Parliamentary Speeches
Government Information - Public Access (23/06/2009)
Mr DONALD PAGE (Ballina) [5.37 p.m.]: As the Leader of the Opposition said, we will not oppose the Government Information (Public Access) Bill 2009 and cognate bills. However, the Opposition has a number of concerns. My concern relates to clause 14 and related clauses in schedule 1 of the principal bill. The promise, as stated by Premier Rees in his agreement in principle speech on 17 June 2009, is:
The new legislation makes clear that an agency should release the requested information unless there is an overriding public interest against disclosure. This is supported by an explicit presumption in favour of disclosure.
However, the reality is as stated a few lines later, where he says:
The new legislation specifies some information for which it is conclusively presumed— and I emphasise "conclusively presumed"— that there is an overriding public interest against disclosure.
To those not skilled in the law the term "conclusive presumption" may seem quite innocuous. However, this term rings alarm bells. In the context of the Government Information (Public Access) Bill 2009 it means, quite simply, that any information which is specified to come within the scope of the conclusive presumption is not just exempt in the sense that that term is used in the current Freedom of Information Act but that information is totally beyond reach. A decision by the Government that information to which access is being sought falls within the scope of the conclusive presumption means that an application for access to that information must not only fail but also that decision is effectively unreviewable by the Administrative Decisions Tribunal.
Such a decision, in effect, has the force of a ministerial certificate. This can be contrasted to the situation under the current Freedom of Information Act 1989. If an agency determines that a document is an "exempt document" in accordance with schedule 1 of that Act, pursuant to section 25 (1) (a) it may refuse access to the document. But the decision by the agency to refuse access to the document can be made the subject of a review by the Administrative Decisions Tribunal. If the tribunal decides that the "correct and preferable decision" is to release the document notwithstanding that it is an exempt document, the tribunal has the power to order its release. Clause 14 (1) of the Government Information Bill closes off any possibility of determination by the tribunal as to whether it is the "correct and preferable decision" to release any information which is listed in schedule 1 of the bill.
Amongst the matters the Rees Government has slipped into schedule 1—contrary to strong recommendations made by the New South Wales Ombudsman—is "information that would be privileged from production in legal proceedings on the ground of client legal privilege". Documents that are the subject of client legal privilege fall within clause 10 of schedule 1 of the current Freedom of Information Act. They are "exempt documents", and an agency may then refuse to provide access to such documents. Such a decision is, however, currently reviewable by the Administrative Decisions Tribunal. The tribunal is obliged to order the release of such a document—over the objection of the agency if necessary—if it decides that it is the "correct and preferable decision" to do so.
The Ombudsman has stated on numerous occasions that government agencies have hidden behind the provisions of clause 10 of schedule 1 of the Freedom of Information Act to prevent information which it is in the public interest to release from being released. In his review of the Freedom of Information Act 1989 the Ombudsman stated at page 57, under the heading "Busting the Myths", in relation to claims for legal professional privilege:
Legal professional privilege is an important legal principle, but it is not an inalienable right. Many of those who have made submissions to this review reacted very strongly to the suggestion that a public interest component be included when an agency is considering refusing access to documents on the grounds of legal professional privilege. They suggested privilege is claimed as a matter of course, seemingly without consideration of its appropriateness. Only one submission recognised that an agency can choose to waive privilege, even where the documents legitimately attract the protection. We have published guidance around some of the situations where it may be appropriate for an agency to waive privilege
Rather than taking heed of these comments of the Ombudsman, the Rees Government has brought down its Iron Curtain. In the future, a decision by an agency to refuse to provide access to a document that is subject to legal professional privilege will be unchallengeable. Rees's brave new world of "transparency and integrity of Government in New South Wales" is actually a step backwards in time, because of clause 14, related clauses in schedule 1, and the argument I have just outlined.
