64 (2) (a), line 19. Insert "efficiently" after "dealing".

These amendments impose an additional obligation to undertake a search using the most efficient means available. This is because costs are often incurred for searches of paper files when information requested can be readily identified and retrieved electronically. It may seem a small matter, but the people who work in this area have identified it as a way to improve the operation of this Act, once passed. I urge the Attorney General to support these amendments.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.25 a.m.]: On reflection, the Government will not oppose these amendments. As I indicated in relation to an earlier amendment, agencies have no incentive to spend more time dealing with an application than is absolutely necessary. In my view, including the provisions does no particular harm. But it should not be suggested that there is any incentive in the existing structure, particularly bearing in mind the cost to the agency in carrying out these searches, by prolonging the length of time that might otherwise be incurred.

Question—That Greens amendments Nos 13 and 14 be agreed to—put and resolved in the affirmative.

Greens amendments Nos 13 and 14 agreed to.

Ms LEE RHIANNON [12.26 a.m.]: I move Greens amendment No. 15:

No. 15 Page 42, clause 85. Insert after line 2:

(2) The fee paid for internal review of a decision is to be refunded if the Information Commissioner recommends on a review of the decision that the fee be refunded on the basis that the decision was not reasonably made.

This amendment allows for a $40 internal review fee to be refunded if the Information Commissioner so recommends following a review of the decision that the fee be refunded because a decision was not reasonably made. It would be unjust for an applicant to have to pay this fee where the initial decision was made unreasonably. Again, I urge the Attorney General to accept this amendment. It is a small measure that would make this legislation work more efficiently. It has been suggested by those who regularly work in this area. I urge him to accept the advice.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.27 a.m.]: I appreciate the sentiment of the honourable member's proposal. However, consistent with the Ombudsman's recommendation, it is not possible to accept the amendment. The Ombudsman expressly recommended that the Information Commissioner should not be given determinative powers such as this. The Ombudsman considers that the power to make recommendations, which is the same power that he has, is more conducive to effective oversight regimes. Therefore, this amendment is inconsistent with the Ombudsman's recommendations and with the proposed role of the Information Commissioner. Obviously, any recommendations that are made by the Information Commissioner are given appropriate weight by the agency. That has been the practice of the Ombudsman when he had this responsibility. I have no reason to believe that it will not be the agency's response to any recommendation from the Information Commissioner.

Question—That Greens amendment No. 15 be agreed to—put and resolved in the negative.

Greens amendment No. 15 negatived.

Part 2 [clauses 5 to 17] agreed to.

Part 3 [clauses 18 to 40] agreed to.

Part 4 [clauses 41 to 79] as amended agreed to.

The CHAIR (The Hon. Amanda Fazio): Order! There has been a request to deal with part 5 by clauses.

Clauses 80 to 105 agreed to.

Ms LEE RHIANNON [12.29 a.m.]: I seek to move that clause 106 be deleted. The clause removes powers in respect of Cabinet and Executive Council documents confirmed by the Supreme Court as currently held by the tribunal. The Greens believe that all decisions of an agency should be subject to—

The CHAIR (The Hon. Amanda Fazio): Order! It is not in order at this stage for a member to move that a clause be deleted. However, a member may argue that members should not vote to adopt the clause.

Ms LEE RHIANNON: Could I clarify your advice, Madam Chair?

The CHAIR (The Hon. Amanda Fazio): At this stage you cannot move to delete clause 106, but you can speak to why you believe the Committee should not adopt clause 106.

Ms LEE RHIANNON: Thank you for clarifying that, Madam Chair. I urge members to vote to delete clause 106 of the bill. The clause removes powers in respect of Cabinet and Executive Council documents confirmed by the Supreme Court as currently held by the tribunal. The Greens believe that all decisions of an agency should be subject to full merit review by the Administrative Decisions Tribunal. There is no reason to restrict or limit the tribunal's powers except that the Government is seeking to shield itself from scrutiny regarding freedom of information decisions made around Cabinet and Executive Council documents.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.31 a.m.]: The Government supports the adoption of the clause. The clause actually replicates what is currently in section 57 of the freedom of information legislation, so it is not a new provision. The Greens are wrong to say that the Administrative Decisions Tribunal has the power under the current Act to go beyond a reasonable grounds review and to undertake a full merits review in relation to Cabinet documents and other restricted documents. The position in New South Wales now is perfectly clear. The Administrative Decisions Tribunal has the power to undertake a reasonable grounds review of restricted documents. It does not have the power to undertake a full merits review of restricted documents. The Administrative Decisions Tribunal does not have any residual discretion to release restricted documents. Restricted documents under the current Freedom of Information Act include, of course, Cabinet documents and Executive Council documents.

Clause 106 is not a new provision. It does not reduce the Administrative Decisions Tribunal's power in any way. In fact, the new bill increases the Administrative Decisions Tribunal's power because currently the tribunal's function is limited in respect of four classes of documents, which are Cabinet documents, Executive Council documents, law enforcement documents and terrorism-related documents. Under the new bill only the first two categories will be subject to this limitation and it is a limitation that is entirely appropriate to ensure the proper protection of Cabinet confidentiality.

Question—That clause 106 be agreed to—put and resolved in the affirmative.

Clause 106 agreed to.

Clauses 107 to 112 agreed to.

Part 6 [Clauses 113 to 120] agreed to.

Part 7 [clauses 121 to 132] agreed to.

Ms LEE RHIANNON [12.33 a.m.]: I urge members to vote no to the question that the schedule as read stand as part of the bill because, as a result of the amendment, the secrecy provisions in schedule 1, clause 1, have been omitted from schedule 1 and will now be subject to clause 6 in the table, which subjects them to a public interest consideration against disclosure. I remind members that it is not a blanket exemption; it is a more balanced way of approaching it because we should look at the circumstances of each case before making a decision. I urge members to vote against it. I will leave it at that because I think I have adequately set out the case in previous parts of the debate.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Industrial Relations) [12.34 a.m.]: For the same, reasons the Government will not support the Greens position.

Question—That schedule 1 be agreed to—put and resolved in the affirmative.

Schedule 1 agreed to.

Schedules 2 to 5 agreed to.

Title agreed to.

The CHAIR (The Hon. Amanda Fazio): Order! The Committee will now deal with the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009. There being no amendments proposed, I shall put all schedules and the title to the Committee in one question.

Clauses 1 to 3, schedules 1 and 2, and title agreed to.

The CHAIR (The Hon. Amanda Fazio): Order! The Committee will now deal with the Government Information (Information Commissioner) Bill 2009. There being no amendments proposed, I shall put all parts, schedules and the title to the Committee in one question.

Parts 1 to 5, schedule 1 and title agreed to.

Government Information (Public Access) Bill reported from Committee with amendments, and cognate bills reported without amendment.


Motion by the Hon. John Hatzistergos agreed to:

That the report be adopted.

Report adopted.


Motion by the Hon. John Hatzistergos agreed to:

That these bills be now read a third time.

Bills read a third time. The Government Information (Public Access) Bill 2009 was returned to the Legislative Assembly with a message requesting its concurrence in the amendments. The cognate bills were returned to the Legislative Assembly without amendment.