CIVIL LIABILITY (DISCLOSURE OF INFORMATION) AMENDMENT BILL

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:44): I rise to speak on the Civil Liability (Disclosure of Information) Amendment Bill 2014 and indicate that I will be the lead and possibly the only speaker on the bill.

The history of this matter I think we need to place on the record. A bill in similar terms was introduced in late 2013, but it lapsed, obviously, as parliament was ultimately prorogued and we had the election and the like. Accordingly, we are back here again with this bill that was introduced by the Attorney on 18 June this year. The genesis of the purpose of the bill, as outlined by the government, arose when the Premier announced in September last year that the government was going to be open and transparent and proactive, in particular, in releasing commonly requested freedom of information items and placing that information on departmental websites.

This was going to be the launch of a new era of transparency. Possibly, the government felt that there had been an unnecessary amount of time spent on processing freedom of information applications on what reasonably should be available to the public to examine and that process should not be taking up the time of freedom of information officers. At that time, the government issued a circular through the Department of the Premier and Cabinet providing for the disclosure of information and listing a number of areas of documentation that would be released.

This was to include details of credit card expenditure for all cards held by ministers, ministerial staff and chief executives, and details of ministers' overseas travel arrangements. As the Deputy Speaker would know, members of course have an obligation to provide a report to the parliament, to the Speaker, which is kept in the registered list of reports on the expenditure of their preapproved travel arrangements, but ministers do not have the same obligation to register the details of their trips. It is fair to say that, when the annual reports of departments are ultimately published, there is provision for details of overseas travel, and the report might identify in the list of travel within a department when ministers were overseas. That is the extent to which it had previously been published as a matter of course; so this was another important area.

It also included details of costs relating to mobile phones held by ministers, ministerial staff and chief executives; details of expenditure relating to ministers hosting and attending functions, as well as ministerial staff and chief executives; details of consultants engaged and the cost to the agency; agency gift registers; details regarding procurement with departments; and a list of capital works projects, including a description and expenditure. This was the day that the Premier ushered in a new era of transparency, and these guidelines were distributed for the departments to implement.

At the time, the government claimed that there was a resistance from public servants to publish material in the fear that they might be sued, that they might be subject to liability. As members would be aware, if the material is published pursuant to an application for freedom of information, there is provision under section 50 of the Freedom of Information Act which gives protection to the Crown—which, of course, covers public servants—by giving them immunity from civil liability for defamation and/or breach of confidence in respect of the granting of access to a document under the act.

In other words, if material is released pursuant to a freedom of information application and the information contained in that document includes material that records some defamatory statement against a party, then that party is not able to sue the public servant, and they are given protection by virtue of this section of the act. Members would be aware that the Civil Liability Act sets out the rules that apply to those who are subject to having civil claims against them and the regime operates exemptions and the like. In any event, under that act, there was protection.

The government's claim was that, outside of that process, the release of information without a freedom of information application before them—in effect, in response to the Premier's request in his circular that certain information be presented and put on the website—had somehow or other elicited some fear or concern by public servants that they might be sued because they did not have this umbrella of protection.

There are two things about that. One is, notwithstanding this apparent fear, the material that I have read out that is the subject of this circular from the Premier's department has routinely now been published on a website and is available publicly. Notwithstanding the alleged fear of apparently multiple public servants, this guideline has still been followed and in fact the material has been provided.

It seems a little concerning to me. If this fear was such as to impress upon the AttorneyGeneral the need to come to this parliament and provide protection under this act, by creating this further exemption or further protection under the Civil Liability Act to provide for these circumstances, then why is that directive still out there, why is it being required to be adhered to and why have we not heard screaming from the rooftop from the public servants and/or their representatives or the heads of department who do not want their staff to be at risk in these circumstances?

I will suggest to you a reason why and that is that there has not been any wholesale complaint about this and that, if there has been some complaint, it has been so minimal that this aspect of, 'I don't want to comply with a circular issued by the Premier's department because I'm worried that I might be sued,' is in fact really covering a different reason. We get some insight into this when we view the Ombudsman's report and in his audit of the Freedom of Information Act which he has tabled in the parliament this year. Obviously most of his report has been in respect of the events surrounding and the operation of the Freedom of Information Act itself.

As members would know, he has some significant things to say in his report and a number of recommendations. In short, he was scathing of what he described as ministerial interference in respect of the freedom of information process and numerous other things. Today is not the day to go through those. The government say that they are looking at some of those recommendations. Who knows when we might ever see in the light of day any legislation out of it.

In the course, though, of his consideration of this matter, Mr Richard Bingham recorded this in his report—and he provided this information again to me before his departure as the ombudsman of South Australia when wrote to me on 25 June this year in respect of this legislation before us now. I will read from the correspondence of that date referring to his audit of the Freedom of Information Act. He pointed out that there was provision under section 52 of the FOI Act to provide immunity for civil and criminal liability for a person acting honestly and in the exercise of purported exercise of functions under the act and that it did not provide immunity for disclosing information outside the act. He went on:

My audit received evidence from several witnesses, suggesting that there is a fear within agencies of releasing information outside of the FOI Act—due to lack of legal protection; possible embarrassment to the government; or simply an anxiety about 'doing the wrong thing'.

Far from there being some widespread fear about publication of this material, as I think is suggested by the government to justify this amendment, he actually suggests that whilst he had included 'due to lack of legal protection', he also points out on his information from the several witnesses the other reasons for being fearful about releasing information, namely possible embarrassment to the government or simply an anxiety about 'doing the wrong thing'.

I hope that does not indicate there is a widespread anxiety amongst our public servants that they are so fearful of what the government might say if any information is released that could embarrass them or about which they are so sensitive that they do not want to upset their minister or superior employers or chief executives and are paralysed with concern about this. If they are worried about these things, which the ombudsman suggests they apparently are as to the latter here as an indicator in his report and as a side issue as a sort of obiter addition to his report, why is it then that we have not heard from the government to try to remedy that ill rather than attempt to just look at legal protections?

I thank the ombudsman for providing some assessment of the bill before his departure from South Australia. Unfortunately he does not go so far as to give any comment on distinguishing between the civil and criminal liability immunity which is provided under the FOI Act. In fact, what we have here in this bill is a blanket immunity and, as I say, not simply confined to the areas of defamation and breach of confidence. I think that would have been helpful. I make no criticism of his not providing that, but I simply make the point that, at this stage, we have not received anything from the government that would justify an extension of the immunity beyond the areas of defamation and breach of confidence, and that is either in the second reading contribution of the Attorney or since. Nor have I received any submission from any representative from the Public Service that this is an area of concern where they seek to have this blanket protection.

It does raise a lot of questions about why the government proposes to go so far as to provide this blanket protection when it appears, on the face of it, that nobody has actually asked for it. No-one has said, 'We need to have this protection, at this expanded level, before we can act.' In fact, as best I can see, members of the Public Service are already placing on the website within the categories that have already announced by the Premier and, indeed, consistent with the circular he issued 12 months ago. So, to me, there are a lot of questions to be answered.

During the course of the briefing on this matter, which was provided by Ms Markou from the Attorney-General's Department, I inquired whether there had been any legal action against a public servant in this area for the disclosure of material outside the FOI Act, whether it was for the list of material that is now published about ministerial expenditure and travel and the like, and the answer to that was none.

I inquired whether there had been any, I suppose, threat of legal action by a solicitor's letter or by a complainant who claimed to be defamed or had suffered in some way from the consequences of the release of documents, somebody saying, 'You're a member of the health department, and you've released material about myself or my client, and we're indicating that we want to take some legal action to sue you as a result of this conduct.' Answer? None, not one example, nor has it been presented since. This is no reflection on Ms Markou because she is, of course, just the adviser.

The point is that there appears to be no conduct where a public servant had been put at peril of litigation against them as a result of the disclosure of documents. Again, we were in a complete vacuum as to whether there had been some deluge of action, or any action at all, against public servants that would not unfairly or unreasonably incite some fear in them, but we have not had anything; we have had no indication of this. There has been complete silence.

The other matter I was advised during the briefing was that the Attorney-General's Department had identified that only Tasmania and New South Wales, as other states, had offered protection against civil liability, that is, immunity from civil liability.

They also were limited to defamation and breach of confidence, consistent with our own Freedom of Information Act as applies, but again this legislation was going much further than that. The commonwealth provided limited protection for defamation and breach of confidence and also, apparently, copyright, but again very limited circumstances were provided for immunity from civil liability.

To me, this raises two or three very concerning aspects; the first is that we are asked to pass legislation on the basis of an apparent fear of which no detail or example has been provided, which clearly, if it does exist, has not been sufficient to stop the relevant public servants already complying with the circular of the Premier over the last year, and which has apparently elicited no legal action by proceedings or threat by legal letter or otherwise. That is the first thing: we are being asked to do something when there is no apparent ill to protect.

Secondly, in being asked to provide an immunity in the circumstances of publishing outside of the FOI Act, we are being asked to do so without any restriction. No other jurisdiction provides this; there seems to be no justification for going this far. It raises the question as to why it is necessary to do that—to actually give this blanket immunity to public servants in this area—and, even more importantly, what is the consequence, or what could be the consequence, of just giving complete blanket protection to public servants in this situation?

To me, the most logical answer to that is that, if you give protection against potentially having a liability to pay money because you have been negligent or reckless in the disclosure of information—which may be disclosed contractual material, for example, or material of a personal nature which the person aggrieved is entitled to rely on being kept confidential and/or it has been provided by them to the government in the expectation that it is confidential—it could lead to public servants in those circumstances thinking, 'What the heck, it doesn't really matter. I'm immune. I don't have any responsibility. I don't have any duty of care to the person whose material I am about to place out in the arena.'

To bring it home to those who might be affected, I think ministers of the government need to appreciate that they in fact, in the first list, could be the first victims of this. Let me give you an example. I am not suggesting that this is a circumstance that actually exists, or certainly not that I know of, but the type of situation that could occur is this. The public servant receives the memo and thinks, 'Okay, I've got to put my minister's travelling arrangements up on the website.' They go through their material, they identify what it is, they issue the authority for it to be put up on the website, and it covers a ministerial trip to anywhere—Botswana—and in that material, which is not required to be disclosed, are personal particulars of someone else who might have been an accompanying person with that minister, apart from staff or departmental personnel, which may be private and which, if disclosed, may cause some embarrassment.

I say to the government: beware of having a situation where you yourselves may have no redress, if we pass this legislation as it stands, against a public servant who has acted negligently or recklessly or who has in breach of the terms of a contract caused some damage for which they would otherwise have a cause of action or a tortious claim. You will deprive yourselves, even under the current circumstances, of being able to have any redress to that public servant.

You may be able to give them some disciplinary action for not being very careful with the documents because they think, 'What the heck, it doesn't matter. I'm immune from liability, I can throw it up there.' Be careful what you wish for. We must remember that, whilst the government has announced that this area of disclosure relating to expenditure of ministers is a category about which they say they want to be open and transparent, there is also considerable material in respect of procurement within departments, material in relation to capital works and description expenditure and the like. I would hope, quite frankly, that if the government is genuine about placing material in the public domain without us having to go through these endless and repetitive freedom of information applications, they would realise that there is a whole lot more material that public servants, who have the job of placing this material on websites and publishing material, have to deal with. I do not want a situation where people become slack and do not properly handle these things.

I expect—and I think ministers and this parliament should expect—that members of the Public Service do have a duty of care and, if they go outside of their area of responsibility and do not apply a reasonable standard in that regard, they should be exposed to that risk. We on this side of the house have accepted, for the purposes of the Freedom of Information Act, that there should be some reasonable exemption from that. Defamation and breach of confidence are two well-known areas in which we should not expect public servants to have to make an assessment about the content of information which may be defamatory, so we give that reasonable protection. Other jurisdictions have recognised that.

I indicate that I will be moving an amendment to reduce the extent of the immunity under this bill to provide that the immunity that is proposed will delete the circumstances in respect of tort, contract, equity or otherwise as described and replace it with the restricted areas of defamation or breach of confidence. It is consistent with other jurisdictions. It will still maintain an obligation on behalf of the public servant to exercise a duty of care at a reasonable standard and ensure that we balance as best as possible the disclosure of information that should be available to the public and reasonably protect information which should otherwise have protection.

I say that in relation to the possibility of people effectively becoming slack in their review of material before they place it as a result of this immunity. Personally I think that when people take out insurance unfortunately one of the consequences is that sometimes they get a bit slack. You take out insurance on your house hoping that it will not burn down on a hot, windy day. Of course, the best way to protect your house is to make sure that it is properly cleared and that you have taken all the bushfire management measures to ensure that, if a hot windy day arrives and a fire comes with it, your asset is preserved.

It is important that people are proactive in that area but it becomes a bit too easy for people to say, 'I will insure my house' or then next year they say, 'I'll insure my fences,' but they think, 'You know, it's going to be expensive for me to clean up around the fences so I am not going to grade out a strip to protect if a fire comes. If the fence gets burned down, that's fine; I'll just make an insurance claim and I will build another one.'

I am not saying that people ought not to act and even, indeed, investigate and obtain insurance for the purpose of protecting the value of their assets, but I make the point that, once people are protected from having to take personal responsibility or protected from having to put their hand in their own pocket, usually they exercise a lower standard of discipline in respect of what they are obliged to do themselves. I think we then move into an area where it can present an opportunity for those in this area to be a bit lax, a bit lazy and, ultimately, not do the best. That is the second reason: I think it exposes a deficiency in the far too wide application of this.

In the course of that consultation I received advice from the former ombudsman that he had consulted State Records and they advised him, and he reported on to me, as I quote from his letter:

State Records does not however support this approach (the proposed amendment)— that is the bill that is before us—

and believes that protections for proactively disclosing information is better provided through the FOI Act, as is the case in other jurisdictions. In addition, there is a concern that agencies will only release information as prescribed in the regulations to the Civil Liability Act.

Members will be aware that this bill sets out prescribed documents, and information that is listed under prescription and in prescribed circumstances, which I am sure anyone following this legislation will have already identified.

It is planned under regulation that a prescribed list of documents will apply. The minister, in fact, tells us in his second reading explanation that he anticipates that the regulations will prescribe general information about government agencies (and I have listed those as examples of the items in the Premier's circular from last year), and submissions on government policy initiatives. I assume that to mean that, when the government has put out a draft policy for consideration and calls for public submissions, they will go up on a website of some kind.

The third area the Attorney foreshadows prescribing is information released in accordance with government-wide disclosure policies and information of a nonpersonal nature that has already been sought and provided in application under the FOI Act. We are not sure what the extent of that list is, but I imagine that it will relate to material that is regularly, in fact annually, applied for by people like me who make application for the disclosure of information.

One of the reasons I think it is a good thing that this information should be available is that it is an expensive process. The audit from the Ombudsman should tell us pretty clearly a number of the deficiencies of the operation of the act but also the extraordinary workload that is required under the processes of the FOI Act to provide basic information, to provide areas that are redacted, to exclude some information, to receive objections, to review the draft judgements or determinations of the Ombudsman, and to go to the District Court if necessary. This is all a very expensive process, and some of this material is sought every year. Finally, after it goes through a number of processes, it is published or provided. It just makes a mockery of the alleged position of the government, namely, that they want to be proactive in the area of general information that should be available to the public.

One of the areas that is particularly concerning to me is that, during the course of the last few years in particular when there has been considerable complaint from this side of the house and in another place and in fact from the public generally about the secrecy of the government, they have made various promises about what they will do to provide information just within departments. I remember when we had waiting lists in hospitals and we did not have any immediate, real-time data as to the availability of access to emergency departments. I, amongst many others, made complaint about the government being quite secretive about this, and they then promised that they would provide monthly reports on the website about availability and then that would become more frequent. Now we have what I was about to call the desktop, but it is called something else.

Mr Speirs: Dashboard.

Ms CHAPMAN: Dashboard, yes, and I thank the member for Bright. This was to be a new state-of-the-art information portal that would give us all the information about what was happening in our hospitals, how many were waiting and what would be the best place to go to get a bed or quicker treatment—all those things. What do we find just in the last week or so? The thing is shut down; it does not work. There is some problem—

The DEPUTY SPEAKER: It's exhausted.

Ms CHAPMAN: It is exhausted, as the Deputy Speaker assists me. That may be so, but I just make the point that we have all these promises. We try to access the information and we are given all sorts of reasons and excuses about why they have not put up last month's report, that the new technology is not working and that they cannot provide it to us. We ask for this information in the parliament, and we may as well hit our heads against the back wall. We ask for it in estimates and of course we wait, as we are now—I think I have dozens of questions still being answered.

In the Department of Transport, I remember that, when the former minister for transport services (the former member for Bright) was having a little bit of trouble with the buses, she made all sorts of announcements about making sure that the public would have access to real-time information that would assist them in knowing when services were going to be available or when services were going to be interrupted. This would be a great tool of assistance to the general public; it would encourage public transport use, and we would have a happy, bright, sunny world in the public transport arena.

What would happen? Month after month we would be waiting for all of the data that was supposed to be entered on a quarterly, then monthly basis to be made available to give us an immediate picture and hopefully, if it was there, some level of confidence in the public transport system. They had a few other problems at the time, and you would have thought that if there was ever a time they needed to keep the public informed that would be the opportunity to do it.

The Office of Crime Statistics and Research—a porthole or website which I regularly have a look at—has become a skeleton of what it originally was. From memory, it was established in the late 1990s as an important tool surviving the Y2K bug, and has kept going. It used to be an absolute bounty of information and if you needed to know the detail or the profile of the criminal activity in the sense of convictions, for example, in a certain location, that information would be detailed, contemporary and available.

What do we get now? I go to this service—which I am sure other people do, not just politicians but anyone who is doing research in this area—and what do I find? At best the data is four years old—four years old. There is some data from 2011 on that website, but again it is shamefully in arrears in the sense of provision of information. The Australian Bureau of Statistics, which I have given a bit of a dust up a few times over the years, is at least a little bit more contemporary. And when it comes to the question of the comprehensive level of information that used to be available, that is now a shadow of what it was.

What does that do? Again, it is like trying to say, 'Well, we want to keep from the people of South Australia all the ugliness of the law and order data that might tell the real picture of what the government has not done in arresting the level of crime in this state.' So we have selective publication, we have delayed publication, we have limited publication, and what does it do? It just shines a further light on the government's attempt to quarantine the public from legitimate information which they should have— not just to bring a government to account but to be able to develop policy and proposals for government consideration (and this parliament) on an informed basis. But it would rather keep the public ignorant and in the dark—the old mushroom platitude—rather than coming clean with that information.

They are three examples in portfolios that I have dealt with in recent years where I have been deeply disappointed, and I am sure that is only part of what others would feel. The statements by government on the one hand, the glorious razzle-dazzle announcements about being proactive, transparent, open and wanting to share information with the people of South Australia, yet the reality is far from that.

I received with some cynicism the government's announcement last year that it would suddenly act to provide all this extra information. I think it decided that eventually, because there were freedom of information applications anyway in relation to all of the travel by ministers and with the rorts that were exposed and all of the problems around that, the way to deal with it was to try and say, 'Look, we will make this sort of information available.'

People in here might be interested and sometimes the media might be interested in, and I think the public is entitled to know, what ministers spend and how they spend it, and so on. I do not have any issue with that. I think that is reasonable, but it ought not be at a stage where the government reacts to this situation only when they get into trouble with ministers who are caught out undertaking expenditure which, when disclosed, is not acceptable on any level by the government.

I am not going to traverse the areas that brought the government, minister after minister, into disrepute, for bills in restaurants and trips with family members, and the like. That is well known and I do not place a lot of currency on all the intimate details of what ministers do. I think there needs to be public accountability, but I do not pay a lot of attention to it, to be honest. I have to say, I genuinely accept that ministers have, and should have, reasonable expenses reimbursed for the purposes of undertaking their duties, and I am happy to support that. If they breach it or if they run too close to breaching the rules, then obviously there has to be some remedy, and the public has to have some confidence, so that when there is exposure of rorts there needs to be some action.

The reaction by the government is to issue the guidelines, as I say, and then a year later come in with this legislation. I think there are sufficient defects in going down this line in such a broad manner. For those reasons, the opposition will be moving amendments to restrict that, consistent with the application interstate and with the commonwealth.