Mr GREG SMITH (Epping—Attorney General, and Minister for Justice) [5.29 p.m.]: I move:

That this bill be now agreed to in principle.

This bill was introduced in the other place on 24 November 2011 and is in the same form. The second reading speech appears at pages 51 to 52 in the Hansard Proof of 16 February 2012. I commend the bill to the House.

Mr PAUL LYNCH (Liverpool) [5.30 p.m.]: I lead for the Opposition on the Government Information (Public Access) Amendment Bill 2011. The Opposition does not oppose the bill. The bill contains minor amendments to the current freedom of information regime. The principal Act that the bill seeks to amend was a matter of great significance to this State, particularly with its cognate bills, as it represented the first complete and substantial overhaul of freedom of information structures in this State in 20 years. It clearly was aimed at turning that system on its head and dramatically improving transparency and integrity of government. It aimed to move the focus to proactive disclosure and stemmed from what was said to be a general consensus that the freedom of information Act was broken and needed to be fixed. The principal Act was progressive reform of great import.

This bill contains a series of quite minor tweaks to the principal Act. However, that is not to say that the bill should be opposed, as the amendments are worth pursuing. But perhaps it is worth keeping in mind that they are particularly minor compared to the substance of the principal bill. The objects of the bill are primarily to amend the 2009 primary legislation, the Government Information (Public Access) Act. As I read the bill, it certainly is the case that it contains minor amendments. The bill amends the Government Information Public Access Act and the Criminal Records Act 1991, the Privacy and Personal Information Protection Act 1998 and the Commission for Children and Young People Act 1998. It makes amendments also to the Privacy Code of Practice (General) 2003.

When introducing this bill, the member with its carriage in the other place described the modest aims of this bill—to tidy up and clarify certain minor aspects of the Act and keep it operating smoothly. The bill includes the following provisions. Sensibly, it alters the current strict position against disclosing information about spent convictions. This will allow agencies to give spent conviction information to the person to whom it relates. It changes the terminology of publication guide and guides to agency information guide or guides; it makes clear that open access does not breach copyright; and the timing for agencies to have information on their disclosure logs is clarified.

Proposed changes to section 56 make clear that third parties can object to certain information being disclosed about them. There is also the removal of a $40 fee in some limited circumstances when an internal review is recommended by the information commissioner. Section 82 currently prevents internal review of a decision if it is made by the principal officer of an agency or by a Minister. This is extended to include a Minister's staffer. It is perhaps worth noting briefly what is not in the bill. The Coalition went to the last election with a policy that said in government it would pursue a new era of open government, including reforming the freedom of information process based on the following basic principles and initiatives:

pro-active disclosure of government information;

one-stop online shop for information from all government agencies;

enforced public disclosure of government contracts and grants; and

no cost for FOI applications and the establishment of mandatory deadlines.

I note the complete absence of any of those initiatives from this bill—a failure of an election commitment by the current Government. However, this bill should not be opposed. The bill is not particularly significant in making major changes; it is perhaps on the same level of significance as the Library Bill. On that basis I assume a couple of dozen Government members will be telling us how good it is. The Opposition does not oppose the bill.

Mr CRAIG BAUMANN (Port Stephens—Parliamentary Secretary) [5.34 p.m.]: I support the Government Information (Public Access) Amendment Bill 2011, which introduces minor amendments to the Government Information (Public Access) Act 2009. The Act repealed the Freedom of Information Act 1989 with the aim of achieving greater openness and transparency in government. The Act has been in place for around 18 months and users have identified some minor operation issues. This bill seeks to address those issues. We live in a world where our every move and word may be recorded for perpetuity thanks to the glorious digital age, which is a blessing and a curse. An incredible amount of information is recorded about all of us and it is our fundamental right to have access to that information. The bill aims to tidy up and clarify certain aspects of the Act so that it can run smoothly and be more user-friendly. The objects of the bill are:

(a) to amend the Government Information (Public Access) Act 2009 (the principal Act):

(i) to clarify the timing for the recording of information in the disclosure logs of agencies and what can be included in such logs and to enable affected persons who are not access applicants to object to certain information about them being included in such logs, and

(ii) to enable parts of agencies to be treated as separate agencies for the purposes of the principal Act, and

(iii) to confirm that access to open access information is to be provided in a manner that has due regard to copyright issues, and

(iv) to enable an agency to refuse to provide access to government information if the access applicant has already been provided with the information, and

(v) to remove the current requirement to pay a fee for an internal review by an agency following a recommendation by the Information Commissioner, and

(vi) to confirm that an agency may require proof of identity from an access applicant before providing access to government information if the access application involves certain personal factors about the applicant, and

(vii) to provide that there is no conclusive presumption of overriding public interest against disclosure of a spent conviction to the person convicted, and

(viii) to clarify when an agency is required to consider whether to waive legal professional privilege in connection with an access application, and

(ix) to make certain other minor amendments, amendments in the nature of statute law revision and amendments that provide for savings and transitional matters,

(b) to amend the Criminal Records Act 1991 to provide that it is not an offence for a public authority or other government agency that has a record of a spent conviction (or its authorised officers) to make information about the conviction available to the person who was convicted,

(c) to amend the Privacy and Personal Information Protection Act 1998 to enable the regulations to make provision for a public sector agency to be treated as part of another public sector agency, or for a part of a public sector agency to be treated as a separate agency, for the purposes of that Act,

(d) to make amendments in the nature of statute law revision to the Commission for Children and Young People Act 1998 and the Privacy Code of Practice (General) 2003.

The bill clarifies, amongst other things, that where an agency waives, reduces or refunds a fee, an application can still be validly made and determined. Agencies can require proof of identity where necessary—for example, when someone seeks access to personal information. Applications can be made from overseas addresses. The bill addresses also some inconsistencies with agencies' disclosure logs—for example, clarifying that the right to object to information going on to a disclosure log is not restricted to people applying for access to information but to third parties whose information may be affected.

These minor amendments will make it easier for agencies and the public to be clear about their position when using the Act and underpins the Government's commitment to transparency of access to government information. Importantly, the bill seeks to amend the Criminal Records Act 1991 to provide that it is not an offence for a public authority or other government agency that has a record of a spent conviction to make information about the conviction available to the very person who was convicted. The bill also will amend the Privacy and Personal Information Protection Act 1998 to enable the regulations to make provision for a public sector agency to be treated as part of another public sector agency or for part of a public sector agency to be treated as a separate agency for the purposes of the Act. This will permit a more practical approach to the administration of the Act.

When entities are not part of the same agency they may be treated as one agency for the purposes of handling complaints and internal reviews. The bill introduces only minor and technical amendments to the existing Government Information (Public Access) Act 2009. However, even minor matters of process can have an important impact on people's rights. For example, this bill makes clear that third parties can object to the inclusion of information in agencies' disclosure logs where their information is affected by an application made by someone else. The bill makes it clear that third parties aggrieved by a decision of an agency can seek review directly to the Information Commission when no internal review is available, such as when decisions are made by Ministers' officers. These changes are technical, but they also clarify the existence of important rights. They may have a real and positive impact on a third party who is genuinely concerned that their information should not be made public, and who wants to seek a review of an agency decision.

This Government is determined to deliver the change the people called for overwhelmingly to rebuild our State and to make New South Wales number one again. One of these goals is goal 31: To improve government transparency by increasing access to government information. The community has a right to openness, accountability and transparency when it comes to government decision-making and information. Greater public access fosters collaboration, increases efficiency and fosters a public sector that values and shares information. Already we have seen an improvement in the way people use government services, thanks to innovations such as Live Traffic NSW, SMS bus services, police eyewatch and real-time hospital emergency information. The bill will finetune the procedures that underpin the community's right to access government information. I commend the bill to the House.

Mr STEPHEN BROMHEAD (Myall Lakes) [5.41 p.m.]: I support the Government Information (Public Access) Amendment Bill 2011, which introduces amendments to the Government Information (Public Access) Act 2009. The Act repealed the Freedom of Information Act 1989 and made a significant break with the structure of that Act. The aim was to achieve greater openness and transparency in government. The Government Information (Public Access) Act 2009 has been in effect for approximately 18 months. In the early stages users of the Act identified some issues with its operation and practice. The bill seeks to address those issues. It has been developed in consultation with government agencies and with the Office of the Information Commissioner. The objects of the bill are as follows:

(a) to amend the Government Information (Public Access) Act 2009 (the principal Act):
(i) to clarify the timing for the recording of information in the disclosure logs of agencies and what can be included in such logs and to enable affected persons who are not access applicants to object to certain information about them being included in such logs, and

(ii) to enable parts of agencies to be treated as separate agencies for the purposes of the principal Act, and to confirm that access to open access information is to be provided in a manner that has due regard to copyright issues, and

(iii) to enable an agency to refuse to provide access to government information if the access applicant has already been provided with the information, and

(v) to remove the current requirement to pay a fee for an internal review by an agency following a recommendation by the Information Commissioner, and

(vi) to confirm that an agency may require proof of identity from an access applicant before providing access to government information if the access application involves certain personal factors about the applicant, and

(vii) to provide that there is no conclusive presumption of overriding public interest against disclosure of a spent conviction to the person convicted, and

(viii) to clarify when an agency is required to consider whether to waive legal professional privilege in connection with an access application, and

(ix) to make certain other minor amendments, amendments in the nature of statute law revision and amendments that provide for savings and transitional matters,

(b) to amend the Criminal Records Act 1991 to provide that it is not an offence for a public authority or other government agency that has a record of a spent conviction (or its authorised officers) to make information about the conviction available to the person who was convicted,

(c) to amend the Privacy and Personal Information Protection Act 1998 to enable the regulations to make provision for a public sector agency to be treated as part of another public sector agency, or for a part of a public sector agency to be treated as a separate agency, for the purposes of that Act,

(d) to make amendments in the nature of statute law revision to the Commission for Children and Young People Act 1998 and the Privacy Code of Practice (General) 2003.

The Act currently provides that agencies must have a publication guide that contains information about matters, including the structure and functions of the agency, the kind of information the agency holds and how to access that information. This bill changes the name of the guide from "publication guide" to "agency information guide" to better reflect its content. The bill clarifies certain aspects of the process for applying for access to government information. Item [8] of schedule 1 removes the requirement that the postal address accompanying an application must be an Australian postal address. That will enable people living overseas to make an application under the Act without having to rely on the address of an Australian contact to do so. Item [10] clarifies that any decision by an agency to waive, reduce or refund an application fee does not prevent the application from being valid.

Item [13] clarifies that existing capacity of agencies to require an applicant to provide evidence about the personal factors of an application includes the capacity to require proof of identity when this is relevant to the agency's decision about the application. That is important in situations in which people apply for access to personal information. If the information relates to the applicant there is a public interest in favour of disclosing it to that person. If the information does not relate to the person, privacy considerations mean there is a public interest against one person gaining access to another's personal information. It is important that agencies are able to establish an applicant's identity. Item [19] permits agencies to determine an application by deciding that the information is already available to the applicant because another agency has provided it to him or her. Item [30] clarifies how agencies are to send notices under the Act. That may be done by post or another method agreed upon by the agency and the person in question.

The bill also makes several changes in relation to agencies disclosure logs. A disclosure log contains information about access applications that agencies have granted when the agency considers that information may be of interest to the public. Item [5] clarifies the timing for agencies to place information on their disclosure logs. If no-one objects to information being placed on the disclosure log, the agency can place information on the log when the access application is decided. If there is an objection, there is no requirement for an agency to record information on the log until it has decided that there was no right to object or, if there was a right to object, until review rights have expired. Currently agencies are not required to place personal information about an access applicant on their disclosure log. Item [6] of the bill extends this protection to the personal information of any individual.

Item [14] makes clear that when information affects a third party's interests in certain ways—for example, when the information includes personal or financial information about them—they have a right to object to an agency placing that information on the agency's disclosure log. The bill also clarifies the operation of the provisions in the Act that allow people to seek review of decisions. At present, if an aggrieved person, other than the applicant, wishes to seek a review by the Information Commissioner, an internal review is required beforehand. However, in the case of decisions made by a Minister, a member of a Minister's staff, or an agency's principal officer, internal review is not available. Item [23] clarifies that an internal review is a precondition to third parties seeking review by the Information Commissioner only when internal review is available.

Mr Ryan Park: Come on mate, fire up.

Mr STEPHEN BROMHEAD: Fire up?

The ASSISTANT-SPEAKER (Mr Andrew Fraser): Order! I remind Opposition members that under Standing Order 52 members should not converse or make any other noise or disturbance when a member is speaking. If members wish to have private conversations they should do so outside the Chamber.

Mr STEPHEN BROMHEAD: Earlier the member for Orange, who is a great local member, spoke in debate on the bill. The member had some pertinent things to say about the member for Keira.

Mr Ryan Park: What did he say? I was not here.

Mr STEPHEN BROMHEAD: What I can say is that the constituents of Orange have a great local member who is highly intelligent and knows what he is speaking about.

The ASSISTANT-SPEAKER (Mr Andrew Fraser): Order! The member for Myall Lakes should not provoke interjections from Opposition members. The member will return to the leave of the bill.

Mr STEPHEN BROMHEAD: When a review is not available, people in this position can seek review directly from the Information Commissioner. At present, if a person seeks to have the Information Commissioner review an agency's decision and the commissioner recommends that agency should itself conduct an internal review, the person has to pay a $40 fee for that internal review. Item [25] removes the requirement to pay that fee. This makes effective the free right of review by the Information Commissioner. It is important to have free access without the fee—a fee imposed by Labor when it was in government. The bill also standardises references to the time and updates references to agencies and departments where restructuring has occurred. The Act is due for statutory review as soon as possible after five years from the date of assent, which means as soon as possible after 26 June 2014.

That five-year review is the period in which to consider whether the Act is meeting its policy objectives and whether more significant policy changes are required. That review will require broad consultation and detailed analysis. As the member for Port Stephens, a great local member, said, this is all part of the Government's gaols. Goal 31 is to create better access to online information and to make real-time information about government services available to the public. As was said earlier, this is all part of making New South Wales number one again—after it slipped from that illustrious position which it held 16 years ago to now being about number six in Australia. This Government is determined to make New South Wales number one again. We will have better, more open and transparent government. Opposition members have put their hands in the air; they are defeated and cannot take any more. I commend the bill to the House. Once again, as the great member for Tweed says: Break a leg for Myall Lakes.

Ms TANIA MIHAILUK (Bankstown) [5.51 p.m.]: I will make a brief contribution to debate on the Government Information (Public Access) Amendment Bill 2011. I note at the outset that the Opposition will not oppose this bill. The Opposition supports greater accountability and transparency in the governance of New South Wales. I understand that the bill proposes a series of minor amendments to the Government Information (Public Access) Act 2009. That legislation was introduced by the former Government and enacted to replace the former Freedom of Information Act to improve access to government information. Schedule 1 [1] clarifies that no agency can make open access information available if it in some way constitutes an infringement of copyright.

Schedule 1 [6] clarifies that the personal information of individuals involved in the application is not required in an agency's disclosure log. As such, affected persons are able to object to certain information being included. Schedule 1 [7] amends the requirement to register a government contract valued at $150,000 or more from 60 days to 45 days after the contract becomes effective. Schedule 1 [7] also amends the period for which information must be kept available on the Government Contracts Register from 30 days to 20 working days. I note that this may, in effect, ensure that such information is available for an appropriate period regardless of public holidays or other events. Schedule 1 [10] clarifies arrangements for the non-payment of fees in specific cases such as where a fee is waived or reduced by an agency.

Schedule 1 [12] requires agencies to notify in writing individuals whose information is likely to be included in the agencies disclosure log. Further to this, item [17] requires agencies to inform individuals who have objected to the inclusion of their information on the disclosure log of the outcome of their objection. Schedule 1 [13] clarifies that agencies can seek proof of identification in determining the personal factors that might affect an application, namely, as to whether there might be an overriding public interest against disclosure of information. Items [28] and [29] contain consequential amendments stemming from changes to the allocation of the administration of Acts. Schedule 2 makes subsequent amendments to related legislation as required as a result of the bill. I note once again that the Opposition does not oppose the bill, and I commend it to the House.

Mr GEOFF PROVEST (Tweed—Parliamentary Secretary) [5.54 p.m.]: I will make a brief contribution to debate on the Government Information (Public Access) Amendment Bill 2011. I note comments made by the member for Bankstown in her fine presentation on this important bill. I think members on both sides of the Chamber would strive for open and transparent government. However, on a number of occasions under the previous Government I found it necessary to lodge a freedom of information application. At times that was an arduous task; the information was provided in dribs and drabs, sometimes in code-like language. This is an important process regarding all levels of government and government agencies. The Tweed Shire Council has a large number of freedom of information requests. I assume that many councils across New South Wales have made a number of requests.

The overview of the bill notes that the amendments clarify the timing for the recording of information in the disclosure logs of agencies and so on. The amendments enable agencies to be treated as separate agencies under the Act. A number of members who have spoken in the debate noted the provisions contained in the items of the schedules. I do not intend to mention those again; I expect some members will do so in their contributions. I have passed on to the Minister charged with carriage of the bill a concern about the cost of complying with the provision of the information. Unfortunately, all electorates have certain people who will require and request information on a continuous basis. At times they are not satisfied with the information that is provided.

The Tweed Shire Council also is concerned about the amount of money spent to service requests made under freedom of information legislation as well as under the Act to be amended by this bill. The provisions are subject to ongoing reviews; we have been told the operation of the provisions of this bill will be reviewed in another five years. Like many legislative changes passed by this Parliament, their operation in practice reveals a need for modification or amendment. I notice from today's Business Paper that a number of legislative amendments are proposed. However, there is some concern with the costs imposed particularly on local government. Obviously, I will support this bill and the openness and transparency of the current Government of New South Wales.

Mr RYAN PARK (Keira) [5.58 p.m.]: Believe it or not, for the umpteenth time this week I say that the Opposition supports the Government's proposal. The Opposition does so because it appreciates that the Coalition is recognising good Labor Party reforms, which the Government Information (Public Access) legislation was when introduced by former Premier Nathan Rees in 2009. We appreciate the compliment that the Coalition is paying to the Labor Party by refining what was landmark legislation. I will talk a little about the Government Information (Public Access) Amendment Bill 2011. First, I will refer to what was said by Matthew Moore, one of the Fairfax journalists who looks after the freedom of information rounds. He has been particularly pertinent in his commentary on this matter. On 24 May 2011 Matthew Moore—somewhat of a media expert in relation to freedom of information—said about the O'Farrell Government:

In the first big test of his government's transparency, the Premier, Barry O'Farrell, has imposed a blanket ban on the release of all public service briefs prepared for his administration.

I am happy to table this document. The problem is that nine months on the Government is saying it is all about transparency and it is all about the Government Information (Public Access) Act. But it is not really because Matthew Moore demonstrates very clearly that that was not the case. I state at the outset that those on this side of the House always support transparency in government. As the member for Liverpool and the member for Bankstown have articulated clearly, it is those on this side of the House who introduced this legislation in 2009. Those on the other side of the House are now making some very minor amendments to the legislation.

Because we are a cooperative, thoughtful and productive Opposition we are happy to continue to support freedom of information and access by people to this sort of information. I congratulate the former Labor Government on introducing this legislation in 2009 in what was a landmark reform in relation to the community accessing information. I thank the Labor Government, and I acknowledge that Mr Assistant-Speaker also thanked the Labor Government when endorsing this bill. I thank my friends in the Government for being so supportive and I hope the Government acknowledges that in the weeks and months to come.

Mrs ROZA SAGE (Blue Mountains) [6.01 p.m.]: That was some comedy act. I will contribute briefly to debate on the Government Information (Public Access) Amendment Bill 2011. This bill seeks to make a number of minor and technical, but important, amendments to the Government Information (Public Access) Act 2009. These amendments will provide further transparency of and accessibility to public records, something that the O'Farrell Government has committed to and is doing. This information should be made accessible but should not impinge on individual privacy. I will address some of the amendments relating to privacy considerations that will be affected.

In many areas of life proof of identity is essential to obtain access to services. When opening a bank account or applying for a passport the individual is required to show proof of identity—the 100-point check that most people will be familiar with. This is just as important, if not more important, when considering the personal factors of an application. There are many examples where this could be very important, for example, in matters of family law disputes or if someone is applying for the records about a particular person that are held by the Department of Family and Communities. This information often is very sensitive and private. A government agency should not give out personal information until it has determined that the person who wants access to the information is the person to whom it relates. If this information relates to an individual wanting to access his or her personal information the application usually will be granted.

For many reasons an individual is entitled to know the content and extent of information the Government holds about that person. Schedule 1 item [13] clarifies section 55 of the Act to make sure that the Act functions as it was intended and that government agencies are clear about their guidelines. The bill also amends the legislation to allow a person to access his or her own spent convictions. Individuals may have made bad decisions and poor choices in their early years and incurred the wrath of the law. But as they have matured they may have spent a significant amount of time without committing further crimes and turned over a new leaf. The law currently protects people in this situation by making it an offence to disclose information about spent convictions without lawful authority by others.

However, the law does not allow those who originally incurred convictions to access their own record of spent convictions. When the State holds such information about an individual that individual should be entitled to access that information. This amendment will change the law to allow that to happen. Items [5] and [6] relate to timing and information in the disclosure logs. Agencies are currently not required to place personal information about an access applicant on their disclosure log. This bill will extend this protection to the personal information of an individual. In today's society many people are worried about the type and scope of information that government agencies hold about them: they fear Big Brother intrusions. This bill will help to assuage those fears to some extent by making access to that information more accountable and transparent. I commend this bill to the House.

Mr NICK LALICH (Cabramatta) [6.05 p.m.]: The objects of the Government Information (Public Access) Amendment Bill 2011 are to amend the Government Information (Public Access) Act 2009 to clarify the timing for the recording of information in the disclosure logs of agencies and what can be included in them, and to enable affected persons who are not access applicants to object to certain information; to enable parts of agencies to be treated as separate agencies for the purposes of the Act; to confirm that access to information is provided in a manner that gives regard to copyright issues; and to enable an agency to refuse to provide access to government information if the access applicant has already been provided with the information.

Further objects of the bill are to remove the current requirement to pay a fee for an internal review by an agency following a recommendation by the Information Commissioner; to confirm that an agency may require proof of identity from an applicant before providing access if the application involves certain personal factors; to provide that there is no conclusive presumption of overriding public interest against disclosure of a spent conviction to the person convicted; to clarify when an agency is required to consider whether to waive legal professional privilege in connection with an access application; and to make certain other minor amendments in the nature of statute law revision and amendments that provide for savings and transitional matters.

It is worth noting that the former Nathan Rees Labor Government further opened up laws formerly known to the wider public under the Freedom of Information Act. A State Labor Government decided that the onus should not be on the applicant to explain why he or she is applying for access to information but on the government department that is willing to release any relevant information should it not conflict with the greater good of governing. A State Labor Government decided that the best way to govern is honestly and openly. That is where the Government Information (Public Access) Act originally came from. This bill makes reasonable and minor amendments to the existing legislation—Labor legislation that was enacted.

We are happy with the amendment and we thank the Coalition for bringing our legislation forward to improve it in a minor way. Matters such as enabling parts of agencies to be considered separate agencies for the purpose of the Act should have the effect of creating less confusion. Confirming that access to information is provided in a manner that takes into account copyright issues is reasonable and self-explanatory. Confirming that an agency may require proof of identity from an applicant before providing access if the application involves certain personal factors obviously is a privacy protection issue and it would not be a favourable outcome if government departments were releasing all matter of personal information without checking the applicant's proof of identity first. Confirming that an agency may require proof of identity from an applicant before providing access if the application involves certain personal factors obviously is a privacy protection issue.

It would not be a favourable outcome if government departments released all manner of personal information without first checking the applicant's proof of identity. The amendments in this bill also remove the current requirement to pay a fee for an internal review by an agency following a recommendation by the Information Commissioner. This legislation also amends the Criminal Records Act 1991 so that it is not an offence for a public authority or other government agency or its authorised officers that have a record of a spent conviction to make information about the conviction available to the person who was convicted.

This bill amends the Privacy and Personal Information Protection Act 1998 so that a public sector agency may be treated as part of another public sector agency, or for a part of a public sector agency to be treated as a separate agency for the purposes of that Act. As I stated earlier, the Government Information (Public Access) Act was first introduced by a Labor Government with the goal of offering more transparency and increased openness when it comes to the business of government. Labor members have no problem with the public knowing exactly what the Government is doing. We were open and honest in government and we are open and honest now, unlike those who sit opposite and who operate in a shroud of secrecy and concealment. The Opposition does not oppose this bill.

Debate adjourned on motion by Mr Mark Speakman and set down as an order of the day for a later hour.