Northern Territory Second Reading Speeches
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INFORMATION BILL 2002
(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)
Madam Speaker, I move that the bills be now read a second time.
The government is pleased to put in place another pillar of our good government strategy, the Information Bill. Good government requires openness and accountability. It requires that democratic institutions are protected and not undermined. It requires that the public has continuing confidence in the operation of government, confidence which is supported by the ability to scrutinise and participate in decision-making. This Information Bill, although a vital component, is just one part of a broader strategy that will ensure accurate accounting and financial management standards, reasoned decision making and access to justice and information. Collectively, these reforms will make our public institutions work more effectively.
The purpose of the Information Bill is to provide the public with a right of access to information held by the public sector and for the correction of personal information. It will protect the privacy of personal information held by the public sector by providing for the responsible collection and handling of that information. It will promote appropriate record keeping and record management in the public sector, including the management of the Territory archives.
A key component of the Information Bill, and the one that has attracted most public attention, is the access or freedom of information (FOI) regime. Although people generally think of FOI in terms of the federal and state legislation that enacts these schemes, the idea that the public should have access to government information has legal precedent earlier than the enactment of various freedom of information acts. Under certain circumstances, the law of equity has made government information public for a number of decades. The courts have recognised that:
… that governments act, or at all events are required to act, in the public interest. Information is held, received and imparted by government, their departments and agencies, to further public interest.
This passage recognises the way a representative democracy works. An open government represents the people and is accountable to them. An open attitude and processes maintain this accountability. However, court processes to enforce access and pursue accountability are lengthy, expensive and frustrating. FOI legislation was developed to provide the public with meaningful access rights. Our new statutory scheme will finally allow Territorians the same, or even better, access rights as the rest of the country.
Freedom of information legislation was introduced to the Australian people in 1982, when the Commonwealth passed the first Freedom of Information Act. The states soon followed. It has, however, taken a long time for freedom of information to reach the Northern Territory. Some 20 years after that first freedom of information legislation in Australia, I am happy to play this part in bringing the Northern Territory in line with all other jurisdictions in this regard. The draft Information Bill was tabled in the Legislative Assembly for public comment on 23 October 2001. The process of consultation has taken into account the concerns of all stakeholders, with both the public and private sectors making valuable contributions to the final form of this act. Interest in this reform has come from all over Australia. Fifty-four formal submissions were received during the extended consultation period. Many of the submissions received were very detailed. A program of public consultation provided an opportunity to inform both the public sector and the general public as to the details of the legislation, and hear first-hand their views of the first draft bill.
I extend my thanks to the people and organisations that took the time to make a contribution and have helped shape the final detail of this legislation. I would particularly like to acknowledge the contribution of the public debate made locally by the Friends of Freedom of Information Group. This community group raised funds to hold a public seminar, and with the contribution of Mr Rick Snell, Editor of the Freedom of Information Review, have made valuable suggestions. I might say that Mr Rick Snell’s first reaction to the final form of the bill has been very positive and very encouraging to this government.
Most people agree that freedom of information is a good idea. Beyond that, people quickly realise that the devil is in the detail when it comes to implementing a reform such as this. It is for this reason that we decided to put before the public a draft bill, rather than a series of broad policy statements. This enabled the community to consider the detail and make constructive comments. I would have to say that this approach has been a huge success. It is not common that the community is given the opportunity to consider the detail of how an act will impact on them, suggest modifications, and correct technical errors. The degree of interest in this reform has been staggering. The comment most frequently heard was that the reform was long overdue. The introduction of the freedom of information legislation was a core promise of the new government, and one that today we a honoring. The members on the government benches are pleased to be delivering on this important issue.
I turn now to the detail of the Information Bill itself. The bill provides for FOI; that is, it creates a legal right of access to government information and personal information held by government. A feature of that right is the ability to request correction of personal information where a member of the public believes that the information regarding them is incorrect, inaccurate or out of date. Any legal right is, of course, seldom absolute because it must be balanced against the rights and interests of other people. The right of access is no different. The Information Bill is intended to strike a balance between the competing interests by giving members of the Territory community a right of access to information held by the government. The right will be limited only by the circumstances where the disclosure of particular information would be contrary to the public interest because it would have a prejudicial effect on essential public interests, or on the private or business interests of other persons.
The bill will apply to government information that was created up to 10 years before commencement, and to personal information created at any time. This is an increase in application from the draft bill and is made in response to submissions. In setting these parameters we have aimed to balance access against recognition that it may be difficult administratively for public sector organisations to locate and provide older information. However, to provide even greater access within these constraints, after two years of operation it will be possible for information created or received more than 10 years previously to be accessed, provided that the Information Commissioner has determined that it belongs to a class of information in which a public interest in access might reside.
Public sector organisations are encouraged under the terms of the bill to provide as much information to the public as they can. Much information is already made publicly available through numerous government publications and websites. FOI will not replace these ready sources of information. Public sector organisations will be required to deal with access applications as promptly and as efficiently, and as fairly and openly, as reasonably possible. Strict time limitations are imposed for dealing with access applications. The decisions that may be taken in respect of an application are clearly spelled out. These include providing access in whole or in part and providing edited copies of information. Applications may only be refused where the information falls under one of the public interest exemptions identified under Part 4 of the bill, or where providing access would unreasonably interfere with the operations of the organisation. The latter provision is aimed particularly to address concerns that applications for extensive documentation may cause disruption to the effective operation of an agency. However, the bill encourages dialogue between the agency and an applicant. A decision to refuse access on this basis cannot be taken unless the parties are unable to agree on an effective variation of the request.
The exemptions to the right of access provided in the bill are all public interest exemptions. These provisions balance the right of access with the need to protect particular public and private interests. For example, ensuring that access to information does not unreasonably interfere with another person’s privacy. The exemptions are not broadly based as was suggested in some submissions, there being very few ‘class exemptions’ within the legislation, that is an exemption for information based on the class of information to which it belongs.
Only two class exemptions exist in the act. The first is for Cabinet and Executive Council information. This class exemption is based on the need to preserve collective ministerial responsibility. It is an exception that exists in all Australian jurisdictions and is a class exemption that has been accepted by the Australian Law Reform Commission as justifiable.
In addition, the ‘secrecy provision’ exemption is a class exemption. That is, where the release of information is prohibited by another act, it is automatically exempt from disclosure without any further identification of harm that flows from the case at hand. The legislative provision of the other act that prohibits disclosure is effectively taken to have already identified harm that might result from that disclosure.
However, in order to reduce the limitation provided by such provisions on access to information, this clause contains a sunset provision. In the draft bill this was five years. However, in line with public submissions that this was too lengthy a time to review and consider the provisions that justify restriction on disclosure, the sunset period has been reduced to three years. This will allow a period of review to consider what prohibitions provided by other acts may continue to be justified as requiring exemption from the Information Bill access provisions.
All other exemptions specify ‘harm’ tests of disclosure, including the other absolute exemptions of Part 4, Division 2. These have been placed within a category of absolute exemption because of the identifiable and clear harms that would arise from disclosure. They are not therefore ‘class’ exemptions because they must meet unidentified harm tests.
These two further categories of absolute exemptions are security and law enforcement, and the preservation of the system of justice. For example, information that would constitute a contempt of court or parliament, or a breach of legal professional privilege, or that would prejudice the right of a person to a fair trial are all categories in the absolutely exempt information. Information that would endanger the life and safety of a person is automatically exempt.
In order to meet this absolute exemption, the information must be identified as having the ‘harm’ effect identified. But in these cases there is no need to apply individually an additional public interest test to determine whether disclosure would not be in the public interest because the harms that arise from such disclosure are such that disclosure is conclusively not in the public interest. How could it be in the public interest to endanger a person’s life or commit a contempt of court?
The harm test of disclosure is significant and applied to all exemptions in Part 4, Division 3, the particular case exemptions as well as the to the absolute exemptions that I have mentioned. The effect of these harm tests is that makes it more difficult for a matter to be considered to be prima facie in the category of an exempt information. There are various harm tests in the bill. For example, if disclosure would prejudice specified interests such as police investigations, the right of a person to a fair trial or intergovernmental relations. In other cases, information only falls within the exemption provisions if its disclosure would have a substantial adverse affect on other specified interests such as management of a public sector organisation or the financial or property interests of the Territory.
Prima facie exemption is identified where some interests might be endangered. For example, a person’s life or safety, as I’ve mentioned. A commercial undertaking is protected where it might be exposed unreasonably to disadvantage. These provisions ensure that the decision maker’s mind is properly focussed on the effect of disclosure rather than on the class of information at hand. Consequently, whilst the casual reader may consider that there are extensive provisions dealing with exemptions, the reality is that the detail of these provisions is necessary and directed at ensuring that exemptions are focussed on an application consistent only with the potential harm identified from disclosure.
In addition, some harms are identified as not providing sufficient reason for exemption. For example, though matters that would prejudice a police investigation are exempt, the exemption does not apply where the information would disclose that the investigation itself was unlawful. The public interest test applied to a particular case of exemptions in Part 4 Division 3 prevents any exemption in that division from being treated as a class exemption.
The majority of exemptions are contained within Division 3 where the decision maker is required to consider in each individual case whether it is not in the public interest to disclose the information. This is a more liberal application of the public interest test than in some jurisdictions which require a showing that disclosure is in the public interest. Under the Information Bill, this information only will be exempt if it can be shown in a particular case that it is not in the public interest to disclose the information.
Our application of the public interest test is consistent with the idea that government should be open and accountable, not one where an applicant must satisfy the need for the information to be released. Some submissions received requested that the public interest test be defined. However, the absence of a definition is by design and not by neglect. Public interest tests are a feature of a number of areas of law - for example defamation law, competition policy and industrial relations law. Contempt law is a good example of a public interest defence. For example in Hinch and Macquarie Broadcasting Holdings Limited v The Attorney-General for the State of Victoria, a case involving well known broadcaster Derryn Hinch, it was necessary for the High Court to balance the public interest in the discussion of public affairs with the public interest in ensuring that a person received a fair trial. The courts and legislatures have been careful not to enter into attempts to define what is meant by ‘the public interest’ because the concept by necessity will be different in particular contexts and at particular times.
The High Court in Bellino v Australian Broadcasting Corporation, a defamation case, observed that:
The privilege…is intended to strike the appropriate balance between protection of private reputation on the one hand and public utility or public welfare on the other. The key concept in the striking of this balance is ‘subject of public interest’. To ensure that the balance is rightly struck in the unlimited variety of cases that may arise, the key concept must be broad and flexible. Thereby the judge is enable to evaluate, in the light of contemporary conditions, a plea that a defamatory matter has been published in the discharge of some legal, social or moral duty.
The Australian Law Reform Commission, in its report, Open Government: A Review of the Federal Freedom of Information Act 1982, commented that the public interest was an amorphous concept which is not defined in the federal FOI Act or any other statute and which depends on the application of subjective rather than ascertainable criterion. What is clear from the judicial decisions, both in Australia and elsewhere, is that it is not something that is merely an individual interest or that the public may be interested in, but that it is something that is of serious concern or benefit to the public or in the interest of the public. By necessity then, application of a public interest test will require consideration of factors that are relevant to the specific case.
The bill however, does provide some indications as to the public interest where possible. Some factors are identified as not being relevant factors to determining the public interest, such as embarrassment to the government or the fact that information might be misunderstood.. The deliberative process exemption has been altered from the provision that was contained in the draft Information Bill to identify factors that are well established in administrative law and may be taken into account in determining the public interest in such documents. The addition of these factors will assist both the public and the public sector to determine the application of this provision.
In addition, it will be a primary role of the Information Commissioner to develop and issue guidelines to public sector organisations about freedom of information, correction of personal information and protection of privacy. These guidelines will obviously include assistance on how to apply the public interest test.
One of the contentious issues that emerged from the submissions was the provision in the draft Information Bill for exemption certificates. In the draft bill, exemption certificates were able to be issued for Cabinet and Executive Council information, security and law enforcement information, privacy and cultural information and for deliberative process information. Certificates for the first three categories were to be issued by the CEO of the Department of the Chief Minister, while those for deliberative process information were to be issued by the relevant minister with a power of delegation to the CEO’s of the agency in question.
Exemption certificates exist in all FOI statutes. They are to be used sparingly for sensitive information that may occasionally warrant removal from the ordinary appeal processes of the legislation. An exemption certificate acts as conclusive evidence that the information is exempt information. It must however, meet the tests for that exemption, that is, not a power to remove information that does not otherwise meet the exemption requirements of the bill. It is a power to declare that the information meets these requirements and that, in the case at hand, the sensitive nature of the information warrants what ought to be regarded as an unusual step of removing it from the ordinary review and appeal processes.
A number of submissions were concerned that the deliberative process exemption certificate power was one that could provide potential for abuse. This was not only because of the presence of the power itself but also because it could be delegated to individual CEOs to determine the status of information within their own agency. The power to issue an exemption certificate for deliberative process information has been removed from the Information Bill. An exemption certificate can now be issued only for Cabinet and Executive Council information, security and law enforcement information and privacy and cultural information. The Chief Minister will be the only person with power to issue an exemption certificate.
An exemption certificate may only be issued for two years, though there is power to renew that certificate. This limitation on the span of operation reflects that public interest may have altered over a time period, and that the original justification for issue of the certificate may no longer exist.
In addition to the alteration to the exemption certificate provisions, it may be noted that the bill provides that the Information Commissioner will, in his or her annual report that is laid before the Legislative Assembly, specify the number of exemption certificates that have been issued in the previous year. Parliamentary scrutiny can therefore be applied to the exercise of this power.
These changes, that reflect public comment on the draft bill, should raise confidence that the government has been prepared to listen to opinion and dispel any notion that we have intended to create a black hole for information to disappear into. The Information Bill furthers the right to access information by enacting review processes for decisions made under the bill. Where a person is not satisfied with the decision of a public sector organisation, either regarding access to information or the request to correct their personal information, an internal review of the decision can be requested. Strict guidelines apply to the internal review.
I have already mentioned the Information Commissioner. This office is a significant aspect of the bill. The bill provides for the creation of an independent statutory officer of the Information Commissioner. The commissioner will have the role of both actively promoting the principles of FOI and privacy, and with dealing with appeals from decisions from public sector organisations over FOI requests, and complaints of interference with privacy. This statutory appointment has been designed to put decisions on access to the information and complaints as to privacy interference at arms length from government. We do not want an information regime that is political, biased, and expensive. This model addresses all of these concerns. The commissioner will have the power to accept complaints arising from the access applications, and allegations of interference with privacy. This includes appeals by third parties whose information may be released to another as part of an access application - a provision that is usually referred to as ‘reverse FOI’. The commissioner will be able to investigate complaints, attempt mediation of complaints, and where that fails, conduct a hearing into complaints.
The Information Commissioner model has been recognised as a superior model to that of judicial review by tribunal or court, offering a more accessible, informal, less technical and expeditious form of review. Mediation is made a prerequisite to any hearing under the bill, as part of this government’s commitment to pursue forms of alternative dispute resolution that will produce positive outcomes for all parties. An appeal to the Supreme Court from a decision of the Information Commissioner will lie only on a question of law.
The Health and Community Services Complaint Amendment Bill 2002, and the Ombudsman (Northern Territory) Amendment Bill 2002 are amendments to be made consequential to the Information Bill, to allow for the referral of complaints between the Ombudsman, the Health and Community Services Complaints Commissioner and the Information Commissioner, to ensure that a complaint is dealt with by the most appropriate office relevant to the complaint.
So far, I have focussed only on the freedom of information aspects of the Information Bill. Certainly, that was the major focus also of the submissions that were received from the public consultation phase. The bill is, though, more comprehensive in its regulation of government information and personal information held by government. The bill will also enact provisions for the protection of privacy, and will establish records and archives management regime within government. The bill is unique in Australia in its combination of all three aspects of information regulation, overcoming the inconsistencies and conflicts that arise when these matters are dealt with through separate pieces of legislation.
The interrelationship and links between freedom of information and privacy are significant. The clearest of these is that disclosure of an individual’s personal information to another person has the potential to invade that person’s privacy. Consequently, the Information Bill includes as an exemption to the right of access, the disclosure of information that would be unreasonable interference with a person’s privacy. A unique aspect of this bill is that it recognises that there are instances of communal privacy that arise with respect with cultural information. Although privacy is thought to be something related to the individual, this bill recognises that Aboriginal citizens may collectively have a privacy interest in sacred sites or traditions. This interest is given the same protection as personal privacy.
Unlike some overseas jurisdictions, Australia provides no constitutional guarantees for the privacy interests of individuals. In 1988, with increasing concerns as to privacy issues, the Commonwealth government enacted the Privacy Act 1988, which lays down strict privacy safeguards which Commonwealth and ACT government agencies must observe when collecting, storing, using and disclosing personal information. In December 2001, the Privacy Act was extended and now gives new rights in relation to how personal information is handled by many private sector organisations. The new federal privacy rights come in the form of the 10 National Privacy Principles, the NPPs. These set the standards organisations are required to observe in collecting, storing, using, disclosing, protecting and transferring personal information.
The Northern Territory Information Bill will complement the federal privacy legislation. This is done by requiring that public sector organisations must comply with the Information Privacy Principles, the IPPs, in collecting and handling personal information. The IPPs are scheduled to the Information Bill and are drawn from the national privacy principles of the federal legislation. The IPPs cover the following matters:
· IPP1 is a collection principle. It describes what an organisation should do when collecting personal information.
· IPP2 outlines how organisations can use and disclose personal information.
· IPP3, data quality, and IPP4, data security, set the standards that organisations must meet for the accuracy, currency, completeness and security of personal information.
· IPP5 requires organisations to be open about how they handle personal information.
· IPP6 provides for access and correction rights giving a general right of access to personal information and the right to have that information corrected if it is inaccurate, incomplete or out of date. This principle corresponds to the access provisions in the FOI component of the Information Bill.
· IPP7 identifiers says that general government identifiers can only be used for the purposes for which they were issued.
· IPP8 provides that, where possible, organisations must provide the opportunity for a person to conduct a transaction without identifying themselves.
· IPP9 transborder data flows - this principle outlines privacy protections that apply to the transfer of personal information outside the Territory.
· IPP10 deals with sensitive information. Generally, consent is required from an individual when an organisation collects sensitive information such as health information, information about racial or ethnic origins, political opinions, religious beliefs or criminal record. Sensitive information is a subset of personal information and special protection applies to this information.
In order to ensure both flexibility and the need in some cases for more specific application of these principles, public sector organisations may apply to have a code of practice approved that specifies the manner of application and compliance with the IPPs. Limited modification of the IPPs will be allowed in a code, but only where an organisation is not otherwise capable of compliance. Codes must be scrutinised and recommended by the Information Committee and may then be approved by the Administrator on submission by the relevant minister.
The Information Commissioner also has the power to authorise a departure from the IPPs which relate to the collection, use and disclosure and sensitive information where the commissioner is satisfied that the public interest in collection, use or disclosure outweighs to a substantial degree an interference with a person’s privacy and that the benefits to be gained also outweighs that interference.
The Information Commissioner will also have a regulatory role to play in privacy protection having the power to order records of public sector organisations to determine the extent to which these organisations are complying with the privacy provisions of the act. The IPPs may be enforced by a compliance notice issued by the Information Commissioner in specific circumstances where it appears to the commissioner that an organisation is failing to comply with the IPPs.
The Information Commissioner also acts as the investigation and complaints body for persons who have complaints that there has been an interference with their privacy. Similar processes to those already mentioned with respect to the FOI apply to privacy complaints, although on the conclusion of a hearing, the commissioner has the additional power to award damages not exceeding $60 000 where actual loss or damage has been suffered by a complainant as a result of a privacy interference.
Last but certainly not the least significant of the matters to be enacted by the Information Bill is the records and archives component of the bill contained in Part 9. A ‘record’ is defined in the Information Bill to mean recorded information in any form, including data in the computer system, required to be kept by a public sector organisation as evidence of the activities or operation of the organisation. While not all documents in the possession of an agency are records in this technical sense, most of the documents sought under FOI provisions will be. Consequently, good record keeping and records management are of crucial importance to the success of the access provisions. Without sound and solid record keeping systems, the right of access provided will be unenforceable in practice. This is one of the problems that needed to be faced in determining the degree of retrospectivity of the legislation.
Whilst unlimited retrospectivity may have been philosophically desirable, the reality is that record keeping practices have not always been such that records can be reliably identified and located. There will be, no doubt, cases where agencies will be unable to locate records efficiently, if at all, and records that ought to have been retained may have been destroyed. Part 9 of this bill will turn this situation around so that we can be confident in the future of sound record keeping practices and that will give full effect to the other provisions of the legislation.
Statutory regulation of record keeping is also vital to successful protection of privacy because ineffective records management and storage may result in inadvertent and improper disclosure of personal information.
Statutory regulation will be introduced by the Information Bill by providing for the obligations of public sector organisations to protect and manage their records. An offence of mishandling records is created. The CEO of each organisation will have the duty to ensure that their organisation is complying with Part 9.
Regulation is to be achieved through the preparation and approval of standards by the Archives Service. Standards are able to address amongst others such matters as creation, maintenance and security of records, the appraisal of records to determine their ongoing value, and the disposal of records with no archival value.
Consultation with public sector organisations will occur as part of the standard setting exercise. Standards will be reviewed every three years to ensure that they are current and relevant to the activities of an organisation.
The Information Bill also provides for management of archives including the determination of the open access period for archives which will ordinarily be 30 years unless public interest dictates it should remain closed.
As with other provisions, the bill addresses the link between record and archives management and privacy. Records must comply with information privacy principles. However, archives are our source of historical record of government and there is a strong public interest in maintaining those records and providing the public with an unfettered right of access to them.
Generally, archives are made available to the public 30 years after their creation. Archive records will obviously sometimes include personal information. If archives were to be subject to rigorous application of the privacy principles, any sense of public access to them would be defeated. In this case, the bill recognises that the public interest in access to historical records outweighs privacy interests that might arise. This is both because of the time that has elapsed between the creation and release and the essential public interest in historical records of both government and society.
The costs of access to information was raised as a matter of concern in a number of public submissions. The thrust of these submissions was that in some jurisdictions, costs of access were perceived as a de facto means of limiting peoples ability to access information. I wish to make clear that there is no intention of imposing costs that will be prohibitive of access. However, the reality is that these schemes can be costly both for public sector time and its resources and it is not unreasonable to impose some cost recovery.
Costs and charges will be made by regulation and these will be prepared prior to the passage of the bill so they can be considered in debate. I point out that the bill is quite specific with regard to costs. Clause 157 provides that fees are to be reasonable and that no fee is to be charged for time spent in locating information that has been misplaced.
The bill also provides for a waiver of fees where the circumstances of the applicant, including their lack of personal financial resources and their indigence make waiver or reduction of the fee appropriate. A complaint may be made about the fee to the Information Commissioner who likewise has the power to waive or reduce a fee.
It is necessary for this legislation to be phased in. As we provided in the draft Information Bill, review of decisions and complaints to the Information Commissioner will not be allowed for the first 12 months of operation of the legislation. This will allow for a period where the public sector can become fully conversant with the regime and allow the Information Commissioner to fulfill the task of providing advice and training to public sector organisations on freedom of information and privacy components of this bill. This orderly phase in of the legislation will, in the long term, be beneficial to all concerned.
While this government’s strongest desire is for the bill to commence on 1 January 2003, the bill has being structured to allow for the final commencement date to be fixed by the Administrator. This allows the commencement date to be determined on the advice of the person appointed as Information Commissioner. In any event, the bill is to commence no later than 1 July 2003.
Madam Speaker, to quote from one of the submissions on the draft information bill from a senior expert in the field of freedom of information, Mr Rick Snell: ‘In every jurisdiction it is the commitment, professionalism and support for the legislation by FOI officers which seems to be the critical ingredient’. I am confident that with the guidance of the Information Commissioner and the opportunity for a staged introduction, our own public sector employees will be able to provide this critical ingredient for the success of the legislation, and legislation which breaks new ground in the public sector for the Northern Territory.
Madam Speaker, I commend the bills to honourable members.
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