2002-10-08
Madam Speaker Braham took the Chair at 10 am.
Madam SPEAKER: Honourable members, I lay on the table Message No 9 from His Honour the Administrator advising of his consent to the proposed laws passed by the Assembly during the August sittings.
Mr MALEY (Goyder)(by leave): Madam Speaker, I present a petition not conforming with standing orders from 29 petitioners relating to the Humpty Doo rubbish dump.
Mr MALEY (Goyder): Madam Speaker, I present a petition from 335 petitioners praying that members allow a genetically modified free Northern Territory. The petition bears the Clerk’s certificate that it conforms with requirements of standing orders.
Mr MALEY (Goyder): Madam Speaker, I present a petition from 1321 petitioners praying that a 24-hour medical assessment service be reinstated and a 24-hour chemist facility established for the Palmerston and rural area. The petition bears the Clerk’s certificate that it conforms with the requirements of standing orders.
I do not propose that the petition be read. It is in similar terms to a petition presented in the September sittings.
Madam SPEAKER: Honourable members, it is with deep regret that I advise you of the death on 26 September of Dianna Mary Harris. Dianna was an officer of the Legislative Assembly from 1989 until her passing. She commenced as a personal secretary to the former Clerk, Mr Guy Smith, and was then personal assistant to the present Clerk, Ian McNeill. Later, Dianna transferred to the secretariat of the Legal and Constitutional Affairs Committee as administrative and research officer and, during the last few years, she has worked in the education and information unit.
Honourable members would be aware that a memorial service was held on Monday, 30 September. Former and present members who contributed to this service included Mick Palmer, Barry Coulter, Syd Stirling, Terry McCarthy and Phil Mitchell. At the service for Dianna last week, the Clerk reflected on Dianna’s career with the Legislative Assembly.
She commenced, as I said previously, as the personal assistant to the previous Clerk and established a very highly successful, close, and professional working relationship. With Guy Smith’s unexpected retirement due to ill health and the succession of Ian McNeill to the position of Acting Clerk, it was Dianna who encouraged, advised and counselled him in those days. The Clerk concluded that they managed to meet the challenges of those early months, largely due to Dianna’s guidance and accumulated wisdom. In that role, and in other positions Dianna held in the department in the committee secretariat and the Parliamentary Education Information Unit, the most significant attribute that she possessed was as an expert in English usage and as a skilled and creative writer. Her knowledge of grammar and construction was without peer in the department. The quality of her written work is evidenced in a number of areas: both in committee report writing, in the production of educational resource materials and, also, in speech notes she produced over a number of years for speakers and delegates for presentation at conferences and significant commemorative events.
Dianna expressed an ambition to extend her work experience beyond a secretarial and personal assistant role; in 1998 she transferred to the committee secretariat where she worked as an administrative and research officer to the Legal and Constitutional Affairs Committee. It was in that role that she played a significant part in the production of the 1999 report of the Legal and Constitutional Affairs Committee into Appropriate Measures to Facilitate Statehood. Dianna’s valued contribution was acknowledged by all committee members at the presentation of the report, which has become accepted as a major reference for future directions in achieving statehood.
Later in her career, in the Parliamentary Education Information Unit, her talents as a writer were again to come to the fore in the production of a number of reference and resource materials currently being included in the Northern Territory curriculum framework.
As well as these attributes in her recent role in the education information unit and dealing with students, trainees and apprentices, Dianna demonstrated a gift as a skilled mentor and teacher. One of the sorrows of her passing is that some of the ambitious in this area have not yet been fulfilled. However, the products of her professionalism and skill will be a lasting tribute to Dianna’s memory.
On behalf of the members and officers of the Legislative Assembly, I tender a profound sympathy to Dianna’s children, Bridie and Simon, and grandchild Jordan. I ask honourable members to stand in silence for one minute as a mark of respect.
Members rose and observed one minute’s silence.
Madam SPEAKER: Honourable members, it has, indeed, been a rather sad two weeks for the Legislative Assembly. It is also with regret that I advise honourable members of the death on 4 October of Horace Guy Smith, former Clerk of the Legislative Assembly and Officer of the Australian Senate, and his wife, Mrs Jan Smith.
On completion of debate, I will ask honourable members to stand in silence for one minute as a mark of respect.
Ms MARTIN (Chief Minister)(by leave): Madam Speaker, I move that this Assembly express its deep regret at the death of Horace Guy Smith and Mrs Jan Smith on 4 October 2002; tender its profound sympathy to their families; and place on record its appreciation of Mr Smith’s meritorious and dedicated service as an Officer of the Australian Senate and as Clerk of the Legislative Assembly.
It is my sad duty to speak today to this condolence motion for Guy Smith, long time Clerk of the Legislative Assembly and a former Usher of the Black Rod in the Australian Senate, who passed away at his home in Queensland on Friday 4 October 2002.
I knew the former Clerk only by reputation but my colleague, Deputy Chief Minister, Syd Stirling, will speak shortly from personal experience about Guy Smith on behalf of government. Mr Smith was well respected in Canberra as well as in Darwin and the Territory and we were very privileged to have had such a distinguished Commonwealth employee as our Legislative Assembly Clerk.
Adding his Commonwealth and Territory employment, Mr Smith chalked up 36 years of parliamentary service. He arrived in the Territory in 1983 after 25 years in the Senate including service as Usher of the Black Rod, Principle Parliamentary Officer and Clerk Assistant to Committees. Mr Smith’s moment in the national spotlight occurred during the dismissal of the Whitlam government on 11 November 1975. Many of the pictures of the time showing David Smith, the Governor-General’s private secretary reading out the proclamation dissolving parliament, show Mr Smith standing close by. Some of the photos of Gough Whitlam’s subsequent speech on the steps of the National Parliament also show Mr Smith in attendance. As Usher of the Black Rod it was his responsibility to ensure the security of the Senate. This was quite a challenge on that particular day as crowds of protestors and onlookers mobbed Canberra’s Parliament House.
Mr Smith moved to Darwin in 1983 as Clerk of the Legislative Assembly when we were still in the early stages of self-government. He was responsible for many important reforms including changes to the standing orders, parliamentary privilege rules and the parliamentary committee system. Guy Smith retired in 1994, and he and his wife, Jan, moved to Queensland. Friends of the family have been sorry to hear that both of the Smiths died in Queensland last week.
On behalf of the government, I would like to offer my condolences to relations and friends of the Smith family, particularly Guy and Jan’s son and three daughters.
Mr REED (Katherine): Madam Speaker, the member for Nhulunbuy and I are the only two members in the House today who would have worked with the former Clerk, Guy Smith, and it was a privilege indeed to have known him. Indeed, from this Assembly’s point of view, we should be very proud of the fact that the Assembly was able to attract a person with the experience, knowledge and understanding that Guy Smith had, that he brought with him to this Assembly from the Australian Senate.
The picture should be put on the record, too, that as Clerk of the Legislative Assembly he did not have the services and facilities that we have available to us today in both the building and the amenities that are available to us. Whilst the Assembly of his day was on this site, it was a much different facility. To demonstrate that I recall that when I was first elected in early March 1987 the first sittings were in late March/early April, as I recall, and was sitting in the building, which I think was at one stage of its prior life a car sales display building. There was all sorts of thunder and lightening crashing around the area and the attendant, Tony, who is now the maintenance officer in this building, entered the Chamber with a whole pile of green plastic buckets. He sat one on my desk. He lined it up with the ceiling and set the bucket there and I thought that was a bit unusual. The Clerk, Guy Smith, had the habit from time to time of sending the odd note. I received one on that occasion. I do not recall the precise words but it made some reference to the fact that he did not consider that I had some illness about to beset me, but it would soon start to rain - very heavily, obviously, with this big storm approaching - and the roof leaks, hence the bucket on your desk. There were other buckets placed strategically around the Chamber and Tony adequately judged precisely where they should be placed. When the storm did hit, it was not just the odd drop into some of the buckets, it was indeed quite a forceful stream of water that poured through the ceiling. On that occasion, a couple of the buckets had to be replaced because they filled up.
When you consider the changed circumstances in relation to the conditions under which Mr Smith worked in Canberra and those in which he found himself when he came to the Northern Territory, it was quite amazing in terms of the position that he held and, of course, the conduct of the parliament. The buildings were very old. He had an office that was along Mitchell Street before it was closed off, and just to the right of Parliament House, looking at the building. There was an array of other buildings, demountables, at the back of the Chamber that we used for various purposes, for offices and a tea room and the like. They were very different conditions that he had to endure here, but it did not detract one bit from the quality of the service that he provided as Clerk of the Assembly. I recall very clearly the support, guidance and assistance that he provided to new members. During the remaining years of his service as Clerk of the Assembly, he was always very supportive, always prepared to help and had all that wonderful knowledge to draw on.
The Chief Minister has made reference to the fact that he was a player, as Usher of the Black Rod, in probably one of the most turbulent times of federal politics in this country with the dismissal of a Prime Minister; historic, certainly, in those terms. His part in that enriched his level of experience and the difficulties that he would have had to face at that time. He never talked much about it, to me, anyway. He was a man who understood and revered the practices of his position in terms of the confidentiality of the work that he undertook and that in itself says a lot for Guy Smith as our Clerk and the services that he provided to us.
Our current Clerk, Mr McNeill, was his understudy and he was fortunate, if I might say, to have been able to have had such a teacher, such a mentor, and someone able to pass on to him the many facets of being a Clerk of a parliament. Again, in one way or another, perhaps the experience that Mr Smith brought to this Assembly lives on to some extent with the knowledge that he was able to pass on to the current Clerk.
It is a sad day to recognise the passing of Mr Smith and his wife, and ironically, within a very short space of time, a week or so, also the passing of Dianna Harris, the former Personal Secretary to Mr Smith. It is quite an unusual situation that they both should pass away at such a similar interval in time, and one that it does not hurt to reflect on in regards to the services that both those people gave to the Assembly.
It is rather unorthodox, Madam Speaker, but we have been known to be unorthodox in this House before in allowing different processes to be undertaken. Whether he wants to or not, it might be nice to extend the opportunity to Clerk McNeill for him to express some views in relation to Mr Smith and an opportunity for him to place on the Parliamentary Record, as unusual as that would be for the Clerk – it is entirely up to him - and with the leave of the House to take this opportunity to pay respects to the former Clerk.
Mr STIRLING (Leader of Government Business): Madam Speaker, I thank you for your testimony to Ms Dianna Harris who equally served this parliament very well. There is a sad irony in the fact that Dianna, Guy and his wife, Jan, being such close friends as they were, were all to pass away within the space of a week. In relation to the member for Katherine’s suggestion, that has my wholehearted support for the Clerk. I did feel that he would like to contribute to this condolence motion.
I first met Guy prior to the last sittings in 1990, having been elected in the October 1990 election. I came in for an induction process for new members followed by, I remember, a rather delightful lunch. I remember Guy attempting to explain parliament during the induction procedure as, ‘just like a big meeting, albeit with its own rules’ – rules that some 12 years later I still struggle to get across from time to time. In those days we were in the Chan Building across the road, and Guy controlled the Chamber with Speaker Dondas, always with an element of humour in the recommendations and advice that he gave to Speaker Dondas who equally, I think, utilised humour to good effect from the Chair. He equally controlled the rear corridors of the Chan Building, particularly on the opposition side of the building, because they led to the glass doors which led to the balcony outside where members would adjourn for a quiet smoke from time to time.
I remember, on many occasions, the former member for Arnhem, Wes Lanhupuy, Guy and I outside the back of the Chan Building having a quiet smoke and Guy, when relaxed, and he most often was – in fact, I do not recall him ever not being relaxed in his position – loved to tell tales of the days in the Senate and often with quite intricate details leading up to the punch line, but invariably with a sting in the tail, and if you listened closely, somewhat of a moral message in relaying perhaps, to a new and inexperienced member, of things not to do. I always felt very privileged to share those inside-type stories.
His knowledge of parliamentary procedure and standing orders was not just beyond reproach. It was not the technical mastery of the profession, and it was even more than a deep respect for the Westminster system of parliamentary democracy. I think it transcended – it was a profound love of the entire system. In the mid-1980s we know he rewrote entirely the Standing Orders pertaining to this Assembly, and he built the committee system, in its infancy in those days, into what we have today.
While the Northern Territory was indeed privileged to have someone of his expertise, experience and wisdom serve in this Chamber and serve the people of the Northern Territory through his position for a period of 11 years, it was also equally great for Guy. He was in a Senate that had its systems locked down, rock solid. Here he could move, he could advance and put into practice some of the things that he saw from the Senate, some of the sound practices that have served us and continue to serve us to this day. He was able to, in a sense, grow the Northern Territory system on the back of his experience.
I also worked with Guy between 1991 and 1994 as an opposition member on the New Parliament House Committee. He devoted a great deal of time to that, along with Speaker Dondas. He gave very close attention particularly to those aspects of the building relating to the Chamber and to the parliamentary aspects itself. As a small Assembly, as fortunate as we were to have had his services, I think it was good for Guy as well. By bringing our own Clerk, Mr McNeill, to the Northern Territory in 1985, having worked together in the Senate, his legacy has been much with us even after his retirement in 1994. Ian would be the first to admit a debt to Guy, who was his mentor in what we as outsiders would see as the somewhat closed and hallowed ranks of parliamentary Clerks in the Australian system. The Assembly owes much to his efforts.
On behalf of all who worked with and knew Guy and Jan, I express condolences on their behalf to Guy and Jan’s son and three daughters for the sudden loss of both parents almost at the same time.
Madam SPEAKER: Honourable members, we did discuss with the Clerk earlier whether he would like to speak or not. He tells me the only time Clerks are usually invited to speak in Assemblies is when they resign. I certainly do not want to encourage that. But I will ask the Clerk and give him the opportunity if he would like to make some comments.
The CLERK: Thank you, Madam Speaker and members. First, I would like to express my thanks for the kind words that have been spoken on behalf of Guy today. I want to record, on behalf of Guy’s colleagues and former colleagues, the high regard with which Guy was held by his Clerkly colleagues in Australian and overseas parliaments.
His professionalism and his significant contribution to the development of our practices, procedures and administration in this Assembly and its committees, I think, helped this Assembly achieve a parity of esteem with other Australian state and territory parliaments in a very short time after the Territory achieved self-government.
This building is a testament to his capacity in his role in the planning, design, construction and now, the functioning, of a Parliament House for the Northern Territory.
He was generous in sharing his extensive knowledge in parliamentary matters. He was an excellent mentor, and a good friend to all who worked with him. Guy and Jan will be sadly missed but their contribution to the Northern Territory and, in particular, to this parliament will be a lasting tribute to their memory.
Madam SPEAKER: Before I ask you to rise as a mark of respect, I would like to record the request from a number of former members and officers of the Legislative Assembly to be associated with this motion of condolence. If you will bear with me, these included former Speakers with whom Guy served: Nick Dondas, Roger Steele and Terry McCarthy. Former members who have requested to be associated with the motion include: Peter Adamson, John Bailey, Neil Bell, Gary Cartwright, Barry Coulter, June D’Rozario, Bob Collins, Brian Ede, Paul Everingham, Fred Finch, Tom Harris, Steve Hatton, Maggie Hickey, Bern Kilgariff, Danny Leo, Daryl Manzie, Noel Padgham, Mick Palmer, Eric Poole, Jim Robertson, Rick Setter, Terry Smith, Shane Stone, Marshall Perron, Grant Tambling, Ian Tuxworth; and former Clerk, Ray Chin; and former parliamentary officers, Paul Stewart and Felicity Middleton.
It is a mark of respect that so many people have been in touch with the Clerk to record their condolences on this significant occasion.
I advise the Clerk will represent the Assembly at the funeral service to be conducted later this week in Queensland for Guy and Jan, and he will deliver the eulogy on our behalf at that service.
I now call on members to observe one minute silence as a mark of respect.
Members rose and observed one minute’s silence.
Madam SPEAKER: I thank honourable members.
Ms MARTIN (Chief Minister): Madam Speaker, I rise to make a report to inform honourable members of some of the work that my Office of Territory Development has undertaken recently in relation to investment attraction activities associated with the development of the AustralAsia trade route, and the establishment of new value-added industries in Darwin.
As I am sure all members are aware, it is my government’s vision to establish the Territory as Australia’s Asian gateway for international trade between Australia and Asia. It is clearly articulated within my government’s policy blueprint for social and economic development, Building a Better Territory, just how this vision will be realised. Indeed, it is clearly articulated exactly what strategic approach and priority actions will be pursued.
For the benefit of all honourable members, I will quickly reiterate those strategic approaches and priority actions. The strategic approaches are: to develop international trade by building Territory trade capability; developing market awareness and overseas markets; expanding the AustralAsia trade route and capitalising on Territory links and services; maximising value adding and other opportunities from land, sea and air infrastructure; and to develop efficient inter-model linkages to maximise economic development opportunities associated with Darwin’s role as Australia’s Asian gateway.
The priority actions are:
during 2002-03, work with the rail consortium and its potential customers to develop
international trade through the port of Darwin to achieve a target of 50 000 containers
per annum by the end of 2007;
by July 2002, in conjunction with the rail consortium, interview 100 Australian and Asian
companies that could potentially send their products via Darwin;
during this financial year, help targetted companies establish value adding operations in the
Territory so that by 2007 up to 30% of products land bridged via Darwin, are subject to value
adding activity within the Territory;
complete the AustralAsia Railway and East Arm Port integrated transport project by January 2004;
provide land at East Arm Peninsula to establish an inter-model freight terminal and supporting
facilities to increase the level of value adding logistics processes;
establish the Darwin Port Corporation as a government owned corporation by January next year;
and
directly promote the benefits of the AustralAsia trade route to the head offices of leading international
shipping companies by 2003.
Work on these priority actions is well advanced and, in some cases, completed. However, this ministerial report will concentrate on the most recent endeavours of my staff in the Office of Territory Development to fulfil` my government’s goals and objectives. In June 2002, my staff participated, in partnership with the Darwin Port Corporation and FreightLink, in the Supply Chain Asia Pacific Summit in Perth. The summit offered access to over 70 major international companies from a broad cross-section of Australian industry including the automotive, food, dairy and computer manufacturing sectors, with significant domestic and international market destinations in the Asia Pacific region.
The joint Northern Territory FreightLink delegation that participated in the summit provided a wide transport and logistics focus and was able to engage other participants and advise them of the current state of play with the port and rail project developments and capabilities. The team conducted 22 face-to-face meetings during the course of the summit. The information gained and relationships established with senior executives encouraged further dialogue beyond the summit. In particular, strong relationships were established with the automotive industry such as Mitsubishi Motors, Nissan, Tenneco Automotive and South Pacific Tyres, and also with food manufacturing companies such as Nestl Australia, National Foods and Simplot.
Other opportunities also eventuated, such as with Darrel Claasz, who is with ING Australia Ltd, and is the Chairman of the New South Wales Institute of Purchasing. He extended an invitation to the Territory government and the FreightLink team to address its members in the development of the AustralAsian trade route at one of its regular monthly meetings. Scott Laden of Hewlett-Packard was yet another example. Australia’s Asian gateway team discussed his company’s activities and, in particular, its land bridging operations via the Port of Fremantle.
The ultimate benefit of the summit was the access to a broad range of empowered decision-making from some of Australia’s most significant companies. These companies willingly gave information of their existing operations and future strategic directions. The opportunity to promulgate the AustralAsia Railway and the positioning of Darwin as Australia’s Asian gateway was widely accepted as a real opportunity for those with markets in Asia or, indeed, with future aspirations of obtaining or increasing their markets in Asia.
This report confirms my government’s commitment to maximising the opportunities for the Territory from the development of the AustralAsia trade route.
Mr BURKE (Opposition Leader): Madam Speaker, I note the report from the Chief Minister with regards to initiatives by government to develop the AustralAsia trade route with the lofty ideal of having 50 000 containers across the Darwin Port by 2007. Certainly, that is a focus I hope the government achieves.
I have to say to you that, based on what I have heard the Chief Minister say, there have been a number of meetings but not one outcome. Some of the things with regards to the development of the port have all been put in train. I wonder, Chief Minister, who is actually driving this? Is this being driven by public servants from the Office of Territory Development? If that is the case, they want to move faster than they have moved so far, because it took six months to find an office, and it has taken 12 months to finally arrive at a CEO, and I applaud the appointment of the CEO.
The development of the AustralAsian trade route requires a minister focussed on that task. It is not good enough to come to this Chamber and talk about what public servants are doing, what meetings they are attending, what links they are trying to establish, what relationships are starting to be built. What I would like to know is: which minister is in charge of it, which minister is driving it, what are the minister’s priorities, and how the minister intends to achieve those priorities to at least get one additional container across this port by 2007, if not before.
So, I look forward to hearing further details. It is a subject, as I have mentioned before, of a full ministerial statement so it gets appropriate debate. You and I know, Chief Minister, that the priority of the railway group at the moment is to establish their own tonnages in achieving freight within Australia from the southern ports into the Northern Territory, and from the Northern Territory to the southern states. That is their priority. What it requires government to do, driven firmly by a minister, is to start moving this AustralAsian trade route along in advance of the efforts of, but also in cooperation with, those railway constructors and freight forwarders.
Whilst I welcome the statement, it contained nothing new, nothing of substance. I look forward to something of substance being brought into the Chamber.
Ms MARTIN (Chief Minister): What an extraordinary response from the Leader of the Opposition …
Mr Henderson: Churlish.
Ms MARTIN: Churlish, negative - absolutely churlish and negative. An extraordinary response to what is a great Territory project. If the Opposition Leader - in his role of being interested in the railway and the port development and the land bridging opportunities - had sought a briefing, he would understand that the driver here is FreightLink, not only for freight to the port of Darwin, but also the land bridging to Asia. We are working in conjunction, as I said quite clearly in my report, with the Office of Territory Development and FreightLink to achieve these important developments for the Territory.
To hear the Opposition Leader come here and bag both FreightLink and OTD and make pathetic and superficial comments, is more an indictment on him than FreightLink, OTD or this government. It is very sad to hear.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I take this opportunity to report to parliament on the government’s plans to develop the future directions of secondary education in the Northern Territory government schools.
On Wednesday, 25 September, the Chief Minister and myself announced the commissioning of a comprehensive report into secondary education, commencing January 2003. The report is expected to be delivered in September 2003, with the ability for government to implement those recommendations it can at the commencement of the 2004 school year.
It is the first time in 10 years that secondary education has been reviewed, and we see the report as crucial to ensuring Territory students are receiving education that meets the challenges and opportunities of a rapidly changing and technologically advanced world. The report will consider all aspects of secondary education provision in urban, rural and remote government secondary schools throughout the Territory. It will examine the impact of information technology, vocational education and training options, broadening education and career options, retention rates, access to secondary education in remote communities, and the impact of national developments in education.
We need to ensure the changing needs of students are being met by making sure a wide range of education and vocational options are available to them, and we need to build real pathways from school to training to skilled employment.
A highly qualified external consultant will be contracted through an open tender process to conduct the review. There will be wide consultation with all stakeholder groups throughout the Territory and we will seek input from the non-government sector. Education is of the highest priority for this government, and the government has commissioned the report to ensure that Territory students receive an education comparable to or better than that available in the rest of Australia.
Mr MILLS (Blain): At the outset, Madam Speaker, I welcome the scope of this review. Secondary education, particularly, will benefit from a review of this nature. I am, though, concerned about the volume of reviews that are currently on foot, particularly when we have school-based constable review process apparently concluded with no outcome. Also the SHAPES, Sport Health and Physical Education, review has been on foot and closed since April. There has been no result to that. In acknowledging that this review, though welcome, does not actually come into effect until 2004, it creates an atmosphere where there is a sense of activity and decision-making when, in fact, it is prolonging a process, perhaps unnecessarily.
I also draw attention to setting off on a course like this when we have such a plethora of reviews, that expectations are raised significantly. I am expressing my concern that we are able to manage this process right through to the very end and make an actual difference to the education outcomes for secondary students.
Mr STIRLING (Employment, Education and Training): I will clarify a couple of points. I thank the member for his general supportive comments. The review process will commence in January 2003 and report back to government by September next year. That will give government the ability to implement those recommendations that it can, in the first instance for school year commencing 2004. There has to be a process of time. It is a bit cute to compare it to something such as the school-based constable review, that is quite small fry compared to this. This is a very major review - all aspects of secondary education on the table. Advertisements will go out very soon so that the selection process has time, and we would expect to be up and running in January 2003.
In relation to other reviews going on inside the department, as a minister and wanting to make decisions on a whole range of matters in these areas, I want the information before me. If it is necessary to have a review to get that information, I will continue to conduct them.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I would like to place on record the action this government has taken on the Arafura Sports and Community Club. Far from acting in haste and without due diligence, as the Leader of the Opposition has claimed, this government responded to concerns raised by club officials and creditors earlier this year.
At that time, the Registrar of Associations, with the club’s concurrence, took action to appoint Ernst & Young to thoroughly investigate the club’s financial position. Ernst & Young advised the government that the club had been operating under heavy debt and interest commitments. Club creditors included: superannuation and wages entitlements of staff - $50 000; unsecured members’ loans - $25 000; loans from other sporting bodies, including the Disabled Sports Association and the Darwin Football Club - $65 000; a secured members’ loan - $234 000; and other creditors, including tradesmen - $154 000. The position of the club was eroded in April 2001 when it committed to around $160 000 in building and improvement work, apparently in the belief that the former government would provide financial assistance.
During Ernst & Young’s investigation, when it became apparent the club was at risk of trading insolvent, we appointed judicial managers, reducing potential legal exposure to the current office bearers. Ernst & Young managed the club until the end of September to maximise its financial position through the traditionally higher trading levels over the dry. By the end of August, the club was no longer trading profitably and its position was unsustainable. The judicial manager was obliged, in this situation, to move to have the club wound up.
The Arafura Sports Club has operated for more than 40 years in the Darwin community, providing facilities for the community and members alike. The demise of the club was a sad event for members and the wider community, and I can understand the disappointment, especially of long-term members and bowlers. However, unlike the CLP’s approach to these things, this government took a very responsible action through the appointment of a judicial manager. Without the intervention of government, the club would have been wound up by its creditors earlier this year, with a liquidator supplier selling assets and receiving first call on funds raised. The committee would have received no protection from trading insolvent and exposure to personal liability for the club debts. Bowlers would not have had the use of the greens for the past six months over the peak bowling season, the creditors would not have been paid out in full, and the interests of creditors like the Disabled Sports Association, club members and the entitlements of staff, would not have been protected.
When it was clear that the Supreme Court would order the winding up of the club, the government decided to purchase its land at fair value, as determined by the Australian Valuation Office, at $550 000 under the current zoning provisions. Far from profiteering, the government has moved to protect a community asset which was sold by the previous government to the club at the concessional price of $85 000 in 1996. The government has not yet made a decision about what we will do with the land; there are many different options. However, when we do, that decision will be a responsible one guided by the best interest of Territorians and any profit made will go back into bowling and to other community purposes.
In summary, this government has acted responsibly and has worked with the club for much of this year. The action which we have taken has ensured that all creditors can be paid out, and an asset which was sold to the club at a concessional price has been protected on behalf of the Territory taxpayers.
Mr BURKE (Opposition Leader): Madam Speaker, as the Minister for Justice and Attorney-General said, unlike the CLP government, the Labor government purchased a $1.4m windfall property gain for the cost of $550 000 and, in doing so, destroyed the ambitions and amenities of Territorians who had survived Cyclone Tracy but could not survive a Labor government when they had to make a decision with regards to the sports club. The degree of concern of those people is apparent to us and will be apparent, I imagine - I heard on the radio today that some of them intend coming to this Chamber.
I advise the Justice minister that the opposition is in possession of tapes of conversations that were held by the Chief Minister, by staff of the Chief Minister. We have the Auditor-General’s report, and we have our own avenues to investigate the basis of the government’s actions. I can tell you, in essence it is this: that the immediate liabilities of that club were as little as around $200 000 and, for as little of around $200 000, the government was not even prepared to stand as a second mortgagee, was not even prepared to do for that club what it itself will do now - now it has purchased the land - in bringing up the equity that that club had itself in the amenities - as little as the units that are there.
So it is a sorry saga, frankly. The people involved in that club want to know: are they going to bowl at that club in the future? That is a pretty simple answer that might be able to be provided by government. Will they be able to bowl at that club in the future, because the Chief Minister is on the record of giving them those promises. A day after attending the meeting with the club, they were informed by officers of her department that the caretaker of those greens would be sacked within days of the government finally deciding what to do. We have the sorry saga of three ministers - including the Chief Minister - making contradictory statements with regards to the actions of government and the future of that club. Those things will be interrogated in detail. The government has not conducted due diligence on this club, has acted hastily and irresponsibly …
Madam SPEAKER: Order! Your time has expired, Leader of the Opposition.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I would certainly like to see the Leader of the Opposition take a bit less overtime on each of his answers.
If you want to have a close look, and continue to have a close look at our decision - we are very pleased about our decision and we are very comfortable with it.
Mr Burke: We have had a close look.
Dr TOYNE: I can guarantee to you, if you want to play with this any more, some of the stuff that will come out will not suit you at all.
Mr HENDERSON (Business, Industry and Resource Development): Madam Speaker, I rise to brief members on the outcome of the Information and Communications Technology Forum held in Darwin on 3 and 4 September this year, and on initiatives which have commenced since, as a result of the very successful forum.
The forum was a significant moment in the history of ICT in the Territory, being the first time that the ICT business community had come together with government to plan the future of their industry. At the outset, I must thank all the people who contributed so much to the success of this forum, both from the private and public sectors. It was a real team effort and I know that my colleague, the member for Stuart, played a significant role in shaping the forum, and was very disappointed not to have been able to participate in the event itself due to a significant family illness.
There are four key themes that have come out of the forum. From a technical point of view the clear message from the meeting is that ICT is an enabling industry but that it is the development of useful applications and content that will drive the growth of ICT to include all Territorians. From a commercial perspective, the key messages are that we need to understand what we currently have, both with respect to ICT export business and intellectual property, and to leverage off that for growth.
With the role of government ICT business currently 25% of total industry sector turnover, it will decline proportionately over time and needs to be seen as a declining opportunity. In 10 years, 90% of ICT business needs to be business to business and business to consumer. For this to occur, ICT exports must be the big growth area. From a social equity point of view, the forum recognised that the disparity of access to ICT between urban and non-urban centres needs to be addressed. I am pleased to note from progress reports given to the forum from LGANT and ODN and others, that this issue is being addressed.
Indigenous people in remote communities are more than clients. The most difficult task for the ICT industry is to develop business relationships and business to customer relationship models that respond to the needs of indigenous people, both as customers and commercial partners.
Finally, in terms of industry development, the strategic planning for growth in the ICT industry, the forum discussed the need to produce, attract and retain appropriately skilled professionals who can participate in and drive growth of the NT’s ICT industry. If we do not do this the industry will not grow as it should
I note that the good work did not stop with the close of the forum. A combined ICT industry and government group has been formed and held its inaugural meeting on 9 September this year. The group comprises six ICT industry members, three NT government members: DCIS, DBIRD and OTD, and one Commonwealth government member, Austrade. The group aims to drive initiatives from the forum to allow the NT industry by creating benefits for Territorians. It will establish targets for industry growth, prioritise and steer joint industry and government agreed initiatives, and provide advice to the ICT industry via the Australian Information Industry Association and government via the Minister for Communications. This group is chaired by the NT Chair of the Information Industry Association, Jim Carew, and it will meet at least bi-monthly and report back to the ICT forum before the end of 2003. A further initiative is that Austrade has coordinated participation in an overseas delegation for the Australian ICT industry to Shanghai for the Australian Multimedia and Digital Effects Showcase from 12 to 15 November, and has invited applications for the NT ICT industry to participate.
In the wake of the previous government’s decision to outsource government’s ICT services, the challenge for our government, along with the industry, is to manage the costs of services provided to government and to work in partnership to leverage growth and industry development opportunities as a result of this spend.
In closing, I note that the recent ICT forum was the start of that partnership, and I look forward to providing further updates to the House on progress.
Dr LIM (Greatorex): Madam Speaker, I welcome the minister’s statement. I believe the ICT forum was a very successful one. I took the opportunity to duck in to a couple of sessions to listen to industry and government interact with the business at hand.
I believe the outsourcing of IT services by the CLP government has been a very good initiative that has allowed the growth of ICT in the Territory. It is one of the positive actions that we have taken to encourage the continuing growth of ICT expertise, particularly in Darwin. It is unfortunate that a lot of the activity has not transferred to our other regions as much as we would like to have seen.
I was a little disappointed that, while I was able to attend some of the sessions, that I was not invited to attend by the minister. It was something that the opposition has a lot of interest in and it would have been good to be invited to attend and to mix with industry. It is something that I believe I have some significant expertise in, and it would have been good to be able to rub shoulders with our ICT industry leaders in Darwin in particular. However, I did have the opportunity to meet with the people there and had occasion to make a couple of suggestions to the people privately.
Let me welcome the minister’s statement. I thought it was a very good initiative.
Mr HENDERSON (Business, Industry and Resource Development): Madam Speaker, I thank the member for Greatorex for his general supporting comments. This industry is vital for the future economic prospects for the Northern Territory economy. We really have to grow this industry in partnership with industry and, as I said in my statement, we are about 25% of government spend.
One of the key things that we have to do was acknowledged by the forum; that we do have to contain the costs so we can maintain the confidence of the people in the Northern Territory in the outsourcing initiative. I have always stood in this House supporting the initiative in concept but the attention to detail by the previous government was not there. We have seen significant cost blow-outs to the tune of about $10m as a result of that. We aim to rein those in. We will be working with the industry to lever economic growth and opportunities from that. It was a great forum. It was very well received and I am glad the member for Greatorex took the opportunity to attend some of the sessions.
Reports noted pursuant to Sessional Order.
Mr STIRLING (Leader of Government Business): Madam Speaker, I move on behalf of the Chief Minister, pursuant to Standing Order 93, to nominate Wednesday, 9 October 2002 as the next sitting day on which General Business will have precedence over the government business.
Motion agreed to.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I take this opportunity to table the regulations that accompany the Information Bill for debate today. I think honourable members have copies of those already, but I want to point out to them that this is inherent to the debate today. We will be looking at both the regulations and the bill itself.
Mr BURKE: (Opposition Leader): Could we have those distributed now, Madam Speaker?
Madam SPEAKER: Could they be distributed now, please?
Dr TOYNE (Justice and Attorney-General): Absolutely.
Continued from 14 August 2002.
Mr MALEY (Goyder): Madam Speaker, I place on the Parliamentary Record some of the opposition’s observations on the eve of the passage of the Information Bill (Serial 85) and the other consequential amendments which affect some of the related legislation.
I intend to do that by taking the honourable members to the FOI debate and make some general comments about that and, secondly, the Labor government’s response to that debate and some of the submissions that were made. Thirdly, I wish to take honourable members specifically to the objects of the Information Bill, and talk about the exemptions and also the enforceability of the bill and some of the appeal processes. Finally, I intend to make some specific remarks about the bill and the practical effect that it will have and the implementation of the provisions.
I can say from the outset that any criticisms about the mechanics or the drafting of the legislation should, of course, not reflect at all upon the Parliamentary Counsel. If the administrative lawyers have had some input into the drafting they are, of course, governed by the instructions of their political masters.
Probably the words with which most people are familiar with regarding the Information Bill, are the ‘freedom of information’ debate, FOI legislation. The entire debate has been poorly understood. I hope I am proved wrong on this, but I suspect that debate in the Chamber will be difficult because it is complicated legislation. To really understand and to debate it in a full and frank way, there has to be an enormous amount of work put in to understanding the mechanics and the effect that it is going to have.
I am not an administrative solicitor. I am indebted to the assistance I was given by a couple of members of the Administrative Lawyers Association of the Northern Territory. They were not, of course, acting on behalf of their association but, rather, just providing me with some direction and assistance in understanding the mechanisms which are contained in the legislation.
I suspect that the bill’s current proponents, the Labor Party, not only do not understand the legislation, but they are probably not interested in the real mechanisms or the merits or otherwise of the legislation and its practical effect. The FOI legislation is probably the ultimate political football in that regard. However, credit where credit is due: with a great deal of political skill, the Labor Party, my friends opposite, have certainly manipulated the debate very well. They have oscillated between free and open access to all information whilst in opposition, to the restrictive model which comes before parliament today whilst they are the government. I will say a little more about that later.
If we are to introduce laws of a similar vein as that contained in the Information Bill, as a parliament we should make sure that such laws are not heavily compromised ones which have little prospect of achieving their perceived goals. In some other jurisdictions there is, unfortunately, a carefully stage managed process that is more illusionary than real. We should, hopefully, through parliamentary debate into considering and reviewing what has occurred in other jurisdictions, learn from those mistakes and pull together what can be described as best practice legislation.
There have been some submissions and, certainly, some concern raised about the cost of implementing the legislation. I am not in a position to really debate in a constructive way the potential cost. We heard the Attorney-General say on radio yesterday that there is about $750 000 in the cost of the Office of Information Commissioner and perhaps the support staff at this stage. There are some figures which have appeared in the budget. However, at this stage there is no other material in the public arena which I can usefully take honourable members to regarding potential cost on the community of dealing with this legislation.
There is no doubt that open and accountable government is not cheap. From my reading, it seems that many commentators have discussed the issues of cost. Indeed, in New Zealand’s High Court, Justice Thomas made some observations about the cost to the community of the legislation. I take honourable members to that; it was published in a book by P D Finn, Essays on Law and Government, a Law Book Company book. At pages 182 to 227, there is a discussion about costs and the like and, at page 225, Justice Thomas is cited. I will read this into the Parliamentary Record:
And in his emphasis:
He goes on to talk about the cost of parliament and makes some other observations of a general nature.
The true cost of implementation of this legislation will be something this parliament will have to monitor carefully. Perhaps in a year or two, this Chamber will, through probably a review of the budget Estimates Committee, have to make a proper inquiry as to the real cost of compliance to the taxpayer.
I am informed that there were approximately 52 submissions from interested organisations who had an opportunity to examine the discussion paper, which was the draft bill, before it became the bill which has fallen to be considered by parliament today. An examination of the draft discussion paper/bill and this bill, reveals that in substance there has not been an enormous amount of change. In fact, it reveals there was little change. There were a number of submissions, and the Attorney-General in his second-reading speech talked about giving them consideration. Well, he certainly has not given them much consideration; if anything some of the exemption provisions have been amplified and made even tighter. I understand that there will be other comments made specifically about the changes that were made or not made a bit later on by other speakers.
If you really want to, you can look at the legislation and understand the rationale behind it. The starting point, of course, is trying to determine what the objects are. This particular piece of legislation has, quite conveniently in clause 3, ‘Objects’. It states that the objects are – and there a very noble type objects. I am not going to read them all onto the Parliamentary Record, but it talks about actuating a general right of access. It talks about making information available to the public and protecting privacy. Then, at clause 3(2) of the bill it goes on to say:
If you read through the act in a logical way, on a cursory examination, you will soon come to clause 7, and it really flies in the face of what the stated objects are. Clause 7 is headed ‘Nature of rights created by this act’. So we are looking for the rights which Territorians have:
(a) this act does not give rise to a cause of action or create a legally enforceable right; and
(b) a contravention of this act does not create criminal liability or make a person liable to be
prosecuted.
We have, it seems, in a clumsy way talking about giving members of the Territory community a right of access and then, a bit later in the same act, clause 7 specifically says that it does not create a legally enforceable right.
While we are talking about the draft, I had an opportunity to look at the submission made by the Ombudsman, Mr Peter Boyce, some time ago. Of course, many of the observations and comments he made about the draft legislation certainly apply to the bill which is before parliament today. If you have a look at page 3 of his written submission, where he is talking about the draft:
Remember, in terms of exemptions this particular piece of legislation is even more restrictive. He goes on to say at the bottom of that page:
The debate today should revolve around the issue of exemptions. I trust that members opposite - particularly the backbenchers - discharge their duty and obligation to carefully read the legislation, and to participate in an informed debate on the subject.
I am fearful that – and this is perhaps a more systemic problem – some of the backbenchers are all too often reluctant to speak up against the government or ministers, as this may create the impression of some sort of party disunity. That person then, of course, reduces their chances of becoming a minister or, potentially, a leader. What we get then is executive government and not a parliamentary government since the executive, which is the body corporate which is Cabinet, controls the purse strings and makes all the decisions. It is really an onerous duty, and one which should not be discharged lightly. Backbenchers, as well as the opposition, should carefully examine all legislation that comes before this parliament to ensure that only good laws are enacted for the people of the Northern Territory. Indeed, it was one of the pledges I made in my maiden speech, to ensure that I would do all that I could that only good law would be considered by this parliament. Indeed, the people of the Northern Territory deserve no less.
The objects of the bill are noble – I said that - and then the balance of the bill then goes on to focus on restricting the degree of access and making it clear that there are no rights. The restrictive golden threads which permeate the entire bill are also similar to the ones which the Ombudsman quite appropriately drew parliament’s attention to before the final draft of this bill was settled. We can take it from that, that this Labor government has deliberately included those restrictive threads into the bill because they were made aware of those concerns, those restrictions, by a number of submissions, not the least, of which came from the Ombudsman; he says it in his report. If I could just paraphrase a portion of it; he says that the failure to recognise the importance of the right to access is a major component of democratic government. The bill as it is currently, says it is not a legal right, but it is something else. It is some step down from a legal right to access.
There are just too many broad-based exemptions: the very powerful tool of exemption certificates is not able to be reviewed in any way - that is something which may be remedied if the government is open-minded enough to consider one of the amendments which the opposition will suggest; the exemption of a deliberative process; the negative focus on disclosure generally; the restrictive powers of the Information Commissioner; and the rigid formality of the complaint process.
History is a great teacher, and it is certainly no surprise to any students of politics and those who are well read, that all of the issues which we are considering today have, in one way or another in the past, fallen to be considered by parliaments in other jurisdictions, in other countries. Of course, the commentators - solicitors and barristers and academics with an interest in the area - have reviewed that process and made certain observations. We also have a number of journalists who have written reviews and articles on the effect, if any, the FOI legislation in that particular jurisdiction has had on their capacity to obtain material and do their job properly. By way of example, the Associate Professor of Law and Legal Studies at La Trobe University, Spencer Zifcak, in a paper entitled Thinking Clearly About the Right to Know, at page 39, where he was talking about Britain’s white paper on FOI – after reading this, I thought it only appropriate that it be put on the Parliamentary Record:
There was an article written by a journalist who is also, I understand, a solicitor. From the Australian Centre For Independent Journalism, the article is headed Still Too Much Trouble: FOI in Journalism. He deals with some of the problems journalists have endured trying to gain access to information. There was a national conference, it seems, where journalists considered, amongst other things, access to information, open and accountable government. The conclusion was this; at page 17 of the article:
I do not have to remind the member for Fannie Bay, of course, what was recorded in Hansard on 22 April 1999, but I can remind the other honourable members of this House, including the backbenchers, of course. If you have read the transcript, you have the then Leader of the Opposition on behalf of her party and, of course, the now government, saying things like:
It wasn’t just an off-the-cuff comment because a few moments later, the then opposition representative, the government, said:
Now, today really is that day. The proof really is in the pudding. This is the legislation which, according to the then Leader of the Opposition, would contain no exemptions, would be an awesome piece of legislation and would really put the Northern Territory in a category all of its own.
Unfortunately, what was said has not been carried into fruition. Even more disturbingly, and I certainly do not wish to play the man here, but the Attorney-General - doing his job promoting the legislation which the government is producing - yesterday on the radio advocated - he was talking to Fred McCue and endeavouring to promote the merits of the new legislation. The issue of exemptions was clearly something which the reporter, Fred McCue, was interested in. The learned Attorney-General said there is a mountain of government documentation and then, dealing with the issue of the Chief Minister’s capacity to issue an exemption certificate:
That is interesting: exceptional circumstances. He went on to say:
I thought, well, that is interesting, because I cannot recall reading the words ‘exceptional’ or ‘extremely exceptional’ in clause 61. It talks about the issuing of an exemption certificate, and if I can just read it on to the Parliamentary Record:
It goes on to give a couple of categories.
Reading the balance of that part, up to Part 5, reveals that there is no reference to the words ‘exceptional’ or ‘extremely exceptional’.
If a representative of the corporate body, which is the government, is going to promote legislation - which is indeed the government’s job to inform the community - then to infer that it contains some safeguard, ‘exceptional circumstances’, ‘extremely exceptional cases’, is misleading. It seems to be a deliberate untruth and calculated to mislead Territory people into thinking that there is something contained in this legislation, when there clearly is not.
Whilst I am talking about some of the minutiae of the legislation, if honourable members keep in mind the general objects of the legislation that are contained in clause 3, I can perhaps, in a summary fashion, touch upon a couple of the exemptions contained in Part 4: Part 4 - Exemptions in the Public Interest. Perhaps, for the sake of clarity, I make this point: in the second-reading speech when the Attorney-General was specifically dealing with the issue of exemptions, he was, in his usual fashion, just parroting out a speech which sounded like he had not read before. In any event, a copy of this was provided to me through the Hansard process:
Now we have the word ‘harm’, and we are talking about harm. I thought for a second he might be referring to clause 3, if they were exemptions for the purpose of preventing a prejudicial effect. Okay, so we have this – an exemption will apply if it is going to have a prejudicial effect – and we now have the Attorney-General using, in the second-reading speech, ‘the harm test of disclosure’. He goes on to say and he makes it even clearer:
However, clause 45 goes on to say: ‘Information is exempt under clause 44 if …’ and it has a number of examples. None of those subsections in clause 45(1)(a)(i) to (vii) have any reference to the term used in the objects - that is, of course, the purpose of preventing a prejudicial effect on the public interest - nor is there any reference to this cavalier phrase which the Attorney-General used in his second-reading speech about identifiable and clear harms. Rather, we have a number of categories which, if a public sector organisation can squeeze a piece of information into, will suddenly come and discover clause 44, ‘Exemption’. An example of that is the first one:
Executive body is defined at the end of that clause to mean Cabinet or the committee of the Executive Council.
So, the very core of some sort of administrative review of freedom of information is to ensure that, if a decision has been made, that the person who made that decision considered all the relevant matters. There is, in my view, absolutely nothing - unless there was a real and demonstratable harm - that should stop the raw material upon which a decision is made being available to the public. Obviously, the deliberation of the Cabinet is a different category, but the raw material upon which those deliberations are made should be made available to the public and be subject of this process.
If you read the subsection (vi):
Therefore, if you read that literally, that means that a briefing given to a minister on a particular subject matter - a briefing providing the raw data - and that minister was going to discuss that with another minister, that would automatically come within this scope of this blanket exemption - even if that information would not be prejudicial and not do any damage to the government, would certainly not be an identifiable and clear harm, and nor would it create a prejudicial effect on the public interest.
What I am saying is that, if you are going to have these blanket exemptions, there needs to be some very specific reference to it being the subject of the exemption, because of the specific prejudice or the specific harm. Then to say: ‘generally may or endorsed’, well, there is a use of the word ‘generally’. I suppose it is not ambiguous literally, but it is just so broad. If something was ‘specifically made or endorsed by an executive body’ well, fair enough, you could arguably say it is in a category which would need closer review before it is disclosed. But ‘generally may’? Once again, it is broad. It is difficult to find a piece of information which would not be capable of being covered by one of the exemptions contained in Part 4. Then subsection (viii) talks about the drafts of that particular information.
I am not the only person who has talked about making available the raw material upon which those decisions are made, and perhaps even the explanatory notes. The Ombudsman, in a very good report - and full credit to him, he is a very thorough researcher - says at page 13, and I will just read this onto the record from Peter Boyce’s report:
Then he talks about the New Zealand model which says that, effectively, documents should only be held to be exempt when they fall within certain specified criteria and then only if it can be demonstrated that their disclosure would result in demonstrable harm. So once again, it sounds like a play on words but this legislation is written in the negative. Rather than saying: ‘Okay, all information is available in the public interest and here are a couple of exemptions’, in my view it really says quite the opposite. It says: ‘Here is a blanket exemption and you can try and argue and weave your way through the provisions to get your anticipated and sought after disclosure’. The Ombudsman, at the bottom of page 13, goes through and quite logically argues the case why these particular broad-based type provisions are not effective.
Clauses 45(1)(a)(vi)and (vii) are provisions which were not in the original discussion paper and there has not been an opportunity afforded to some groups which are interested in discussing at length and giving an informed view on the effect that that wording will have. But people whom I have forwarded a copy to, and specifically drawn their attention to the provision, have asked quite logical questions. The clauses need to be made clearer. The asked questions like: why isn’t background information which is provided to a minister made public? We are not talking about the deliberations, we are talking about the raw factual material. The exemptions are broad and, in my view, certainly too broad.
The other provision which was the subject matter of a number of submissions and still causes some real concern to some members of the community - particularly those who practice in administrative law - is clause 52. One view put to me was that the entire clause should be repealed as it is just too broad and does not assist. If honourable members have a close look at clause 52 - I have some general comments before I go through it specifically. Clause 52 deals with preventing the disclosure of information which is to the very core of this whole process. Clause 52(1)(a):
That goes to the very heart of the decision-making process. What if those deliberations, that material, did not prejudice the public interest? What if that material clearly did not do any harm? To use the Attorney-General’s words which, of course, don’t appear in the legislation: ‘there is no identifiable and clear harm’, then why can’t that information be disclosed? There is absolutely no reason why it should not be.
For those honourable members who are following the debate, you have to read clause 52 in light of clause 50 which says:
And then in clause 51:
were disclosed. Then clause 52 goes on to assist the making of that decision under clause 50.
A practical example might be the recent review of the taxi licence system and scheme. What if a person who was aggrieved by the minister who made a decision in relation to taxi licences, made an application under this legislation, his argument being that he wants to know exactly what raw material went to the minister? He wants to know exactly what the recommendation that came from the public sector department to the minister was, and it turns out that a crucial piece of information was not before that decision-maker when that recommendation was made. That is crucial information. That is the type of information which this legislation should be giving to people who make the application.
Ms Martin: You do not understand. It would be; it would be available. You do not understand, Peter; that is the problem.
Mr MALEY: Well, I will be interested to hear the learned comments from the member for Fannie Bay.
As I said, I am just going upon what is written in the legislation, not the rhetoric, not what was said in parliament. It has clearly been demonstrated that little weight or reliance can be given to what is said by certain members of the government in parliament and, indeed, you cannot rely upon what they say on the radio.
That is a real and practical example. There would be no harm, there would be no prejudice, yet that person, potentially, would not be allowed to access that information because it would come within the category of clause 52.
Of even more of a concern is that we are talking about deliberations of a government department; we are not even talking about heading off to Cabinet or at the ministerial stage. We are talking about restricting Territorians’ rights to access information and the basis upon which decisions are made by a government department which may affect them or someone they know. It may not affect them personally, but it may be something that should be in the public interest, should be in the public arena and they have made an application to have that disclosed.
There is a new clause 52(5) that has been inserted in light of the submissions that were made and are contained, it seems, nowhere else but in the new bill. It says:
So, once again, where all these subsections are trying to amplify and explain what category of information can come within clause 50:
Ms Martin: He has only 55 seconds. Are you going to support it or not? Are you going to support it? We cannot give you extra time. You have wasted 45 minutes.
Mr MALEY: Well, it is part of the parliamentary process, and I am courteous to you when you speak, quite frankly.
Ms Martin: No, you are not.
Mr MALEY: One of the considerations in clause 52(5)(a) is it talks about:
Here we have enshrined in legislation some principle that, if you are higher in the ranks in the bureaucracy, then that is a consideration which would have some bearing on whether or not that information should be disclosed. I am not sure how the thousands of public servants feel …
Mr BURKE: Madam Speaker, I move an extension of time for the member to complete his remarks.
Motion agreed to.
Madam SPEAKER: I am mindful of the fact you have had 45 minutes.
Ms Martin: Say something. We have given you an extension, say something relevant.
Madam SPEAKER: Order!
Mr MALEY: Okay, well …
Ms Martin: Are you going to support it or not?
Madam SPEAKER: Order! Chief Minister, let him get on with it.
Mr MALEY: I have obviously struck a bit of a chord here.
So that is an example. If you go down to clause 52(5)(c), one of the considerations which has been enshrined in the act:
That is saying that secrecy is okay. The whole purpose of this act is to avoid any sort of pre-decisional considerations. The whole process is to make sure that people have access to the criteria which the bureaucrat relies upon in making the decision. This flies completely in the face of the whole rationale behind the legislation.
Then it goes on to say, at clause 52(5)(d):
Well, if there is a perception of bias, or certainly if there is actual bias, that is all the more grounds for that particular decision-maker not to be making that decision – decisions about ensuring that there is no perception of bias as well as ensuring there is no actual bias. As I said, I cannot think of an aspect of governmental activity which these exemptions could not be stretched to cover. Indeed, perhaps the Attorney-General could give honourable members an example of material which would be available as a right under this legislation, which these exemptions could not be extended to cover.
I am mindful of the time and I am indebted to the honourable members for that extension, but briefly, there is absolutely no logical reason why the Information Commissioner cannot look behind the issuing of an exemption certificate. Of course, the Chief Minister, at the time, will have to be personally satisfied that the material that is formally to be considered by her would come within the scope of one of those exceptions; and that decision itself is most certainly reviewable.
As to who should be the Information Commissioner, in other jurisdictions the Ombudsman is, I understand, one and the same. He also has the role of Information Commissioner, and that seems an inherently logical step. If you look at the role of the Ombudsman, and it seems the purpose as stated in the objects of this act are very similar and the rationale is similar; it seems logical to me that the Information Commissioner and the Ombudsman should be one and the same.
There is a concern about the lack of independence in terms of the five-year appointments. I know that is something which is taken directly from other jurisdictions, but it is a semi-judicial appointment and it is an important role. Perhaps some lengthening of that appointment period and as the Auditor-General, you get appointed for one term, and that is it. Just to ensure that there is, at least, the perception of independence.
In conclusion, the devil really is in the detail of this bill. There is a fairly complicated appeal provision which I have not taken honourable members to. However, I am happy to provide you with briefings if you want. There are also a number of raw exemptions which will lead to some frustration and delay and the haphazard provision of information. I suspect that, in reality, time will be the true test to see how this bill operates at a practical level.
The bill does not affect, of course, the bleatings of the then opposition, and the Labor government continues to mislead Territorians about the true effect of the bill, as recently as yesterday. I suspect the Labor Party minders will be working overtime to persuade any intelligent members of the media that the bill is anywhere near what they say.
I give this one final example: if you look at clause 124, the hearings are closed to the public; there is no right to representation in clause 123; there is no appeal except on questions of law to the Supreme Court under clause 130; and under clause 155, there is a specific exclusion, it seems, preventing review in the Supreme Court and also by the Ombudsman. So, here we have, potentially, a person who is not allowed to have a lawyer - perhaps it is a person whose English is the second language …
Ms Martin: How will they survive?
Mr MALEY: So you have this person not only having to run the gauntlet of the complicated procedures here, but they go into this hearing by themselves. There are no members of the public there, it is all in secret. It flies in the face of what FOI is supposed to be in its purest sense.
The opposition does have an amendment to the legislation, and we will not be supporting the legislation in its current form.
Ms MARTIN (Chief Minister): Madam Speaker, we had – what? The best part of 50 minutes and more from the member for Goyder. In that 50 minutes, very sadly, we did not have one relevant comment to this bill.
We had someone who comes to this parliament as a lawyer, who should be able to read and understand legislation a bit more clearly than this; and was simply misinterpreting legislation all over the place. The interesting thing is that here is the shadow Attorney-General who has not once asked for a briefing – not once asked for a briefing. It is a real indictment on the opposition and the Opposition Leader that you have a shadow Attorney-General who comes in here, takes extra time - over 50 minutes - has not had a briefing, and simply makes mistakes about what this legislation is about.
It is very sad, and is a real indictment on what the opposition is doing about this bill, that we should have this as the first performance from the opposition, talking about a very important bill - not only ill-informed because he has not had a briefing, but simply wrong on how he is interpreting the legislation. So, we have a particularly Maleyesque, Goyderesque interpretation of the legislation, and simply: it is wrong, wrong, wrong.
I hope at least there is going to be somebody else from the opposition who is going to speak on this, because we now have the position where we have an opposition who, for 27 years in government - 27 years - never introduced freedom of information. Now we introduce freedom of information …
Mr Burke: We have a government that cannot even draft their own without adding more exemptions. You couldn’t even put together your own legislation, you used ours.
Ms MARTIN: … freedom of information legislation …
Mr Burke: And then put in more exemptions. What hypocrisy!
Ms MARTIN: Madam Speaker, we have a government that has made a commitment to introduce freedom of information. Here we have excellent legislation; legislation that has a balance between open, accountable government and access to information …
Mr Burke: You should not be speaking, you’re on the Hansard record.
Madam SPEAKER: Order.
Mr Burke: Don’t take any notice of anything I say on the Hansard record, I’ll change my mind next week.
Madam SPEAKER: Leader of the Opposition, order!
Ms MARTIN: Madam Speaker, we are getting a very rude response here from the Opposition Leader - very rude. This legislation, which gets that balance right and is excellent legislation, and we have the hypocrisy from the Country Liberal Party …
Mr Burke: That’s the balance between no exemptions and more exemptions is it?
Ms MARTIN: If you go back and read the Hansard you will see the context of that, Opposition Leader. You will see the context of that, and that is not what was said. It had a different context, and we were talking about the introduction of a bill by the Opposition that had exemptions, quite appropriate ones. But it was you, with your pathetic little privacy legislation you were promising, saying that is all Territorians wanted: ‘Territorians did not want freedom of information they wanted my privacy legislation’. That is what the argy-bargy in the House was about and don’t be ridiculous. I had a bill that had proper exemptions in it and this bill likewise, like every other government in the country, every other parliament has proper exemptions; proper exemptions that are defined, they are limited, and they are appealable. They are appealable to the Information Commissioner.
To just demonstrate the ignorance of the member for Goyder, he said whatever clause it is, if you do go to an appeal it is not a public process, you do not have the community there; we do not have the community there. Of course, if you are discussing whether something should be made public or not, why should you have the public there when the discussion is under way? How ridiculous, how stupid! How absolutely stupid, and demonstrating you cannot test public interest if you have an open hearing. If it is not in the public interest to release it, you have had that discussion in public already – how ridiculous!
If we had a shadow Attorney-General who understood the legislation and who had even asked for a briefing - not one member of the opposition has asked for a briefing - and is standing in here and I expect we are going to hear more of the same …
Mr Burke: You don’t need a briefing on this stuff.
Ms MARTIN: … making ignorant comments. Well, you do not understand the legislation and we had 50 minutes from your shadow Attorney-General not understanding the legislation - not understanding it. We gave support in an extension of time to see if he might; and we still did not hear it.
Members interjecting.
Ms MARTIN: Did the shadow Attorney-General talk to the Ombudsman? No. Did the shadow Attorney-General even discuss with the Ombudsman about the current legislation? No. We have a very, very ignorant and poor performance from the opposition on this very, very important bill.
My government is very proud to be able to fulfil this election promise; a very important election promise to introduce legislation to provide access to information and protect the information privacy of Territorians. We are very proud today. The Labor Party has spent many years trying to convince our predecessors - and failed - that this legislation was needed and wanted by Territorians. Every other jurisdiction in Australia has legislation like this but, for too long, the Territory was denied the right to this information. The Country Liberal Party, for reasons best known to itself - and we never really understood except it was a secret of an unaccountable government - has always been opposed to this legislation. The former Chief Minister said repeatedly that he did not believe this legislation was necessary. Let us quote him, February 1999:
He was talking about freedom of information: ‘I certainly don’t believe that’s what Territorians want and I don’t accept it,’. The former Chief Minister and now the Leader of the Opposition said in 1998 - let us go back a year and quote him:
In this one - the absolute cynicism of the CLP - he went on to say in this same quote:
Meaning Territorians:
Last year says it all. The people of the Territory did pass judgment on the inactivity of the previous government. The people of the Territory voted for change; they voted for a more open and accountable government, one that believes in people’s right to understand the process of government and access to that information. That is why we have brought in a raft of changes to make the Territory a better governed jurisdiction with more accountable and transparent procedures.
Among our major reforms has been financial management reform. We recently prepared our first Territory budget under the new Fiscal Integrity and Transparency Act …
Mr Burke: 3000 reviews.
Ms Carter: Estimates!
Mr Burke: Economy going down the gurgler.
Ms MARTIN: Have they finished, do you think, Madam Speaker?
This means that, unlike in previous years when the budget was prepared in the Treasurer’s office, we have had a fully accountable and transparent procedure for which CEOs take full responsibility. There have been major changes to the budget related papers so that they are presented in a far more informative and accessible format, and meet accounting standards that apply in other jurisdictions at state and federal levels.
We recently transformed the budget scrutiny process by introducing, for the first time a proper Estimates Committee procedure. What this means is that ministers come before a committee of the parliament and answer for each and every portfolio on the public account. While we still need to refine the process further, it is generally acknowledged by parliament and the community at large as a vastly improved process than we had previously. For the first time CEOs and senior public servants were able to assist with a full response to parliamentary questions.
We also introduced many reforms to the parliamentary process to improve public scrutiny, such as televising Question Time and bringing forward debate on legislation earlier in the day.
Freedom of information is another of the major planks of our reform agenda, and is one that Territorians have embraced enthusiastically. The government has been very interested in comments made in the public consultation period and we’ve made amendments to the bill, particularly in the areas of retrospectivity and exemptions. Retrospectivity has increased from five to 10 years, and the ability to issue exemptions has been tightened by removing that role from government agency CEOs and placing it with the Chief Minister. In terms of retrospectivity, for information relating to a person, it goes back as far as self-government. So, as far as the records are there for personal information, it is open, it is accountable.
This is an historic day for Territorians. From this day forward, we will have the same rights as other Australians to government information. That is important to recognise: from this day, Territorians will have the same rights as other Australians to government information. The Leader of the Opposition, only four years ago, said: ‘Territorians do not want that right; they do not need that right, and they trust their government’. We see how wrong he was.
Let us look briefly at what this historic legislation will do. First, it provides for public access to information held by the public sector. It also provides for people to correct personal information held by the public sector that may, for various reasons, be incorrect or inaccurate. It also provides for responsible collection and handling of personal information by the public sector and provides appropriate records and archives management.
The bill also sets up an independent statutory officer, the Information Commissioner, to oversee the processes of privacy and access. Again, an appalling comment coming from the member for Goyder, our shadow Attorney-general, saying: ‘Maybe it sets up the perception of independence’. What a load of rubbish! What a cynical CLP attitude! This is an independent officer, set up in a statutory way under legislation that we are now discussing. The best the shadow Attorney-general can say is: ‘I think it might set up a perception of independence’.
The right of access has limited exceptions and exemptions and we have worked hard to make sure that this is the case. There must be some exemptions to protect the confidentiality of some processes of government. The opposition has had a few things to say about these exemptions. It is hard to reconcile the current attitude of the opposition with the former Chief Minister’s statement in April 1999 that, and I quote it again:
Mr Burke: How about commercial-in-confidence information you said you would remove?
Ms MARTIN: Prejudice security and law enforcement. So the opposition would like public access to information that would prejudice security and law enforcement for Territorians. Is that what you are saying? Is that a good idea? Is that what you mean when you say: ‘You have too many exemptions’?
Madam SPEAKER: Chief Minister, direct your remarks through the Chair, not to the opposition. You know that.
Ms MARTIN: Sorry, Madam Speaker, I was severely baited by what they said before. No one except our opposition who, in a gross act of hypocrisy, would never introduce FOI, and are now saying everything must be available; there is no need for any exemptions. Talk about the 180! No one could dispute the needs for these exemptions; they follow other jurisdictions throughout Australia. There are also some exemptions that would protect information that would hurt inter-governmental relationships - quite appropriate - and an unreasonable interference with an individual’s privacy for business undertakings.
Mr BURKE: A point of order, Madam Speaker! The Chief Minister is actually misleading the Chamber by suggesting that the opposition is asking for FOI with no exemptions. I suggest she either withdraw that or apologise for her incompetence in deliberately misleading.
Madam SPEAKER: Leader of the Opposition, you will have a chance to respond to that comment when you rise in the debate.
Ms MARTIN: Madam Speaker, there are also some exemptions that would protect information that would hurt inter-governmental relations and an unreasonable interference with an individual’s privacy or business undertakings.
The power to issue exemption certificates may be utilised to protect particularly sensitive information and, in this legislation, may only be exercised by the Chief Minister over Cabinet and Executive Council information, security and law enforcement matters, and privacy and cultural information - quite appropriately. If you look at the Western Australian experience, they have had that part of legislation in for three years and it has never, ever been used. So it really is an exceptional circumstance.
The entire bill contains a fine balance, and a very appropriate balance, between allowing access to what is in the domain of the public’s right to know, with the need for privacy and confidentiality over some matters of government and state. I want to thank my Attorney-General, Peter Toyne, for his energy, commitment and enthusiasm in getting this legislation into parliament and fulfilling our election commitments. I also want to thank the Department of Justice and officers in government agencies who have worked so hard on this bill. It is always difficult singling anyone out, but I would certainly like to thank the Department of Justice’s Sue Oliver for her unstinting work to this legislation. Finally, I should thank the people of the Territory who voted for FOI and who have worked with us to make this legislation better.
Madam SPEAKER: Honourable members, I lay on the Table a Bible presented to me by the Reverend Tony Davis, Minister for Frontier Services of Alice Springs, upon completion of the Last Camel Train journey from Oodnadatta to Alice Springs Telegraph Station as part of the Year of the Outback celebrations. The Bible was accepted on behalf of the people of the Northern Territory as a reminder of the dedication and commitment of the padres who endure much hardship in bringing comfort and support to those who live in our vast inland.
We must remember that Oodnadatta was the base for the first AIM patrol padre in Central Australia, Padre Robert Plowman, and Alice Springs was the half-way mark in his epic journey travelling across his parish of 100 000 square miles.
This Bible travelled on the Last Camel Train, a journey that honoured all those who travelled inland Australia by camel. The inscription in the Bible presented to me is from the book of Joshua in the Old Testament and I would like to record it for you:
Members: Hear, hear!
Continued from earlier this day.
Mr ELFERINK (Macdonnell): Madam Speaker, I also speak in relation to the Freedom of Information Bill which comes before this House today for our consideration. Freedom of information is certainly not a new concept to this Chamber and, in the past, I have argued against the Freedom of Information Bill which was put before this House by the then Leader of the Opposition - if memory serves me - Maggie Hickey.
One of the concerns that I raised the last time we discussed freedom of information in this House was the process of using exemptions to make freedom of information anything but freedom of information, and often freedom from information. I have to say that, on this occasion, I am not entirely convinced this act is substantially different from the particular principle. However, I do want to discuss some aspects of freedom of information before I go on.
Freedom of information is part of what is colloquially known in legal circles as the new property, and what new property refers to is not like old property: cars, houses, chairs, tables, those sorts of things. The new property has a body of the administrative law which is the possession of a person which is capable of being owned but is essentially intangible. A driver’s licence is an example of the new property - not the little plastic thing with your photograph on it, but the actual licence itself; it is an intangible thing, it is merely permission. Information is seen in that light. There are certainly good arguments for the law surrounding new property because new property has developed quite substantially over the last 50 years or so as a concept.
The reasons that has occurred is because the size of government has increased substantially over the last 50 years or so, which means it is far more invasive in our everyday lives than the governments of old used to be. Indeed, if you look at the Commonwealth parliament’s legislative program of the first 20 years, it actually fills up a bookshelf of about 12 inches thick. However, I am sure that if you look at the Commonwealth parliamentary legislative program for the last 12 months, it would take up three yards of a bookshelf. So, that gives you an idea of the amount and the volumes of legislation and the amount of intrusion into everybody’s lives in a daily process that government does as a matter of course. There may certainly be very many good reasons why government chooses to do so. The philosophy of how society is managed has certainly changed in the last 50 years. Then freedom of information then becomes part of that process of a philosophy of change.
However, the idea of freedom of information can be visited in documents such as the Australian Law Reform Commission and Administrative Review Council’s discussion paper 59 where freedom of information is outlined as a product of democracy. The process of bringing freedom of information is a process of bringing open government. Seeing that government is far more invasive than it used to be, we have to provide information to the people and the community of Australian.
I have found researching freedom of information particularly enlightening on this occasion, as I have done so far more thoroughly than I have done in the past. I am prepared to be persuaded that, perhaps, changes need to occur. Indeed, the discussion paper that I have already quoted said that in a democratic society there is also a strong emphasis on accountability. This is indeed a democratic society in which we live, and there must be that strong emphasise on accountability. That is exactly the position that the then Leader of the Opposition, now Chief Minister, was coming from when she announced in this House that there should be freedom of information legislation which was completely devoid of exemptions. We have heard through interjections today that that is obviously unreasonable, and it is. You cannot expect to have freedom of information legislation without certain exemptions built in. I will return to the exemption shortly. However, I will argue that if you are going to do it you must try to do it properly.
What we have had from the Attorney-General here before us, is what he calls the great freedom of information great leap forward. The Attorney-General wants to be able to go to the next election saying: ‘We are the government that introduced freedom of information; you are now free to received information from the government that the government holds on you, and you can also have under this piece of legislation your privacy protected’. So what we basically have happening is a government taking us on the great leap forward, so they say: ‘This is our piece of legislation and here comes our great leap forward’, and they have actually gone that far.
The process for trying to bring forward an open, honest and accountable government - which is the mantra that they members opposite chanted prior to the last election - was that they were going to bring forward a freedom of information act that could be trusted and had real teeth in it. I remain cynical about that after having read the bill before this House.
If we go to the bill itself - and I do not intend, in general ways, to drill down into the bill because we do not have enough time and that is what the committee process is for, should we end up in committee - I point out that the position of the government on this bill does not appear to be contrary to what I have been talking about. Indeed, when we look at the objects of the act in clause 3(3)(b):
The thrust or the object of the act is to try and demonstrate that the process is open, and that we want to, within reasonable parameters, be able to give out as much information as the public wants. But this is where we have to start asking questions: what are reasonable parameters? Basically, the process that the government is coming to us with in this bill is that we will have the right to ask for a search; then we will have a decision as to whether or not we will get the information that we are after. Then we will have a process of complaint in terms of the fact that we are not happy with the decision that we have been given because, for one reason or another, the information we are seeking is not forthcoming. Then we are pushed into a process of mediation. If we are not happy with the mediation of the government department, we then take the next step into the commissioner’s hearing process. Then there is a very limited way that we can then appeal to the courts if we are not happy with what we have received through the decision-making process. Now, the court process is extremely limited under this freedom of information bill, but I will return to that as well.
We then come to the public interest test. I thought to myself: ‘Gee whiz, where do we get the public interest test in relation to the exemptions?’ These are the processes of getting applications for searches and the government saying: ‘No, you cannot have this piece of information because it is not in the public interest’. Of course, we have the famous letter from Paul Keating to Lois O’Donohue which was mentioned the last time this came up. Basically, by the time the freedom of information process was finished with it was: ‘Dear Lois, signed Paul’, and everything else between had been blanked out. So that is an example of how the freedom of information process has, unfortunately in the past, not been as free and as open as we would like it to be.
Indeed, when I read the legislation that is before members at the moment, we have the issue of the public interest being raised in clause 52, if memory serves me correctly, which are the grounds that people can turn their attention to in overturning or refusing to give information. I turn to page 103 of Douglas’ and Jones’ Administrative Law which deals with, in general, the processes of freedom of information and public interest tests - public interest tests which allow for consideration of public interest in favour of disclosure. In truth, Douglas and Jones are talking about the federal Freedom of Information Act; however, it is useful as a guide as to what are public interest tests in this case.
The first provides for the disclosure of a document which would otherwise be exempt because it falls within a particular category of exemption, where there are matters in the public interest that outweigh those against disclosure. These are documents affecting relations between the Commonwealth and the states, financial property interests of the Commonwealth, or documents concerning certain operations of agencies. These are specific sections in the Commonwealth act, but you could template these public interest arguments on to the Territory legislation without a great leap of imagination.
The second type of public interest test is the deliberative process exemption, and that is certainly mentioned in clause 52(5).
There was a third type of public interest test, which is basically the one that is implicit in personal privacy. Indeed, this is something that the Chief Minister has referred to, and it was also in the legislation that was drafted by the former government, as I understand. They had already set the wheels in train.
It becomes very interesting as you start to drill down into what Douglas and Jones had to say, because they quote a case called Howard v Treasurer of the Commonwealth of Australia (1985), 7 ALD 626, Justice Daley’s decision. In that case, Justice Daley creates what are called the Howard Factors. For the sake of the debate before the House today, I turn my attention to the Howard Factors. It is interesting because I believe that the draftsman of this legislation was reading Howard at the time that they put the legislation together. I will give you an example – clause 52(5)(a), and I quote:
And the Howard test is: the higher the office of the persons between whom the communications pass, and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed. Clause52(5)(b) from the bill:
The Howard test mark 2:
Clearly, we have a draftsman who was relying very heavily on the Howard test in Howard v The Treasurer of the Commonwealth. That is not necessarily a bad thing. This is by no means a criticism of the draftsman but, intriguingly, where there are five tests in Howard, the government gives us seven. So I have marked out through the different tests, and the wording is almost exactly the same, so it is very easy to separate out the different tests that we are talking about. The ones that are left over, when you go through the bill, are clause 52(5)(d) and (e), and I quote (d):
I would like to know from the Attorney-General where this extra subclause has come from. There may be a very good case on record that I am unaware of that demonstrates that there is good reason to have this particular subclause in there. Indeed, I think that decision-makers should be protected in terms of the decisions they make. It is not one of the Howard tests, but I do not think there is anything particularly dark or foreboding in that particular subclause.
However, I now turn my attention to 52(5)(e):
‘Mischievous interpretation’ – now, I am not entirely sure what that means, and I am a little confused as to exactly what ‘mischievous interpretation’ may be interpreted to mean. Looking into the definitions under the act, certainly ‘mischievous’ does not appear there, and mischievous could mean any number of things. Mischievous could be a reference to unlawful and, in that case, perhaps that would be a particularly good subclause. Indeed, perhaps the word ‘unlawful’ should be the word substituted there. I would encourage the Attorney-General to turn his attention to that. But, no, I think the word ‘mischievous’ is much, much wider in terms of interpretation than simply the lawfulness or otherwise of a particular recipient of information, or the lawful intention or otherwise. Despite the cluckings of the Chief Minister, Attila the Hen, the fact of the matter is that the …
Dr TOYNE: Madam Speaker, a point of order! I would ask that that be withdrawn. He is referring to the Chief Minister as …
Madam SPEAKER: Member for Macdonnell, withdraw that remark. But be careful.
Mr ELFERINK: Madam Speaker, I withdraw the remark - very sensitive that they are. I am actually trying to draw the attention of the parliament to this particular issue.
The fact of the matter is that, if the interpretation of mischievous is to mean that we could be, in some way, embarrassed by the information that is received by the recipient - that is therefore mischievous, therefore we are not going to let the information go out - I wonder how consistent that is with the objects of the act. The question I ask is: is it at all consistent with the objects of the act? If we read clause 3 in terms of the objects of the act; no, it is not.
The government is introducing freedom of information legislation into which they are building the processes already of being able to break away from their own accountability. If they think that the information that goes out is going to be, in some way, mischievous – that is, embarrassing to them or used mischievously - the journalists will not be able to access that information, the opposition will not be able to access that information and much more importantly – much more importantly - the public of the Northern Territory will not be able to access that information.
So it is now a judgment call by the bureaucrat - whomever that may be - in terms of what is mischievous and what is not mischievous. Remembering that the final power of veto in this legislation does not rest with the bureaucrat but the Chief Minister itself, then the politicisation of this act is not only possible, it is likely - dare I say, almost inevitable. I am certain that the tick and flick sheet that the Chief Minister will have on her desk in saying: ‘That goes through, that does not, that goes through, that does not’, is going to somehow miraculously favour the government of the day. It is an astonishing thing. Is it one of the tests in Howard? ‘I will check it. Oh dear, no it is not’. Mischievousness is not a test in Howard, so I would ask the Attorney-General to turn his attention to that particular issue.
Now we have to understand how the decision works. The processes: now that I have my application in - I want some information out of the government and I get told: ‘No, you cannot have it’; because one of the exemptions I cannot have the information. There may be a good reason for that. So, what are my options for review? Well, according to the minister, I am now supposed to go into mediation with the department concerned.
This is interesting because this FOI legislation does not operate like any other FOI legislation in the country. The reason for that is that it does not have a surrounding appeals process built into it which is independent of the system itself. If we look at the Commonwealth example, there is the Administrative Decisions (Judicial Review) Act as well as the Administrative Appeals Tribunal Act, which are two options which may be considered for somebody seeking information under the federal legislation. That, of course, deals with federal issues.
However, unfortunately, in both the Administrative Decisions (Judicial Review) Act, as well as the Administrative Appeals Tribunal Act - which is both of those two structures I just referred to - the problem is that they do not extend to operation within the Northern Territory. It is in the definition of both of those pieces of legislation. Consequently, there is no appeal process available under the Administrative Decisions (Judicial Review) Act; there is no appeal under the Administrative Appeals Tribunal.
What appeal process is there available to a person who is unhappy with the decision of the decision-maker in a freedom of information application in the Northern Territory? Well, mediation. Then the person goes and says: ‘I want to have mediation with the decision-maker responsible’. You cannot question the certificate; the certificate is absolutely beyond question. Clause 63 it is quite clear on this. However, it is worth visiting:
government information.
Stop, end of message, that is as far as it goes.
So I cannot question the certificate. I can be told: ‘You are not getting the information you want and you are not allowed at law question the certificate itself’. So what exactly am I allowed to do? Well, what I am allowed to do, without my lawyer, is go up to the government department and seek redress through mediation process. So we all sit down, group hug, have a quick talk and at the end of that we are not happy. So I am not happy with the fact that I have been given reasons for a decision, but I cannot question the certificate, so I want to go one step further. So I go to the commissioner. Now the commissioner is a strange and weird and wonderful beasty, and I would love to hear a few more details from the minister as to how he envisages the commissioner, or the office of the commissioner, is going to work.
I am not entirely sure what the powers of the commissioner are. In clause 87, functions of the commissioner, give a whole raft of functions as to what the commissioner can do. I am not going to read out the whole clause but, for members elucidation, I will read out a couple to give you a flavour of the process Clause 87(1):
(b) to promote within public sector organisations an understanding and acceptance of the
principles of freedom of information;
(d) to provide advice and training for the public sector organisations on freedom of
information …
Etcetera, etcetera. And those are not necessarily bad functions. In fact, I would have hoped that the commissioner would pursue those functions.
However, where is his power to make an order in relation to making a decision after he has held an inquiry for an unsatisfied customer? The closest I can come - and I am prepared to be corrected on this - is that clause 120(1):
Which is a complaint process:
That is not a particularly strong power in terms of what the commissioner may and may not do.
This then takes us to the point that I am most concerned with regarding this legislation. Let us say that I am not happy with the commissioner at the end of the day. Now, a commissioner acts as a quasi-administrative appeals tribunal - except I think that his powers are fairly limited and he is bound in some ways by the limiting aspects of this act. But there are, in the system that we have in western law, an idea that you can actually appeal to a court - some body outside of the executive arm of government, and bearing in mind that the commissioner remains within the executive arm of government - where you can turn to that court and say: ‘I need succour, I need some sort of results from the court because I am unhappy with the process that has been available to me’.
This is the difficult part in this legislation. There is no criminal prosecution that flows out of the limits of the legislation other than those sections which specifically say these are prosecutions. Therefore, if the government flatly refuses to send out any information in breach of its act, no criminal prosecution flows from it.
No process other than a question of law itself can be brought to the Supreme Court, so the facts cannot be examined by the Supreme Court, only a question of law arising out of this act. That means that the Supreme Court opens up the problem says: ‘Um, this is a question of law, this is my decision’, and then sheets it straight back to the commissioner so that he can make whatever decision he does not appear to be empowered to make under this legislation.
So, what about the court reviewing the whole process? This then takes me to clause 155 in Miscellaneous, buried deep down in the act, which says:
(a) no person or bodies is entitled to investigate, inquire into, review or otherwise call into
question an act or decision of a public sector organisation or commissioner under this act;
and
(b) no proceedings for an injunction, a declaration or an order for prohibition or mandamus are
to be brought in relation to an act or decision of a public sector organisation or the commissioner
under this act.
This section says to me - a member of the public of the Northern Territory - that I cannot go to a court and get an order from the court saying to the government: ‘Government, I want you to go through the process of this act’. I cannot force the government to do anything through a court process. I cannot get a writ of mandamus; which means that I cannot get a court order preventing the government from doing anything, injuncting the government from doing anything, or even to make the government do anything. This means that the Attorney-General is now coming into this Chamber, with his responsibility under section 6 of the Self-Government Act, to pass legislation for the good governance of the Northern Territory, but he is not prepared, in any way, to expose any government department to do its job under this legislation.
That clause 155 is so in breach of the good governance of the Northern Territory that I would suggest there is possibly a case - and I am not a lawyer by any stretch of the imagination - for clause 155 being ultra vires. If not, it is certainly in breach of clause 3, the objects of this act. This act seeks to provide open, honest and accountable government, but there is no way I can get a court, in any function or capacity, to force this government to do anything.
It has a commissioner who, unfortunately, has been given an education role but no apparently real powers arising out of this act. It has a process from search/decision/complaint/mediation through the commissioner’s process, and a very limited question of law process for the courts to go through which all takes time, and no time limits are built into this. If I start with a search now, when will I be able to get a result? Two, three years time? Will that be too late?
I also note very quickly that the minister, at the very last moment today, drops his regulations for this legislation on the Table. They are down here somewhere in amongst the bits of paper. The problem with freedom of information is that it is extremely expensive to access some types of information. If you ask for a fairly wide search, you are going to be charged $25 an hour - according to the Attorney-General - for somebody to go out and do the search for you, and every copy is going to cost me 20. There are cases where freedom of information searches have come back with bills in tens of thousands of dollars. How are Mr and Mrs Average going to possibly afford a larger search? The fact of the matter is that they cannot afford such a search.
This freedom of information bill is part of the cynical process that I used to complain about; and the cynical process is that if you are prepared to do this, then do it properly. This government has the mandate as a result of the last election to govern the Northern Territory. I would never dispute that; I am a great believer in the democratic process. The fact of the matter is that they bring this bill before this House claiming to be bringing freedom of information and open and honest and accountable government to the people of the Northern Territory. What they will have leading up to the next election is freedom of information legislation but, unfortunately, it is not going to go a huge distance.
However, considering that they have the mandate they have, I will generally support the thrust of this legislation. I believe there are some amendments in terms of what they are planning to do in the committee process, and I would urge the government to visit those amendments, as I understand they will be circulated. I would urge the government, in line with the objects in clause 3, to allow those amendments to occur so that they can have a better act which is not halfway as cynical as this legislation here.
Ms SCRYMGOUR (Arafura): Madam Speaker, I would like to make some comments today on the submission made by the Ombudsman on the draft information bill; a submission relied on heavily by the member for Goyder in his speech today.
First, let me place on the record that the Ombudsman’s submission was supportive of the privacy and records management aspects of the bill, describing them as ‘well structured’. In particular, the records management aspect is described as ‘cutting edge’ and representative of best practice from an Australian-wide perspective. The Ombudsman did make a number of comments on the FOI component of the bill. However, I am pleased to be able to report that many of those comments were taken up in the final bill. Maybe the member for Goyder should have checked, or sought a briefing on the bill we are debating today.
Let me comment on some specific issues raised by the member for Goyder. He commented on clause 7 of the bill based, no doubt, on the critical comments of the Ombudsman in his submission. The Ombudsman said he thought clause 7 deliberately attempts to reduce the significance of the right to access, and hence its importance in the process of democratic government.
Maybe the member for Macdonnell should stay in and listen to some of this, because they stand up and I think some of these things are deliberately to mislead the public. However, this displayed misunderstanding of the effect of clause 7: that clause simply made it clear that the act is not intended to create any independent course of action, such as a tort of privacy for which someone might sue or be sued. FOI is not about creating new courses of action for more litigation. It is important to understand that the clause does not diminish the statutory right of access created by the act itself. This is made clear by an addition to clause 15, Right to access government information. It reads:
Clause 16 confers the same right on an individual to access their own personal information. It is no different, in effect, than the provisions in other jurisdictions that also confer a right of access, but limit that right to that particular information act. Again, I say that maybe the shadow Attorney-General should have sought a briefing.
The Ombudsman was also concerned that the exemptions were broad-based and do not make the public interest test the overriding central core to the legislation. However, all the exemptions in the bill are based on a public interest test; they are not blanket exemptions. However, to ensure there is no misunderstanding, the final bill has been amended to make this absolutely clear. Let me quote from the relevant parts of the objects and purposes of the bill:
(1) The objects of the act are -
(a) To provide the Territory community with access to government information by -
(i) making available to the public information about the operations of public sector
organisations and, in particular, ensuring that the rules and practices affecting
members of the public in their dealings with public sector organisations are readily
available to persons affected by those rules and practices; and
(ii) creating a general right of access to information held by public sector organisations,
limited only in those circumstances where the disclosure of particular information
would be contrary to the public interest because its disclosure would have a prejudicial
effect on essential public interests or on the private and business interests of persons in
respect of whom information is held by public sector organisations;
To ensure the shadow Attorney-General understands this important legislation, let me give some examples where disclosure would not be in the public interest. The exemption in relation to security and law enforcement, for example, covers cases where release would endanger the life or physical safety of a person, or prejudice the investigation of a breach of the law. These are clear cases of circumstances where it would not be in the public interest to release information.
The Ombudsman was also supportive of the New Zealand FOI legislation. The Ombudsman’s submission suggested that a public interest test similar to that within the New Zealand legislation would be the most appropriate premise upon which to proceed. However, our Information Bill, in fact, proceeds on an almost identical basis in terms of applying a public interest test to exemptions. I would also like to point out that the New Zealand legislation, like the bill we are debating today, identifies absolute exemptions. They are referred to as conclusive reasons for withholding information.
The Ombudsman’s submission also made a number of valuable points about the exemption certificates which, again, have been taken up in this bill. The Ombudsman was critical of the ability for the certificate power to be delegated to the CEO of an agency. This has been changed in the bill. Now the power to issue exemption certificates lies solely with the Chief Minister. As members have already heard, this is appropriate. The powers will be used rarely, and it follows the WA model where there has not been the need to issue a certificate. The draft information bill has been formulated and then followed by taking into consideration the vast amounts of previous work that has been produced on FOI, both in Australia and overseas.
Mr Rick Snell, a national expert on FOI and an academic based at the University of Tasmania, has commended the government on the amendments made to the bill following public comments. It is a pity that the member for Goyder did not seem to be able to catch up with those critical changes.
I am pleased to see that Territorians will finally have access to a state-of-the-art freedom of information regime. That access has been achieved long after all other Australians, and I am proud to be part of a government which is delivering on another key plank of its election commitment to open and accountable government.
Mr BURKE (Opposition Leader): Madam Speaker, it is certainly not my want to criticise the member for Arafura because I believe that she has immense potential in this Assembly. Nor do I wish to try and lecture her on how she should conduct herself but, it is disappointing, may I say - one of the privileges of government is that you have a wealth of advisors, many of them lawyers, who can sit back and scribble out responses to concerns that have been raised by the opposition. It is very easy for a backbencher to be handed the script and the backbencher stands up …
Ms Scrymgour: I find that most insulting. What, you do not think people have the intelligence to do it?
Mr BURKE: Well, you have been pretty insulting to the member for Goyder and a few others in your comments so, if you find it a bit insulting; what you throw is what you get back.
Ms Scrymgour: No, no, saying that I could not write this …
Mr BURKE: The member for Arafura actually belittles herself, I believe, by not taking the time herself to look at the act in detail, prepare her own comments and contribute to this debate herself, because really, the strength of democracy - as the Labor government is so keen to instruct us upon - rests pretty well upon the efforts of the members in this Chamber. It does not rest upon the efforts of public servants who sit down and do most of your work for you. I believe if more of these brand new backbenchers in government - who came to this Chamber with such lofty ideals on how well they were going to contribute to the Northern Territory - did a little work themselves in looking at just what their own executive is bringing forward into this Chamber, and how that compares to the aspirations and utterances that their own party and now, their government, is making and how that sits with the comments that they themselves have made in the electorate and continue to make. Probably, at the very least I would think, there would be pause for thought as to where they are heading in some of the comments they make when people shove a script in front of them.
This legislation will be well received, I would imagine, by those who are interested in the fact that the Northern Territory government has finally proceeded to bring forward FOI legislation in the Northern Territory. It is something …
Dr Toyne: It is over one year. How long did it take you?
Mr BURKE: It is something that I believe was inevitable. Certainly, in my time as Chief Minister, I took the opportunity to progress a great deal of the work that was done on this legislation. If the Minister for Justice and Attorney-General is nodding, so he is certainly not going to be churlish enough to suggest that a great deal of that work was not done by the previous government.
The Minister for Justice and Attorney-General said that it took great courage for this Labor government to bring forward this legislation because the CLP government was too cowardly to bring it forward. Okay, that can be your interpretation of it and you can stick to that. The reality, whether you accept it or not, is simply this: that given the expectation that the Labor Party gave to Territorians as to what sort of FOI they would introduce if they came into government led to a belief that, when they did bring forward FOI legislation it would be certainly at the forefront of any other legislation in Australia, and they have had the opportunity to do that. They have had the opportunity for more than 12 months to look at the work that the CLP did, refer to all of the submissions that have been made, interrogate the legislation that has come forward in other states and see where they could improve on it, and improve on it in a way that the other states themselves would sit back and say: ‘Gee whiz, the Northern Territory government was the last government to bring forward FOI. All of the other governments have had their legislation in place for many years; we have tickled around it at the edges. A whole new benchmark has been set by the Labor government that is now showing states like Western Australia and New South Wales that, if you are going to move forward with new FOI legislation, here is the opportunity to do it and this is the way you do it’.
It seems to me to be disappointing, to say the least that, when given that opportunity, the most that the Labor government can do is refer to the fact that it pretty well meets the legislation that exists in some other states, which they know from their own research have been roundly criticised by those who take an interest in FOI matters. Certainly, universally, all of those jurisdictions have been criticised for the fact that the exemptions are too broad, the actual access of information is quite limited etcetera. So this is not a courageous act that the government is doing today, it is actually going through the motions.
It is being able to say to Territorians who have some faith in politicians: ‘Now you have FOI legislation, aren’t we great? There is the FOI legislation, everything will be sweetness and light’. The reality is that you know it will not be sweetness and light for them. You know that, for those who wish to seek access to information other than information on themselves, it is going to be extremely difficult. You have done everything possible in this legislation to make it as difficult as possible and, for that, it is disappointing to say the least.
On issues of records management and privacy information, you yourself know that, almost without a word change, that was all prepared prior to the election. There might be one or two word changes in there. The real issue was how you got access for government information and how well that access would transpose in fact, rather than in words.
Rather than me trying to suggest what the benchmark should be, the benchmark was set by the Ombudsman who, in his submission, did no more than really encapsulate this whole concept of FOI and how it needs to be translated into legislation so that it actually does meet the expectations of the general public. What he basically did was set a number of comments about the draft legislation, with the expectation that the act itself would change from that draft bill. So, in terms of how we then analyse this act today, it seems a pretty simple process to me; and that is you look at the draft bill, you refer to the weaknesses in the draft bill coming from the Ombudsman’s comments, and see where this new act actually reflects those comments, has improved upon them, and brings forward new legislation. The fact that the government has chosen not to do that is one thing; the real issue is that the government itself said it would.
You are the ones who set the benchmark, you are the ones who said you would take the submissions from the public and would respond to them. You are the ones who said the Ombudsman’s comments would be taken into consideration and would be reflected in the new bill. People like the member for Sanderson was quoted in the Hansard as saying:
I have just lost his quote.
Look yourself at what you have in terms of the exemptions for commercial-in-confidence, all of the caveats that you have put on the ability to get access by so-called commercial-in-confidence documentation that the Auditor-General himself has said should not be privy to government, should be accessible. Certainly, from the expectation of your Labor Party, I can only refer back to what your own documentation said, and this is quoted by the member for Sanderson, what the freedom of information whistle-blower legislation that the Labor Party would introduce - it is on page 1060 and 1061 of Hansard debate Wednesday, 6 March 2002 and he said:
However, if you go to the act itself and you look at the exemptions in the act, one of the large exemptions that there is commercial-in-confidence information. It gives you all of the reasons why you will not get access to commercial-in-confidence information, if that meets the parameters under section 57 of the new act, Commercial and business information, research, examination papers. It goes through a whole series of six subclauses with sub-subclauses; a whole series of reasons as to why the public will not get access to that information. Now, if that meets your own parameters, fine, go out there and explain that to your Labor Party supporters. Certainly, on the utterances that you made prior to coming to government, and the legislation that you bring forward into this parliament, it falls short of the test. It falls short of the member for Sanderson’s test that he himself put in.
The Minister for Justice and Attorney-General, in his contribution to the debate, said:
Which you have not done:
You went on to say that, basically, you were going to incorporate all those submissions into your new legislation. Various comments in there to say that this is in draft only, this act: ‘It has a long way to go, there really has to be a lot of public consultation yet, and when we bring forward the eventual act it will be something that everyone will be proud of’.
Let us see where this act actually differs from the draft. In doing that, it seems to me that it needs to meet the parameters that the Ombudsman himself said. He said with regard to the draft legislation - legislation that was prepared by the CLP when in government, legislation that I believed would not meet the expectations of Territorians, would be attacked and attacked soundly by the Opposition at the time - let us see where this legislation actually meets the Labor Party’s own test because the Ombudsman, when speaking about the draft, said:
He goes on to say:
Mr O’Gorman this morning - I know the Minister for Justice and Attorney-General said he is not an expert. I can tell you what he is not: he is certainly not a supporter of Denis Burke, that is for sure, because he and I clashed on many occasions over mandatory sentencing. However, even someone like Mr O’Gorman says the Territory legislation has picked up the worst, not the best, the worst of the regime from other states.
So you can sit and grin. You are the guys who have to sell this stuff. Enjoy your time in government, but try and be honest with yourselves, and that is that your draft legislation has not changed one iota. The only area where your draft legislation has changed has been in terms of more exemptions, more areas where the public service can restrict information, and ultimate power to a politician. We have seen that before: a pretty glaring example of the trust that Australians have for politicians was the republican debate. Remember the catchcry of those who were against a republic? Let us not have a politician’s republic. What they have with this legislation is a politician’s FOI, and a politician’s FOI is FOI that leaves ultimate power in the hands of politicians. If you could not even improve it to ensure that you had an independent commissioner who had the ultimate authority and say on what would be released and what would not be released, I believe you will fail miserably.
Regarding the Ombudsman’s comments about the draft legislation, he said that the bill failed in a range of areas - and this is the draft bill he is talking about – and the range of areas he laid down were:
That is not a legal right but something else:
Now, when he looked at the draft, he said:
If you look at the objects clause in the draft bill, and in the actual bill that has come into the Chamber today - we are talking about Part 1, clause 3 of the draft bill and the same clause of the actual act. The words have changed slightly. If you actually look at the way the words are constructed, they are constructed differently, so I do not dispute that. And I do not dispute the lofty ideals that the objects of that particular clause state. But that was not the Ombudsman’s complaint; that was not the concern he had. Again, it was disappointing - particularly if it came from a lawyer who wrote the script for the member for Arafura - to suggest that that is what the Ombudsman was concerned about. He was concerned about the fact that it is one thing to have lofty statements in an objects clause, it is quite another thing to see the objective of those objects flow through in the content, structure and intent of the bill. He said it failed because the objects were in total contradiction to the actual construction of the bill.
Now, that has not changed. The wording of Objects has been construed slightly differently, the intent of the objects have not changed, but the structure of the bill - the way the bill deals with those objects - has actually become worse. Certainly, on that test alone, you have failed in meeting the Ombudsman’s parameters. He says that the objects in the bill should fail in favour of that person seeking information. The balance should not be a balance in fact, it should be a skewed balance; it should be a balance that is skewed in favour of information being provided, rather than information being withheld. That is what he wanted to see coming through in the bill, and that is what is not there in the way the bill has been constructed.
So, the first one: ‘lack of significance in terms of the purpose and objects of the bill, the failure to recognise the importance of the right to access as a major component of a democratic government’, I believe this final bill has not met those parameters, and it simply has not met those parameters because, in fact, it has hardly changed at all, in words or otherwise, from the original draft bill.
The next point he made was that the broad-based exemptions in the draft bill did not meet the mark. In the draft bill, the broad-based exemptions are in Part 4. Those exemptions that are supposedly in the public interest as to why information will not be provided, flow through from clauses 42 to 56. In the actual act, those exemptions are from clause 43 to 56. I have been through all of those exemptions and all I can say to you is that, word for word, they do not change except that …
If I could have your leave for a moment, Madam Speaker, to find my place in the bill. In the bill, the exemptions that will go through are: clause 42, public sector organisations not required to provide access; matters confidential to government are then listed. The reason I got confused; I was on the draft act.
If we go to the actual act, in clause 45 we see: ‘Executive Council, Cabinet, Territory economy’. In looking at those exemptions we now have two additional subclauses. In the draft bill you have subclauses (i) to (v). We now have two more exemptions: subclause (vi) which says an additional exemption would be:
and (vii):
I ask the Attorney-General, in the submissions that he received, where was the submission that said you would need to put in those two subclauses? I am particularly interested that, not only did the Ombudsman say that the exemptions were too broad in relation to clause 45 in the draft bill but, as a result of this culture of getting more information out to the public, in that area alone the government has seen fit to put in two more exemptions.
I say it in this context: in government, I cannot remember the number of occasions when the member for Wanguri, as shadow health minister, stood in this parliament and used draft reports that had not actually been endorsed by the department let alone actually made their way to the Cabinet process, as ways of criticising government; of ways of saying: ‘This draft policy reflects what you intend to do in government’. He was quite strong in their right to have that documentation and to bring that documentation to the public, either in this Chamber or in press releases, as allegations that this is what the government intended to do - knowing full well that those draft documents were simply that: they were drafts, and had not been endorsed by the department, did not reflect government policy and certainly, had not even made their way through the Cabinet process at all.
Under your legislation, a simple thing like that is exempt. There is no way in the world, under your legislation, you can go and ask for that sort of draft and get it provided for you, because it discloses a communication; it discloses information about the deliberations. If you look at the ‘Executive Council, Cabinet, Territory economy’ exemptions, clause 45, there is nothing, practically, with regard to government policy; the making of government policy; the correspondence that occurs with relation to possible government policy; the communications, written or otherwise, that exist with regards to the formulation of government policy, that can be disclosed. It simply fails. It fails your own test, it fails the Ombudsman’s test and, it is quite simply, more restrictive than what was there before.
There is an additional one to the draft, clause 47. I would ask the Minister for Justice and Attorney-General - I am sure he can explain it - I do not necessarily criticise it, but the new clause 47 refers to information exempt under corresponding FOI laws so that, if information:
that:
It seems to me that is problematic. I can certainly see times when you would not do that, but I could also see times when it would be in the interest of the Northern Territory that that information would be provided, notwithstanding the restrictions that might be there in other states. If it was in the public interest, it should be provided. But under that exemption, it gives a blanket exemption to say: ‘Notwithstanding any information, it is not in the public interest for that to be revealed’.
So, in comparison with the draft bill and the actual bill, what we see is the same exemptions except there have been two additional exemptions imposed on the information that can be provided from the Cabinet or government process, and an additional exemption with regards to information that could come into our possession from another state that may have different FOI legislation.
He talks about the deliberative processes as a criticism that the deliberative processes that people have to go through to get information are too harsh. In making that criticism, remember he is referring to the draft legislation. When we actually see what the government has brought forward, not only have they kept, in its entirety, everything that was in the draft legislation, but they have now added under clause 52 a whole new subclause (5). And the whole new subclause (5) adds to, gives guidelines to, the public service that essentially says: ‘When in doubt, when not clearly specified in this legislation that it may not be in the public interest to provide it, here are a few guidelines that will help you say “no”’. Not say ‘yes’, say ‘no’.
It is worth recording this in Hansard because most Territorians will not have this legislation and they will not get a chance to read it in its detail. But the guidelines simply says in clause 52(5):
(a) the more senior the person who created, annotated or considered the information and the
more sensitive the information, the more likely it will be that the information should not be
disclosed …
So, that is another way of saying: ‘We will not burn the CEOs or the senior echelons, but you can happily burn any junior who might have done something’. What a crazy comment to put in there! It is nonsensical to my mind. It adds to the culture of preventing rather than aiding information being released, and I wonder why it is put there in clause 52(5)(b):
Just listen to that:
Well, I would have thought it was entirely in the public interest to find out about information that was brought into existence that had an impact on the development of government policy. I thought that was what FOI was all about. It was people saying: ‘Why did you do this? What information did you have that led you to do this? Can you tell us about that?’ An open and accountable government, I would have thought - in your own words, not ours - had nothing to hide. But it seems that the whole thrust of this says: ‘You’re damned tootin’! Whether we think we have nothing to hide or not, don’t give it to them’. If that is the culture of FOI you want to produce, well, it will be a very disappointing culture. It goes on to say in clause 52(5)(c):
So, do I take it from that that a comment on a report with regards to saying: ‘This information is incorrect’, shouldn’t be given any authority by government? That sort of information would be precluded because, somehow, it might prevent a public servant from making those annotations in the future? I would have thought the culture of the public service is this: ‘Do not write anything if you do not want it out there. If you do not want it out there, go and talk to someone’. If you have a culture of government that involves minutes and recordings and data bases and everything, people are smart enough to know that, if you put it on paper, it might eventually end up out there for someone to read it. The culture of the FOI should be to encourage that thinking, whereas this FOI that you have introduced encourages a culture that says: ‘Do not worry about it. Keep doing it the way you are doing it because, by these catch-alls, you can be assured that it will not get out there to the public’.
It goes on. All of subclause (5) I believe is a clear indictment, not only of the structure, thrust and intent of this FOI, it really demonstrates to me that, somehow, this Labor government has been nobbled. I thought this Labor government had a bit more of the intestinal fortitude they have said so often that they have. Where is the intestinal fortitude that you take the draft that has been prepared for you by the old, awful CLP government, you go out for public consultation, you talk to your public service and the end result is: ‘Whoops! Add more exemptions, give more guidelines to the public service. Just get something out there that is called FOI, and if we can get something out there called FOI we can con the great masses out there that, somehow. they have access to information’? Of course, they have not.
The Ombudsman says in his parameters:
The way the government has responded to that criticism is to take the exemption certificate authority away from the Secretary of the Chief Minister’s Department and put that entirely in the hands of a politician. The simple fact is this: again, this is an opportunity lost. It is no good saying: ‘What is your problem? It is in the hands of a Premier of Western Australia, it has hardly been used, so it is good’. This is supposed to be the new, enlightened Labor Party. Why couldn’t you, and why won’t you …
Madam SPEAKER: Order, Leader of the Opposition!
Ms CARTER: Madam Speaker, I move an extension of time to allow the member to complete his comments.
Motion agreed to.
Mr BURKE: Madam Speaker, I accept the fact that the Minister for Justice and Attorney-General and his Cabinet may have been led along on the fact that: ‘They have this in Western Australia, it has hardly been used, so let us do it here’. All I ask you to do is consider the amendment that we have proposed. It is a very important amendment. It seems to me it goes to the heart of this legislation because it refers to clause 63 of your own act. At the moment in your act, you have the exemption certificate being entirely in the hands of the Chief Minister, an exemption certificate that, notwithstanding the fact that it has never been used or is rarely used, cannot be reviewed in any way, requires no explanation, and there is no appeal.
If you follow your own logic, minister, I would have thought that, seeing it has been rarely used in the past, why wouldn’t you allow the Information Commissioner to have some ability to investigate that rarely made decision; to inquire into that rarely made decision; to review or otherwise call into question that rarely made decision? If you cannot support that amendment, you have been nobbled. If you cannot support that amendment, you are not bringing forward FOI legislation that is of any great note in the Northern Territory.
You have exemptions right through this legislation to ensure the information cannot be provided, and you have the ultimate veto in the hands of the Chief Minister. Notwithstanding what you say out there, it will not take long, once people start to use this legislation, that they realise that the avenues of getting information are not only costly but they are almost prohibitive in terms of the information that can be provided. When it comes to anything that is really sensitive to government, that might embarrass government, the sorts of information that FOI applicants seek to access, the sort of information that Australians and Territorians - you believe - think they should access and think this legislation will give them, has the ultimate veto in the hands of a politician.
If Territorians believe that that is a better method than to put it in the hands of an independent commissioner, that is most disappointing and unfortunate. On those lines, I would say to the Minister for Justice and Attorney-General and the government this: if you support the simple amendment that I have proposed, an amendment that simply asks that the Information Commissioner be able to inquire into, report or investigate that very rarely used mechanism - which you have repeated so often - if you refuse that amendment, your FOI legislation does not stand. It just does not stand; it is more secretive than the draft, it is more constrained in the drafted terms of the procedures and access and processes the people have to go through, and it puts ultimate power in the hands of a politician, which is certainly not the intent - or should not be the intent - of politicians, because FOI is supposed to do away with those particular powers.
There is another one that I refer to, and that is clause 130. I would ask the Attorney-General again why - there may be good reason, once again - the appeal to the Supreme Court in ‘Appeals from decisions of Information Commissioner’ has now been changed to refer to ‘a question of law only’. The change - you might wish to help me - what is the reference from the old draft? Is it 103 in the act. In the draft - I cannot find the wording at the moment - I think it says ‘on a serious matter only’. In the act itself it says ‘on a question of law only’. I ask the minister to explain to the House why, when it comes to an appeal against information being provided, a decision has been made by the Information Commissioner, and the appeal against that information goes to a higher body such as the Supreme Court. Why could it be on a question of law only because, as I understand it, this is not legally binding in terms of caveats anyway. It seems to me that there is no appeal, in fact, if it can only be an appeal in law only. I ask you to enlighten us in that regard.
I will not labour it any longer. The government is intent on putting through this legislation. The government will certainly sell that legislation to the public as best it can. There is no way in the world that the public will get any indication as to the workability or otherwise of this legislation until some months or years hence, when people start to access information and realise how limited that access is. Then, I believe that, sadly - I say sadly, not from the CLP’s point of view but from the Labor government’s point of view - people will quickly realise that, when given the opportunity to bring forward FOI legislation, a government that has no preconceived values, that could have led the way for Australia, has failed miserably. It has failed miserably on a pretty simple test that, as one commentator who has encapsulated the views of many said, failed at every one. The legislation that has been brought forward in the House is more restrictive than the legislation they brought forward in draft.
The government is keen to say that somehow Burke is now a champion of FOI - the CLP government had 27 years to bring it in and they did not do it. The champions of FOI are those who expect to get access from FOI legislation, and get good access. I have always believed - and I am not afraid to say it now in this Chamber - that FOI legislation means nothing if it is just words. To walk out there to the public and say: ‘We have FOI legislation, aren’t we terrific?’, all it does is mislead people. It gives them the feeling that they will have greater access to government information than they had in the past, when it seems to me - and one of the areas that I have felt that legislation such as this would do in the Northern Territory is - it does not provide a step forward at all.
What it does is encapsulate in legislation all the reasons why you do not give out information. It encapsulates it in a way that, if it is not there clearly written, you will not provide it. There is a whole range of broad guidance as to why you should not give information to the public. But that is not the culture that exists in the Northern Territory now. If you can point me to areas where the previous CLP government has withheld information that was reasonably expected to be given …
Dr Toyne: Where would you start?
Mr BURKE: I am happy, if you want to give me examples, there are your advisors; the advisors might be able to give it to you. They could certainly give, in my time as Chief Minister, information that should have been made available to the public. Under your legislation – and point to the clauses in your legislation that would then allow that information to be made available to the public, and would be made available in the future - I would be interested to hear it - information that would not have been given through the Auditor-General; through a PAC inquiry; through an MLA writing to a minister on behalf of a constituent; but information provided by a minister, Ombudsman or whoever as a direct reference to an inquiry from a constituent.
This legislation is supposed to take a large leap forward from that culture, and I cannot see that it achieves this. It certainly did not achieve it in the draft; it certainly has not achieved it in the act that has been presented to the parliament. Certainly, in having good FOI legislation in the Northern Territory that the government said it would put forward, I believe they have failed their own test. They have not failed my test, they have failed their own test, and the test that Territorians expected of them in bringing forward that sort of legislation.
Mr VATSKALIS (Transport and Infrastructure): Madam Speaker, I speak in support of the freedom of information. I have to admit that the Leader of the Opposition may be right - no legislation is perfect. Certainly, our legislation is not perfect, it is not 100%. I do not think any parliament has introduced any legislation, ever, that satisfied 100% of the population. At the same time, it surprised me that, all of a sudden, the CLP have become the champions of democracy, of freedom of information. They want everything done now, and they want it in a perfect, open way - everything to be open.
Ms Carter: Our job is to be a scrutineer of your work.
Mr VATSKALIS: That might be true but, at the same time, I recall very well that, as early as 1999, on 2 February 1999, the Leader of the Opposition stated publicly - and it is recorded in Hansard - that he did not believe in FOI legislation; he thought it was unnecessary. It did not suit the Northern Territory; the Northern Territory did not want to know things about their government, did not want to have information about how things worked in their government. I certainly do not believe that is what Territorians want, and I do not accept that. What Territorians wanted, because we went to the elections with a platform that said we will introduce freedom of information – it did not - and the ultimate test was on 18 August 2001. The outcome is well known.
There is a government here that is committed to freedom of information and put in place the first freedom of information legislation in the Territory. If you are so serious about freedom of information, you had 27 years to do it – it was never done, because Territorians did not want it – that was your opinion: because this is the Territory, because Territorians were second-rate citizens. They will soon have the same rights as everybody else in Australia who have their freedom of information.
I consider this legislation is very important. I grew up in a country where you never questioned the decisions of the government, ministers or prime ministers; you were not entitled. As a citizen, you had rights and obligations, but your rights were not extended to question the government of the day - whatever it was - about their decisions. Coming to Australia, I was impressed by the openness of the Australian government - it does not matter whether it was Liberal or Labor - by their willingness to be questioned by the citizens, and to make sure that this happened by the introduction of appropriate freedom of information legislation in parliaments in other states and territories and the federal parliament.
So, today I am very, very pleased to see freedom of information legislation being introduced in the Territory. This is done by the Labor government because we responded to the wishes of Territorians and we have delivered. It might not be perfect, it might have some shortcomings. However, Territorians who want freedom of information are prepared to accept that and, certainly, if they are not satisfied with the legislation we put in place, would talk to us and, as a government that listens, we are prepared to come back and have a look at what was proposed and, if necessary, make the necessary amendments. We are not afraid to come back and say: ‘Yes, we did not do that right, we might do it better’. However, my belief is this is legislation that is going to work. This legislation is the best freedom of information legislation ever introduced in the Territory. As a matter of fact, it is the only freedom of information ever introduced into the Territory and it is 27 years too late.
The Leader of the Opposition and the shadow Attorney-General made comments about the certificate of exemptions. It is very interesting to see that, out of 12 categories ‘not in the public interest to be disclosed’, there are only four categories that we can absolutely grant certificates of exemptions, and this can be done only by the Chief Minister. They are very concerned that there is no right of appeal, there is no right to review but, at the same time did not mention that actually every year the Information Commissioner will come and state in parliament how many certificate of exemptions have been issued and how many times these certificates have been reviewed and been reissued. So there will be some form of assessment. Certainly, I do not think that the Chief Minister would be that brave to issue certificate after certificate for some of these issues.
At the same time, looking at the certificate of exemption that would be issued for different categories for matters not in the public interest, I have no problem with extra documents being excluded and certificates of exemption being issued. I have no problem, as a citizen, for briefs and drafts for Cabinet to be excluded. I also do not have a problem for security and law enforcement issues and matters to be excluded through a certificate of exemption. Definitely private and cultural information has to be excluded and I have no problem with certificate of exemption being issued for these issues. I repeat that, not as a parliamentarian, and a member of the Labor Party, but as a citizen. If I was out there I would still not have a problem. I am certainly going to support the freedom of information and these certificates.
This legislation creates a legal right of access to government information and personal information held by government. Of course, in doing so it strikes a balance between an open house approach and the need for government to protect privacy of individuals.
Several tests are in place and these would be administered, essentially, by the Information Commissioner. The aim would be to ensure accessibility. To ensure that citizens also have a right to privacy, the government has utilised the modern provisions of the federal legislation. It is already in place in the federal parliament. We had no problem to find some of these clauses of the federal legislation that are applicable to the Territory, and either adopt them or incorporate them appropriately.
A series of the commercial privacy principles will also apply. My colleague, the Attorney-General, has outlined those same principles for privacy. Essentially, they provide rigorous guidelines for the way organisations collect, store and use private information, for access by the relevant person, to that information. They also provide for the ability of the person to correct that information where it is wrong. That is a first for the Territory, and that is a significant piece of legislation that will not only protect the privacy, but sometimes governments collect data and a lot of this information is not absolutely correct. That piece of legislation will give you the ability and the right to correct this information where they are wrong.
There is no doubt the implementation of this legislation will take some time and careful thinking. There is much that needs to be done for us to be prepared for the legislation, and to make sure the legislation can work as we intend. Much has already happened in preparation of this legislation. I asked the Attorney-General, and he said elements of the legislation will be phased in over time to allow for the public sector to become conversant with it.
I noticed the Leader of the Opposition was talking about the public sector and how is it going to prevent information that it thinks is not in the public interest, and that the answer would always be ‘no’ instead of ‘yes’. That may happen in a public service that works with the CLP frame of mind. In this government, the public service will work totally different. Let us not forget that the public service worked very closely with the relevant minister and each minister might have something to say if the public service continuously refuses information to the public, claiming that it is not in the public interest for various reasons, and at the same time, against the commercial-in-confidence that seems to create a lot of problem with the other side.
I wonder how many times the other side, as a government, did not disclose information claiming commercial-in-confidence, because they signed an agreement, a contract with the company, that they could not disclose trade secrets; they could not disclose tendered information. If they are brave enough, they can come out and tell us how many times they did not do that, or the number of times they did. Then they have the right to actually accuse us that we are going to use commercial-in-confidence information to stop anything being disclosed in the public.
As I said before, I grew up in a culture that did not question governments, courts or ministers. I have lived in Australia 20 years and, suddenly, I have learned a different way of living and I want to question government, as a member of parliament and as a private citizen. I will question government when I am given the opportunity or I have something to question government about. I believe freedom of information, as introduced by the Attorney-General gives me the capacity, the ability and the right to question government and, certainly, it will give me the ability to get the appropriate answers.
As I said before, no legislation introduced in any government of the world is 100% perfect. Legislation is made by human beings and humans are fallible. However, at the same time, this is the best legislation with regards to freedom of information introduced to the Territory - it is the only piece of freedom of information ever introduced in the Territory. I am very pleased to say that it is one very good piece of legislation.
On the other hand, this piece of legislation produced today in parliament is not going to be cast in stone. It could be reviewed in two years time when we hear the people, the citizens of the Territory, A members of parliament, we have another opportunity to come back and criticise it, introduce amendments, find out if it works properly, see what the shortcomings are, and try to fix it.
I am very pleased to be able to speak in support of the Information Bill and I commend my colleague, the Attorney-General, for the introduction of the bill.
Mr WOOD (Nelson): Madam Speaker, I would like to preface these comments by congratulating the government on this bill – well, maybe most of this bill that which deals with records management, privacy and the creation of the Office of the Information Commissioner - although I have an amendment to propose in relation to the appointment of the commissioner and that basically deals with making sure that the commissioner is independent.
My criticisms lie mainly with the sections dealing with access to information and exemptions, especially in relation to government processes, policy making and decision-making. I will be moving a number of amendments relating to exemptions at the committee stage. I thought I should make a note relating to the question I asked during Question Time regarding a summary of the 60 submissions. The Attorney-General gave me a list of submissions received, but I do not believe that that was the intention of what he said in parliament on 6 March:
I do not believe that that summary did occur. Without having that summary, it has been difficult to look at what other people have said when they have put their submissions in, and perhaps add them to my comments today.
What rights will members of the public have to access information? In 1994, the Australian Law Reform Commission reviewed the Commonwealth’s Freedom of Information Act and some of its general comments are worth noting. The commission believed that government information was a national resource, that information was an important defence against corruption, and that access to information was closely related to the notion of a healthy democracy.
It said that the aims of FOI were to increase public scrutiny of government and increase government accountability, leading to improved agency decision-making, to increase public participation in the process of policy making and government. In New Zealand’s Official Information Act the purposes are listed as:
The Australian Law Reform Commission recommended the objects of the federal law should explain the purpose of the act; that is, to provide a right of access that would enable people to participate in the policy and decision-making processes of government; that would open the government’s activities to scrutiny, discussion, comment and review; and would increase the accountability of the executive.
The South Australian government has just tabled new objects for its FOI act that explain the purpose of the act as promoting openness and accountability, and emphasising the importance of government held information being made available to the public.
Despite the Territory Labor government’s promise of more open and accountable government, it seems reluctant - unlike the new South Australian Labor government - to enshrine those words in its legislation. Instead of a list of purposes like those in the New Zealand act, or objects like those recommended by the Law Reform Commission, in the Territory we have a list of objects that do not mention processes, philosophy or policies - only a right of access to information. However, I note that it is not a legally enforceable right of access.
The Victorian Freedom of Information Act goes a lot further than the Territory’s bill in setting out the responsibilities of government agencies in providing general information to the public, so that the public knows what an agency does and whom it consults. The law requires agencies to publish their decision-making powers and other powers that they hold affecting the public. They must state the documents they hold and any material that they publish. They have to list all the boards, councils, committees or other boards that have been set up to advise them, and whether their meetings are open to the public, and if the minutes are available for public inspection. I imagine that, if all the Territory’s agencies started meeting such requirements, we would double the amount of information in the public arena without anyone making an application under the new information laws.
What is the impact of the wide-ranging exemptions? The Australian Law Reform Commission found that the Commonwealth’s Freedom of Information Act had had a marked impact on the way agencies made decisions and recorded information. It said the act had focussed decision-makers’ minds on the need to base decisions on relevant factors and record decision-making processes. However, you have to ask to what extent a member of the Territory public is going to have access to decision-making processes and whether this legislation will have any impact on the way agencies make decisions.
Part 4, Division 2 exempts Cabinet documents from disclosure, and I acknowledge that the provisions are generally in line with other FOI legislation around Australia, and that they protect the convention of the Westminster system; that of Cabinet confidentiality. The idea is that Cabinet deliberations are protected so that there will be a vigorous debate within Cabinet on issues, policy and spending.
The Law Reform Commission noted in 1995 that this exemption had always been controversial, because it seemed to contradict the principle of open government: that Cabinet was the peak body for government decision-making, but its deliberations were secret. However, the commission considered Cabinet documents warranted a class exemption. But, the scope of Cabinet exemptions in the Northern Territory’s bill are comparatively wide. There are seven provisions that cover information that has been to Cabinet, has been prepared for Cabinet, or might go to Cabinet. This is information that is exempt because, according to clause 44, it is not in the public interest to disclose it. There can be no argument about public interest and no appeal.
The most worrying of these seven exemptions are the last two, the ‘might go to Cabinet’ category. Clause 45(1)(a)(vi) says information that:
Clause 45(1)(a)(vii), information that:
I suppose you could say it is hard enough to understand just trying to read it in the first place but, basically, what is says is that if something is generally being prepared - either a brief or a discussion paper - then you have a fair chance of not being able to see that information. This appears to me to be just the kind of information that would give members of the public insight into government policy and decision-making processes. It also suggests an easy excuse for claiming exemption: that the information sought is of that kind that might generally go to Cabinet, even though it does not. That is a very broad clause.
Under Division 2, the only information that can be released is information that is at least 10 years old, or purely statistical, technical, scientific or factual; and even that statistical or technical information cannot be released if it discloses a Cabinet decision or deliberation.
The state of Victoria has exemptions covering some Cabinet document and deliberative processes, but it also has other provisions that spell out the kinds of documents within an agency that are available, and that might have informed the decision-making process. The Victorian act requires agencies to publish submissions prepared within the agency for presentation to Cabinet. It also requires agencies to publish documents and reports that have been prepared within the agency, or for the agency, that contain recommendations, policy advice, study results, assessments of policy, programs or projects, assessments of the feasibility of programs and projects, report on agency restructures and instructions to Parliamentary Counsel. That is in a Victorian Labor Party government act. You certainly do not see that in our legislation.
The Premier in Victoria is required to publish, on a continuing basis, a register containing the terms of all Cabinet decisions and the date on which they were reached. The Premier has some discretion to keep decisions off the register, but at least the public gets an idea of what is going on in Cabinet and whether the decision they have been waiting for has been made.
In South Australia, a parliamentary committee reviewed the state’s FOI laws in 2000. It suggested that the exemption for all Cabinet documents could be used as a device for refusing the release of documents that had only a peripheral connection to the Cabinet process, and that the provisions had been used to avoid releasing information that should have been made available. The South Australian government has recently moved to restrict its Cabinet related exemptions, and only those documents that had been specifically prepared for submission to Cabinet will be exempt. It also prepared amendments so that access to Cabinet documents will be allowed if the Cabinet has approved their disclosure.
So we now have Victoria and South Australia each allowing the possibility that not all Cabinet documents contain sensitive information. The South Australian government was also concerned that, under the previous Liberal government, documents not normally exempt from FOI legislation will be attached to Cabinet submissions in order to give them exempt status. It has moved to clarify the status of attachments in the state legislation. However, the Territory laws make no distinction and, in fact, suggest that any document that is even remotely linked to Cabinet will be exempt.
I draw the attention of members of the Assembly to the catchcry of the new Labor government in South Australia: its honesty and accountability. The Premier even has an honesty and accountability portal on his web site. It is obvious that, as far as freedom of information legislation goes, the South Australian government is prepared to go further in trying to achieve openness and accountability than the Territory Labor government. That said, I realise that this government has gone much further than the previous government was ever prepared to go. I believe it was in 1994 that Territorians were first promised freedom of information legislation.
Other worrying exemptions in the Territory bill are those found in Part 4, Division 3. Clause 52 covers documents relating to deliberative processes. In my mind, these documents are the ones that go to the heart of government decision-making, policy adoption and accountability, and they should be available to the public. Under this section, information that may be exempt in the public interest includes: an opinion, advice or recommendation brought into existence for the deliberative processes that are part of the functions of the agency; or a record of consultations or deliberations of a public sector agency in the course of the deliberative processes. This is the kind of information through which interested people could determine what factors were taken into account when a decision was made and, through that, improve accountability.
To quote the Territory Ombudsman in his submission on the original draft in relation to these provisions:
Mr Maley: And the member for Goyder.
Mr WOOD: And the member for Goyder. But I have concentrated on three that I believe are so broad that they really should not be in there.
The provisions say it may not be in the public interest if - and these are the three clauses that I will speak to later during the amendments. Clause 52(5)(e):
Well, I am sure if you told that to the NT News - or first of all there is always a risk, if you are giving it to the press, the NT News or the television, that they will make mischief of it. That is the make-up of the media in this country. So, you could probably that just about say anything, if you are not careful, could have that risk. Clause 52(5)(f) is:
That clause actually confuses me in reading it again, but, basically what it is saying is that, if it is likely to have unnecessary debate, it is possibly not a good thing to have. So, that could be a reason for exempting the information. Also clause 52(5)(g):
I would have thought by having that there you are not encouraging people to make sure they disclose the reasons for a decision. They should be much more careful before they give someone a decision, so all the reasons are there so there cannot be any embarrassment. And if there is some embarrassment, so what? That is part of government. It seems to me that with the last provision the easy solution would be to disclose all the relevant information that led to the decision.
Clause 57 deals with commercial and business information. Everyone here would be aware that a favourite government excuse around Australia for rejecting FOI applications for information about contracts has been: it is commercial-in-confidence. The former Victorian Premier, Jeff Kennett, raised the practice to an art form. Kennett fought long and expensive court battles to prevent the release of details of contracts between government and the private sector, creating the impression that he had something to hide. One of the Bracks Labor government’s first actions was to conduct an audit review of the Kennett government’s major contracts. The reviewer found that, in the vast majority of cases, it was the government and not the private sector which had insisted on the contract details being kept secret. Why did the government want to keep these contracts out of the public eye? The reviewer found those processes, in terms of consultation and determining environmental impacts, whether a project would be effective in meeting with the government’s aims, or whether it would be economically viable, had been cut short. That is the sort of behaviour and decision-making that was covered up under the cloak of ‘it is commercial-in-confidence’.
In South Australia, the previous Liberal government found that commercial-in-confidence exemption valuable in avoiding disclosure of contracts and commercial deals. One opposition frontbencher remembers being denied access to information about government’s payments to a company on such a basis, but he later found it in the company’s annual report. The new Rann government has tabled amendments that more tightly define the exemption. The bill proposes that all future contracts will be disclosed under FOI applications; an exemption will still apply if the contract contains a confidentiality clause approved by a minister. But the exemption will cover only specific provisions of the contract and only the contract, not the pre-contractual documents or those generated in the course of administering the contract. Getting access to this pre- and post-contract information would be particularly important to any individual or group concerned, say, with the effectiveness of outsourcing.
The community needs to know that the government is not involved in secret dealings, but the Territory’s legislation is quiet on contracts and confidentiality, just this vague heading under Exemptions of commercial and business information. Surely the matter should have been explicitly dealt with by this bill, or does the fact that contracts get no mention mean they will all be available for disclosure under the information act?
Overall, Part 4 of the act dealing with Exemptions in the Public Interest, contains almost 80 different provisions that provide grounds for exempting information from disclosure. My worry is that, with such a range of exemptions, the government and the public sector will always have an excuse to exempt material if they are looking for one.
That leads me to look at the challenge presented by this legislation. The Commonwealth Ombudsman warned that, after 12 years of the federal FOI act, many government agencies still did not operate within the legal framework, and certainly not within the spirit of the act. The new South Australian government has also come to similar conclusions after re-examining its Freedom of Information Act. The government says its review highlighted a problem with the way that agencies dealt with members of the public. It is currently examining public sector culture and decision-making, and plans to announce non-legislative measures to address the issues identified.
In the Territory, there will be a need for senior agency managers to understand and support the principles of freedom of information. A culture of openness will have to be encouraged and that will probably involve a big shift, given the past difficulty in accessing government information in the Territory. It appears that the job of educating public sector workers and members of the community will fall to the Information Commissioner, so the recruitment of a highly skilled and dedicated person to that position will be pivotal to the success of the legislation, especially in the early days.
As the Victorian experience has shown, government departments have lots of information that can be released as a matter of course - information that belongs to the public. The taxpayer pays for the staff and the resources that are used to gather and collate that information. I would hope that the Information Commissioner would encourage agencies to publish - on the Internet for a start - a lot of the information that it has as a matter of course. That way, the legislation would just become a back-up.
The Labor government has delivered on its election promise. It promised freedom of information legislation, and we have it. It promised the laws would be a force for disclosure, and it meets those criteria. It also promised that the laws would enable scrutiny of the processes of ministers, their officers and government agencies. But it did not define those processes and it did not specifically include decision-making or policy-making processes. We will have to wait and see whether or not that is the case, but a good government should not fear scrutiny or openness.
I believe governments should work on the theory that all information is open to the public. That should be the foundation stone of FOI legislation. Exemptions should be exceptional and exceptions should be minimal. Government should ask themselves: what harm would it do? What harm would it do to release documents to tell the community what you are doing, to let them know how the government developed a certain policy? None. It certainly would make our government more accountable and would make government departments more careful about the advice they give government, because that advice could be scrutinised by the public.
I make two references to documents: one from the previous and one from the present government. There is certainly one document that I do not believe is available for public scrutiny, and I certainly do not think it would do any harm now - it is the document regarding the study done on the effects of damning the Elizabeth River. There was a document that, as far as I know, is still not available. When I asked for a copy of that document, it was certainly not allowed. I know the Leader of the Opposition queried whether there were any documents that his government would not allow access to. That is one of the famous documents that dealt with mud, biting insects and water quality - the stuff of absolute secrets. So it was difficult in the previous government.
In the new government, I know the minister for health is there, but when asked about the review on the Palmerston Health Clinic, the 24-hour health clinic, that review is covered by Cabinet confidentiality. Yet, you would have to ask: if there is no problem with that review, why isn’t it open to the public? What harm does it do? You have to work on that. That has to be the top of the pyramid: what harm will it do? We seem to have now come up with 80 exemptions because we are scared there might be some harm.
Perhaps government’s fear of allowing too much information to be released to the public is based on a fear of knowledge, even a little knowledge. Thomas Huxley, who I studied many years ago, once said …
A member: Aldous Huxley.
Mr WOOD: Aldous Huxley, I beg your pardon.
Mr Kiely: Thomas was his cousin.
Mr WOOD: Thomas was his cousin - thank you very much. Mr Huxley once said:
This bill is a good start, but it is certainly not the finish. This bill allows a little knowledge. If the government does not want to be accused of being the author of the saying ‘a little knowledge is a dangerous thing’ then I believe the government needs to promise a review in 24 months - and I was pleased that that is possibly going to happen - to include in that independent review a benchmarking against other legislation and a willingness to change the bill to make it more about access and less about exemptions.
As a start towards this, I hope the government supports the amendments that I will introduce today, and allow this bill to really be a bill of knowledge, openness, transparency, and information, and a bill about good government and a healthy democracy.
Mrs AAGAARD (Health and Community Services): Mr Acting Deputy Speaker, today I speak in support of the passage of the Information Bill. By enacting legislation that will grant a statutory right of access to government information, this government continues to provide Northern Territorians with a confidence in the operation of government through its open and transparent policies.
In attempting to balance the competing interests of the desirability of freedom of official information with the need to provide sufficient protection to personal privacy, the Information Bill endeavours to ensure that any such access regime is based on national and international best practice. To achieve this, the Information Bill provides a framework for the management of government information in the Northern Territory in one single comprehensive legislative package that provides for freedom of information, or FOI, the responsible collection, handling and correction of personal information or information privacy, as well as promoting appropriate record keeping and record management in government.
This bill is unique in Australia in that it has both a privacy objective and a democratic objective, encompassing goals of participation, open government and accountability. It is important to understand that complete and unfettered freedom of information is unattainable and, in a free and democratic society, undesirable. Every FOI law in the world sets limits on what is to be made freely available. Such limits include the coverage of the law itself, the range of rights and duties and the reasons for limiting disclosure where other important public interests need to be protected. It is a matter of balancing competing interests.
There is a general presumption that it is in the public interest for access to government information to be granted, and the key underlying principle of the Information Bill is that information shall be made available unless there is good reason for withholding it. However, one good reason for withholding official information is to protect peoples’ privacy, including that of deceased persons. If an agency decides that it is necessary to protect privacy interests, then it must consider whether, in the circumstances of a particular case, withholding the information is outweighed by other considerations which render it desirable in the public interest to make that information available.
This is a balancing exercise that must be sincerely entered into by the agency if the disclosure is to obtain protection against any subsequent complaint to the Information Commissioner. While the Information Bill regulates access to one’s own personal information, the bill does not claim to exclude other means of obtaining access to information. Other access to personal or factual information may best be achieved through one of the more informal and flexible arrangements already established outside of the statutory screen.
However, the formal processes established by the Information Bill will often be the preferred way of dealing with the more complex applications where, for example, there is an issue of disclosure of third party or confidential information, or mixed personal and non-personal information. While there may be some perceived tension in any interface between freedom of information and privacy protection, for the most part, privacy and FOI work together in harmonious accord.
As Minister for Health and Community Services, I would like to focus on the information privacy aspects of the Information Bill, particularly health information privacy. But I would first like to touch briefly on the recent history of privacy. Privacy is a broad concept that covers a wide range of concerns about forms of intrusive behaviours, including the misuse of personal information, surveillance, phone tapping and body searches. At its simplest, privacy has been described as the right to be let alone. However, it is important in the context of the introduction of this bill to draw a distinction between privacy and information privacy.
The word ‘privacy’ is now commonly used in Australia to describe the second more specific category of data protection, or information privacy, and it is information privacy that is covered by the Information Bill. Information privacy is not a new concept. The OECD published international privacy guidelines in 1980 that were intended to ensure that an individual’s personal information was adequately protected, as well as to assure the international free flow of data. It was felt that failure to protect the former would result in an impeded data flow if individuals and nations addressed this issue in an ad hoc manner by developing inconsistent or incompatible national legislative schemes.
Although Australia provides no constitutional guarantees for the privacy interests of individuals - as do some countries - privacy is nevertheless a fundamental human right that should not be infringed without compelling justification. This was recognised by the Commonwealth government when it formally adopted the OECD guidelines in 1983, and the Commonwealth Privacy Act 1998 contains a set of information privacy principles based on those OECD guidelines.
In Australia and elsewhere, the most effective way that has been found to address issues of the protection of personal information is the development of privacy rules that govern the way in which health and other personal information is collected, used, disclosed, kept and otherwise dealt with. The central focus of any privacy framework must be to ensure that individuals have a choice about how their personal information will be handled, enabling them to maintain some control over who has access to it.
The Commonwealth’s Privacy Act 1988 established a regime for the protection of personal information held in the Commonwealth and ACT public sectors. In December 2001, this legislation was extended to provide privacy protection to personal information held in the private sector and, through the national privacy principles, establish a framework for the collection and handling of personal information. They also contain an access and correction principle that grants individuals the right to seek access to personal information, and to seek to have it corrected if it is inaccurate, incomplete or out of date.
The Northern Territory Information Bill has not been developed in isolation from other privacy regimes in Australia, and complements the Commonwealth’s Privacy Act 1988 by applying a set of information privacy principles to the Northern Territory public sector, which are drawn from the national privacy principles. Coverage of the Northern Territory public sector will ensure equivalent and consistent protection of personal information in the Northern Territory, regardless of whether a public or private sector organisation is involved.
Under the information privacy principles, those whose personal information is being held by an agency should be made aware of the purposes for which it has been obtained, and for which it may be used or disclosed. This openness introduces accountability and a quite proper democratic pressure to be fair and reasonable in those informational handling processes and practices. Openness and accountability are essential ingredients of the information and privacy principles, but nothing in the principles derogates from any statute or regulation which authorises or requires information to be collected or disclosed.
All Australian governments are committed to the positioning of Australia as a global player in the information economy. The majority of Australian governments have also been keen to deal with privacy, as it is widely considered to be a potential impediment to the uptake of electronic commerce and online government. While it is well recognised that the private sector should lead in terms of the development of commerce, and e-commerce in particular, governments have a responsibility for ensuring that a supportive, regulatory framework is in place. A facilitated regulatory environment will remove barriers to participation in the information economy and build trust, confidence and certainty in electronic forms of communication and business. A robust and pragmatic privacy regime is seen as an essential component of such a regulatory framework, and this is what has been delivered to the people of the Northern Territory with the Information Bill.
Just as a rapid development of information and communication technologies has changed the way in which individuals, businesses and government conduct their activities, these same technologies also permit health care to be planned and delivered in new and innovative ways. Development such as electronic health records, telemedicine and remote access to diagnostic facilities, involve the distribution of sensitive health information through computer and telecommunication systems across long distances. In order to realise the benefits of these e-health initiatives, safeguards need to be established to ensure that the information collected, disclosed and shared through these systems, is kept confidential and is protected from misuse and unauthorised access.
In short, the success of national and Northern Territory e-health initiatives depends on the establishment of a robust and comprehensive legal and regulatory framework that will assure all stakeholders that appropriate protection is provided for all the highly sensitive personal health information that is embodied within all forms of health information systems, and which will provide them with legally enforceable privacy rights and remedies. Ensuring that personal health information is protected by robust and effective privacy safeguards has become one of the most important issues on the national health agenda. People regard information about their health as one of the most sensitive and private categories of their personal information. Protecting and safeguarding a person’s health information is a fundamental health care issue. It is clear that, if people are not sure that their health information privacy is respected, they will not seek the health care that they need or, if they do, the information they provide health care providers will be inaccurate and incomplete.
The Information Bill establishes a rigorous and appropriate level of privacy protection for personal health information collected and handled by the Northern Territory public sector. Most importantly, the bill provides for complaints and enforcement to be dealt with locally in the Northern Territory by the Information Commissioner. The Information Commissioner has the capacity under the legislation to ensure that the rules that apply are suited to local conditions. This flexibility ensures that the privacy protection provided in this legislation suits the needs of all Territorians, regardless of where they live. The Information Bill is ground-breaking legislation for the Northern Territory in the way that it promotes openness and real accountability in government and provides robust health information and privacy protection in the Northern Territory public sector.
Mr Acting Deputy Speaker, I am very pleased to support this legislation.
Mr KIELY (Sanderson): Mr Acting Deputy Speaker, today I support of the Martin government’s Information Bill that, as the Attorney-General has stated, it is another pillar of our good government strategy. The interest in this bill shown by the broader community of not only the Northern Territory but also from other Australian jurisdictions, is a clear indicator of the need for this type of legislation in a democratic society.
One of the challenges of government is maintaining open, accountable and democratic structures. Transparency and openness is the greatest weapon the public has against misuse by government of information obtained in the course of the stewardship of institutions within our society. Governments today have become the custodians of a vast amount of information upon which decisions are based that can affect, for better or worse, the lives of ordinary citizens. Government information is normally accessible to the public in a number of ways including the parliamentary committee system, through local members of parliament, in the annual reports of agencies, and government publications. However, no society can consider itself truly democratic if its citizens must be satisfied only with the information fed to them by their leaders.
Access to information laws have their champions and their critics: promoted by politicians, usually when they are in opposition; supported by investigative bodies such as royal commissions; championed by the media and enlightened social commentators; written off as next to useless, too costly or a sham by governments who have little desire to become more accountable to the electorate. Such was the case in the Northern Territory under the previous CLP government. As an example of this observation, let me recall for members of the Assembly, comments made by the member for Brennan on several different occasions. These have quoted quite a number of times by other speakers before me, but I feel that they are important enough to get back onto the record. The first one that I make mention of occurred on 11 August 1998, when the member for Brennan, the Opposition Leader who was, I think at that stage, vying to be our Chief Minister, stated:
This is from the person who was up there championing it not long ago. The same person then said in February 1999, in response to a question from the member for Fannie Bay in relation to the freedom of information:
Well, not all Territorians feel the same way I am glad to say. He went on to say:
Well, Territorians did not accept his point of view and they showed that quite well.
The final illustration of substantiation of my observation occurred on 22 April 1999, a date that he seemed to bandy about quite a bit. The member for Brennan said this in response to a question from the member for Fannie Bay in relation to freedom of information:
That is the member for Brennan’s view. He fed to this parliament, to members of the Legislative Assembly, the view of his own self-image. It says a lot for the person that they are in this game here, and they believe the reality is that politicians all too often lie. Maybe that is the view of the CLP; it is not the view of the Labor Party. I do not subscribe to that view, and I really think that that man ought see about a new career move if that is what he thinks his job is all about. He goes on to say:
All these comments that he made a year, two years ago, are contradictory to the position that he was espousing here a short time ago. The CLP, to its shame, resisted all attempts made by Labor when we were in opposition, as well as the public, to introduce meaningful information legislation. Information legislation is one of the building blocks to open and accountable government. But, according to the now Leader of the Opposition, ‘it was not necessary, Territorians did not want it, it was a joke’.
Every other Australian jurisdiction including the Commonwealth has information legislation, and has had for years. Its existence is a tangible benefit for the citizens of those jurisdictions and it is taken for granted. Indeed, even countries such as Bulgaria enacted access to information laws in 2000. Even more astounding is that war-torn Bosnia Herzegovina managed to draft and implement access to information laws in 2000. Such is the desire of people who, for years, have been disallowed from knowing what information their governments have control of, that amongst all of their other woes, amongst all their war-torn lives, they should deem such laws as necessary to protect their newly found democracies. Thanks to the strength, courage, and foresight of the people of the Northern Territory by voting in the Martin Labor government, the same right to access information will finally apply here.
The purposes of this bill are to make public bodies more accountable to the public and to protect personal privacy by giving the public a right of access to records; giving individuals the right of access to and the right to request correction of personal information about themselves; specifying limited exceptions to the rights of access; preventing the unauthorised collection, use, or disclosure of personal information by public bodies; and providing for an independent review of the decisions made under this act. You see, this is the Information Bill we have here; it is not just freedom of information. It is about privacy, records management, and access to information.
Mr WOOD: Government policy.
Mr KIELY: That’s right. Eh?
Mr WOOD: What about government policy? It is not private.
Mr KIELY: This is. The bill we are now debating has been the subject of a rigorous consultative process. As the minister has previously advised, 55 formal submissions were received during the extended consultative period. So much for Territorians not being interested in FOI. As a local member, I joined with three other northern suburban MLAs - the members for Karama, Casuarina and Johnston - and organised a public forum for our constituents. I was aware, as were they, of the interest of the public in this bill. Feedback from this and other public meetings, as well as from the formal submissions, have assisted our government immensely in creating legislation which, in all probability, will serve as the model for other jurisdictions in Australia and elsewhere to follow when their current Freedom of Information Acts are up for review.
I should note to the Assembly that public comment on the Information Bill was primarily on the FOI component. Submissions have been received from relevant bodies - for example, the Australian Society of Archivists - with respect to the record keeping and records management component of the bill. However, there was minimal comment on the privacy component. This may well be attributed to there generally being less familiarity with that area of law from those making comment, rather than a lack of interest in privacy matters. The same also goes to the privacy principles.
There was considerable comment that the objects and purposes clause of the bill failed to acknowledge the intent of government as presented in the discussion paper; that is, to be open, accountable, and transparent and promote public confidence. A common comment was that it needed to express a more pro-disclosure approach to freedom of information. As the objects and purposes clauses can be referred to for the purposes of statutory interpretation, it is necessary that they properly reflect the intent of parliament and the legislation.
The objects of the act before the Assembly today have addressed these concerns in a very thorough manner, and I am sure members present would agree. I hear voices …
Mr Wood: You do? You should see a doctor!
Mr KIELY: I do, I do. I hear lots of voices. Voices of acclaim!
This act is very strong and clear, in that every person has a right, if plausible under this act, to access government information other than personal information that can be protected under the privacy principles. There was some confusion on this point, and this confusion was identified in the consultative process. Clauses 15 and 16 have been drafted to make clear that the right to access is established but personal information is protected under the privacy principles. In the discussion paper, clause 13 provided for the retrospective application of the act. That is, it would apply only to records created or received no later than five years before the commencement of the act, except for personal records, for which there is unlimited retrospectivity. This is widely criticised as being too restrictive. Of the 12 submissions that mention this issue, only two submissions were opposed to retrospectivity.
Dr Burns: One of them was DCC.
Mr KIELY: It quite possibly was, if my memory serves me right.
The general thrust of the submissions was that there was no justification for that limitation. Submissions suggested that it be either unlimited, go back to self-government, or have an unlimited period phased in initially, then open. The increased costs of further retrospectivity were not seen as a good argument against that course of action. Retrospectivity appears to be something that all jurisdictions of Australia have had to come to grips with when introducing information legislation. I believe it will benefit this debate if I were to cover, at this point, the different time lines taken up by the rest of the Commonwealth in regard to retrospectivity.
In the Australian Capital Territory, FOI came into operation on commencement of clause 22 of the Australian Capital Territory (Self-Government) Act 1988. The FOI access right does not apply to documents that came into existence before 1 January 1977, subject to a personal information exception, or if a document is necessary to explain a document that came into existence after that time. The access right does not apply to Commonwealth documents originating more than five years before commencement, except for documents containing personal information of an applicant, or information relating to the applicant’s business or personal affairs. In New South Wales, the restriction on refusing access on the grounds that the document came into existence more than five years before the commencement of the legislation has been repealed. In Queensland, there is a three month phase-in of access rights, and six months in the case of local government. After phase-in, the access right applies to any document, regardless of when it came into existence. In South Australia, an agency may refuse access to a document that came into existence before 1 January 1987, except for personal information, a document that is necessary to understand another document, or a document that is more than 20 years old. For Tasmania, except for personal information, the FOI right of access does not apply to information incorporated in a record more than five years before the commencement of the act. In Victoria, except for personal information, the FOI access right applies to documents that came into existence not more than five years before the commencement of the access right; that is, 12 months after the date of commencement of their act. In Western Australia, it applies to documents regardless of when they came into existence, subject to time limits imposed with respect to exempt documents.
This government has given very strong consideration to the comments put forward during consultation, and has looked closely at the lessons learned from other jurisdictions. It is, indeed, a very sound and logical position that has been taken in dealing with the issue of retrospectivity to information. This bill has struck a good balance. Information will be available to individuals all the way back to self-government, after a phase-in period of two years, if, as determined by the Information Commissioner, access can be shown to be important or in the public interest. After this time, information may be sourced as far back as 10 years.
There were a lot of general comments on exemption provisions. Many submissions received appeared to misunderstand the way the exemptions worked – common but incorrect. Concern was that particular case exemptions were class exemptions and not subject to a public interest test. The submissions received made the accurate observation that the categories of the exemption certificates contained in the discussion paper were broader than elsewhere. However, the categories of information referred to, do not differ greatly from the exemptions in other jurisdictions. In fact, the exemptions are less broad than some other jurisdictions.
All jurisdictions except Tasmania have exemption certificates for Cabinet executive council. Tasmania retains exemption certificates only for executive council, having repealed the provisions for certificates for Cabinet documents in 1999. The 15-year time limit seemed to be the main concern. In most other jurisdictions, the Cabinet exemption is for 10 years. Government considered the views of the community, and the precedent set in other jurisdictions, and has acted positively by incorporating a similar period to the other Commonwealth jurisdictions for the exemption of Cabinet executive council documents.
This bill before us today provides for an exemption from access rights or information that would disclose information about an Aboriginal sacred site, or Aboriginal tradition. Third party consultation requirements include sacred sites or traditions. The sacred sites information held by the Aboriginal Areas Protection Authority is considered to be protected by the operation of section 38 of the Northern Territory Aboriginal Sacred Sites Act, and the absolute exemption provisions for secrecy provisions. Other cultural information held by that agency or others would be exempt where it properly fell within the other exemption provisions contained in clause 56, cultural information, or clause 55, confidential information. No other jurisdiction allows certificates for privacy in cultural matters.
An area of discussion paper which attracted a lot of criticism was the power of ministers to grant exemption certificates for deliberative process documents of agencies for which they are responsible. The ability to delegate this power to individual CEOs was widely criticised, and perceived as having the ability to undermine the whole regime. A quick check of the approach of other jurisdictions to the issuing of exemption certificates indicated only one jurisdiction, the ACT, allows the power to be delegated to a CEO for a minister. Only Tasmania allows the CEO of an individual agency to give certificates, and this is for the Cabinet executive council.
As indicated earlier, this bill was a worthwhile recipient of a rigorous public consultative process. The comments provided by the community have been seriously considered and, where merit has been demonstrated, these comments have been acted upon. Such is the case with the issuing of exemption certificates. The only authority for issuing exemption certificates in this bill before this Assembly will be the Chief Minister. I could not help but notice that the member for Goyder, when he was grinding up about the exemption certificates, once again seemed to be imposing a CLP model on what would happen with exemption certificates. Well, we are not the CLP, we are the ALP; we are the government of the day. This is what is lost on the opposition members.
Considerable concern was expressed that the cost of access would be used to prevent access. There was a strong view that access to personal information should be free. To address these concerns, an interdepartmental committee was formed to consider various issues regarding implementation of the Information Bill. There is a charge if the information requested does not relate to the applicant’s personal affairs; this is only fair and reasonable. The scale of charges that will be incurred are in line with other jurisdictions and, by any scope of the imagination, they could not reasonably be deemed excessive. The main feature to remember is that the fee payable for having public servants search out and reproduce information, is only applied if the information sought is not of a personal nature. The opposition and the Independents should pick up on that.
The establishment of an independent statutory office of the Information Commissioner, was strongly supported. The necessity for independence of the office is widely recognised and accepted. Part 6, Division 1 of the bill clearly sets out the establishment, functions and powers of the Information Commissioner. I have had a close look at this part of the act, and I find the role of this position would have to be exciting and challenging. I believe it will be a very rewarding task for the first person appointed to the position, and I look forward to their contributions of introducing this long awaited legislative change.
My contribution to this debate has really focussed on the access to government information aspects of the Information Bill, and I feel a bit remiss of not speaking at any length on the privacy and records management facets. However, it is the FOI elements, as I mentioned earlier, that have attracted the most attention, and therefore, I felt compelled to give the majority of my observations towards that issue. I have waited some time for the introduction of information legislation for Territorians. I clearly remember when I was employed in the NTPS that I mentioned to one of my colleagues the need and benefit that access to information legislation would bring, not only to the community, but also to the NTPS. They chided me and stated that FOI would never see the light of day in the Northern Territory. Well, it has and I am proud to be part of the government that achieved this structural change in the way government relates to our community.
I would also like to say that it is cheap and easy to be sitting on the opposition benches and to be deriding the proposed bill before us today. It is at the cutting edge. It does wind up three important facets of access to information: it covers freedom of information, it covers records management, and it covers the privacy principles. To see the opposition now sit there and have cheap shots at what we are trying to do for the Territory with this bill, talks about the backflip this opposition have chosen, and about having no credibility about their intentions; they are there deriding it. The truth will win out on this bill. I believe that after it is enacted and people start using it, they will see that it is good law. No matter how much the opposition stands there and makes out that this is not a good, strong bill, the proof will be in the pudding. The proof will be that the public will have access to information. I am not at all concerned. I will happily go to the people in three years time and stand up and say: ‘We are the ones who brought in the Information Bill. Not that CLP. Have a look at it. It is working and you can rely on this government for good laws’.
I commend the bill to honourable members.
Dr BURNS (Johnston): Mr Acting Deputy Speaker, I support this very important bill. This Information Bill is much more than a freedom of information bill. It balances the sometimes paradoxical and competing interests of public access to information held by the public sector, with the rights of individuals to have the privacy of their personal information protected - the first time in Australia that those rights and protections have been balanced against each other and combined into one piece of legislation. I appreciate the level of detail that opposition members and the Independents have gone to in this debate. However, the essence of the detail is the balance that I have just spoken about, and it is a unique balance. It is legislation that has been commended elsewhere in Australia.
Supporting both these crucial aspects is the legislative requirement for public sector agencies to ensure that there is appropriate records management and archive systems to retrieve such information. This bill also establishes the independent and autonomous position of an Information Commissioner to oversee the act and to handle any unresolved complaints and conflicts that may arise.
When receiving a briefing some months ago from the Victorian Attorney-General’s Department, I was pleasantly surprised to hear comments from experienced officers who were full of praise for the integrated approach adopted within the Northern Territory legislation. As previously mentioned, this approach combines, links and balances the rights of the public to access government information, the need to safeguard personal privacy, and the requirements for appropriate record keeping and archival systems within a single legislative framework. I believe this framework makes good sense and our approach also makes for good government.
It is worthwhile to examine some of the history surrounding the introduction of this legislation. Freedom of information legislation was first introduced by the Commonwealth in 1982, with most states soon following; that is, most states and territories other than the Northern Territory where its introduction was vigorously resisted for many years by the former CLP government. Someone once remarked to me that freedom of information to the CLP was like a wooden cross to a vampire. I tend to agree and I will have some quotes to back that up. It is also an interesting comment because folklore has it that vampires cannot be seen in a mirror, which is probably why some members opposite get upset when we begin to reflect on the arrogant, dismissive and plain out-of-touch history of the CLP regarding such cornerstones of government accountability such as FOI. Here are some examples. This is from the current Opposition Leader, 16 February 1999, in response to a question from Clare Martin. I refer to the Eighth Assembly Parliamentary Record, page 484:
Here he is criticising us, because he believes it is overly bureaucratic:
Again from the current Opposition Leader on 11 August 1998, and I am quoting from the Eighth Assembly Parliamentary Record, page 1648:
I will read that last one again:
A couple of themes are very evident in these words, especially the paternalistic view of what is best for the Northern Territory and Northern Territorians. It is almost like a Captain Snooze-style reassurance that: ‘Everything is all right, children; you can just go back to sleep now’. There are also echoes of Bjelke-Peterson who said: ‘Don’t you worry about that. Everything is all right’. However, everything was not all right. Leaving these themes aside, the final sentence from the current Leader of the Opposition carried profoundly prophetic words, because judgment was passed and the people voted for a party with a clearly enunciated platform to introduce freedom of information legislation.
This policy vacuum on the part of the CLP remains the major defining difference between the two sides of this House. Here today we have a united government, implementing our election promises made to the people of the Northern Territory, whilst the opposition criticises and complains and tries to find fault with everything we try to do. My advice to members opposite is to get a life, and get some policy positions.
Before I move on, here is a slightly altered quote from Bertolt Brecht that I believe the CLP should consider very carefully:
I think there is more than an ounce of truth in that. I will say it again:
Get out there, make some policy, develop some policies, make your appeal to the people, and then you might have some success, instead of whingeing and carping and whining and trying to pick fault with everything that we on this side do. You have tried to carp and criticise on some very fine points, but freedom of information is here, it is going to be passed and, I believe, it is going to be an incredible benefit to the Northern Territory.
By contrast, this is a government committed to the principles of a participatory democracy. From the outset, we have involved the people of the Northern Territory in the process of developing this legislation. After tabling the draft Information Bill on 23 October 2001, we invited public comment. Some 55 submissions were received from a wide variety of organisations and individuals, and all submissions were carefully considered. A significant number of changes were made to the draft legislation, and the member for Sanderson has outlined some of those. We are a government that listens as well as delivers on our promises.
If I could turn back to those 55 submissions, it is amazing, in a way, that the Opposition Leader has chosen just one of those 55 submissions, which is from the Ombudsman. Anyone who writes, criticises, examines and reviews a lot is always suspicious of someone who comes back to only one paper. If you are looking at an academic topic or a topic in a review, you are always suspicious if someone does not review the whole of the literature; if they settle on only one particular paper that suits their argument. That is a weak way to try and review and argue, but that is what the Opposition Leader did. The other thing he did was forget that the Ombudsman made a submission on the draft Information Bill. He kept on coming back to that, and did not acknowledge the positive changes that had been made as a result of that public consultation.
I believe one of the major changes that resulted from the public consultation related to an increase in the retrospectivity of how far back information, other than personal information, can be accessed. Within the draft framework, there was a five-year limit placed on how far back the public could access information. I am very pleased that the legislation now allows for a 10-year limit on government information generally. After two years, it is proposed to allow access to government information created more than 10 years ago, subject to a public interest test. In relation to personal information, it is worth reiterating that there is no such time limit.
To return to the bill as a whole, as stated previously, the main principles which underpin this bill are as follows: right of access to government and personal information; protection of the privacy of personal information; to allow individuals to have erroneous personal information corrected; appointment of an independent statutory officer, an Information Commissioner to oversee FOI and privacy; and best practice for record keeping and records management responsibilities.
As with any such legislation, there will necessarily be tensions between the need for government to keep some matters confidential and the rights of citizens to obtain information. Needless to say, there are those people - and we have heard some of them here today - who believe that the exemptions contained in this bill are too extensive. However, as the Attorney-General foreshadowed in his second-reading speech, all exemptions within the bill are based on the public interest, and there are very few class exemptions. As outlined in clauses 45 and 48, the two categories of class exemptions are as follows: information confidential to government, including Cabinet and executive council documents - and the member for Sanderson pointed out how that is the rule generally within Australia. The second class of class exemption is information covered by secrecy provisions of other legislation, subject to a three-year sunset clause, excluding the Northern Territory Sacred Sites Act. I believe that those two class exemptions are very reasonable exemptions, and I do not really see how anyone can get up here and reasonably criticise those two sets of class exemptions.
All other exemptions that may be applied are subject to a harm test as follows:
information that would prejudice security and defence, or prejudice law and order.
Who can argue against that? In this day and age, we must be very mindful of our security, defence, and law and order. We are living in a very dangerous time, so it is natural to want to protect that.
information that is necessary to preserve the system of justice, including legal privilege, these
include the right of a person to a fair trial.
any information that would endanger the life or safety of an individual.
Interestingly, when I was in Victoria receiving the briefing that I mentioned previously, I was told of a prisoner in a high security gaol in Victoria who was trying to use the freedom of information legislation there to access information about the running of that gaol. Some of it has probably hit the papers in the last week about this particular individual. I am not going to name him in this parliament, but he is a very dangerous person. There has to be that qualification to protect people working in places like prisons. I do not believe information that would endanger the life or safety of an individual should be available to people, especially people like that prisoner I just mentioned.
While some may suggest that some aspects of exemption under this bill are too extensive, I would argue strongly to the contrary. Indeed, I believe this bill balances the rights of the public to access information, and gives protection to individuals and safeguards the public interest. With regard to some of the ill-informed comments by the Leader of the Opposition in relation to the exemption certificates with the potential to be issued by the Chief Minister, it is worth reiterating that our scheme is very similar to that operating in Western Australia, where the Premier has the same power to issue an exemption certificate. That power has never been used.
Furthermore, this bill sets out very specifically the pivotal responsibilities of the Information Commissioner under clauses 87 and 88. The act is very clear about the functions and power of the Information Commissioner. I would like to read some of these powers because think they are very important, and this position of Information Commissioner will be a very important appointment.
Some of the functions under clause 87:
(a) to develop and issue guidelines to public sector organisations about freedom of information,
the correction of personal information, and the protection of privacy;
(b) to promote within the public sector organisations an understanding and acceptance of the
principles of freedom of information;
(c) to promote within the public sector organisations an understanding and acceptance of the
IPPs and their objects …
That is very important about protecting peoples privacy. I will not drag up the disgraceful thing that happened some years ago under the CLP, where the then federal candidate, Mr Nick Dondas, somehow received very private information about elderly Territorians through the Health Department, which assisted his campaign - an incredibly bad breach of privacy under the previous government.
The Opposition Leader challenged us before to find some instances. Well, there is an instance, and I have the information here, some of the debate that went on within the House in that time - a disgraceful episode.
But anyway, returning to IPPs and the functions of the commissioner:
(d) to provide advice and training to public sector organisations on the freedom of
information and privacy provisions of this act;
(e) to conduct audits of the records held by public sector organisations to determine the
extent to which those organisations are complying with the privacy provisions of this act;
(f) to examine and assess proposed legislation and policies relevant to freedom of information
and privacy;
(g) to research and monitor developments …;
That is very important to let the public know what their rights are and how they can access freedom of information.
(i) to make public statements about matters relevant to freedom of information and privacy;
and the protection of privacy;
And so on.
Clause 88 has the powers of the commissioner:
(2) for the purposes of –
(b) deciding whether or not to serve a compliance notice …
People opposite talked about the lack of teeth in this legislation. Well, I believe this Information Commissioner has very strong administrative powers to make organisations or individuals comply:
(c) conducting an audit under section 87 …
Also:
The commissioner -
(d) is entitled to full and free access at all reasonable times to the records of a public
sector organisation; and
Very importantly:
(e) may require a public sector organisation to answer a question or to produce a record.
So, there are some powers that will enable this Information Commission to carry out their particular functions.
Another important function of the Information Commissioner is to provide an annual report to the minister as required under clause 99. This will enable parliament and the public to effectively judge the performance of individual agencies and the Information Commissioner. By the way, it will also allow the public and the voters to judge our Information Bill, because it will be set there in an annual report for all to read, discuss and analyse. I believe that is very important also, so that the public and the parliament can monitor how this legislation is travelling.
In conclusion, this legislation represents a step forward for good government in the Northern Territory. I commend this bill to the House and urge members, both Independent and opposition, to support it because, as the Chief Minister said earlier, it is very hard to discern - I guess we had from the Independent member there - some support for the bill. It is very hard to discern, on the opposition side, whether they are supporting it or opposing it.
Ms CARTER (Port Darwin): Mr Acting Deputy Speaker, I would like to make a few comments with regard to the legislation that I am sure will get passed tonight.
Probably a few years ago, I started taking a particular interest in FOI; it was a topic being mentioned within the community. Certainly, I can say that the party members within the CLP also raised it as an issue. As a result, as you would know, when the CLP were in government, we moved to develop draft legislation on the issue.
When I looked into it and read articles about other jurisdictions and how FOI was going there, what became fairly apparent was, regardless of where you live anywhere in the western world, there are serious problems with FOI. Essentially, it drills down to that, basically, governments do not want to give out information that could cause problems for them, and people, of course, think freedom of information means that they can get anything they want. I noticed last night on the TV news footage the Attorney-General going into the archives of the Northern Territory. The inference was that, up until today, these doors have been locked to you but, after this legislation is passed, there is going to be essentially free entry and you can have a scrummage around and have a look for anything you like.
The public, to some extent, are going to have very high expectations of what FOI is going to mean for them. In reality, all of us have known for a long time that this is not really going to be what they are going to get. I have seen articles where people request information from a government department and, when they get that, there have been photographs of the documents that they have received with great big lines of texta colour through them, blacking out all the bits of information which they were particularly interested in. So this builds up the term ‘freedom of information’ - and the press love it, they love the sound of that – and very high expectations which, of course, are not going to be met.
That came through to me a few years ago and, essentially, it is a game of smoke and mirrors. The inference has always been, especially in the last couple of years with the pre-election campaigning that went on through the Labor Party, that there are dirty, secret activities going on with the CLP and we are purposely keeping all of this terrible information about people; we are distorting public records of individuals; public servants are doing this on the behest of the CLP ministers; and it is a terrible thing that has been going on. Of course, the reality is that that is not the case. People are going to find out as this freedom of information legislation comes through that there has not been some conspiracy to distort records as a whole-of-government process, and that there has never been a system that says you cannot have information. Because on many, many occasions in the past, when people have requested information, for whatever reason that might be, that information has been made available to them.
In the legislation that we have here, clause 52 has had a fair amount of scrutiny here today, and I am sure it will get some with the amendments that are going to be proposed later on tonight. However, the concern is the number of exemptions that are in here. If you had a mind to want to exempt something from being released, you could drive a truck through here - anything at all could fit into this exemption listing if you so chose to do that. For the people who are in power - at the moment it is a Labor government, and one day in the future it may well be a CLP government - if you have a mind to exempt, you can exempt just about anything. I cannot think of anything that would not be exempt if you so chose. For example, clause 52(5)(e):
Really, you could just about interpret anything as ‘mischievous’ if so chosen.
The exemptions are very broad and, as you know also, we are concerned about the fact that the Chief Minister has such a final role; that there is no way of appealing a decision by the Chief Minister to say no to the release of some information. There is nowhere somebody can go to with that situation. There are some concerns there, and also with regard to the Chief Minister’s position - regardless of which government is in power. If people choose to - and I guess I mean if the public service chooses to - put up to the Chief Minister requests that something be withheld from being released, a Chief Minister is an extremely busy person and to have to turn your mind to the minutiae of a file with regard to this could be quite difficult and time consuming. If there are a number of these requests coming through, when that is not your sole specific area to deal with, it will be quite an onerous responsibility to be put on the Chief Minister. That is a concern, and you will notice with one of the amendments we propose is that the Information Commissioner should be somebody to whom people can appeal if they feel that they have been unfairly treated with regard to exemptions.
With regard to the regulations that have been tabled today, the question of costs has been raised. Certainly, if you are after something specifically for yourself as an individual, it appears that the costs will not be too onerous unless, of course, you need a great deal of information. However, it is when you are interested as a third party to some piece of information - and certainly the media will fall into that category - that costs there could be very substantial for them.
To conclude, the position that I held prior to being elected was working within the Office of the Ombudsman and, specifically, the Health Complaints Commission. I worked there for a couple of years as an investigation officer and we would have members of the public come to us to complain about health services that they had received. Due to the size of the organisation, of course, Royal Darwin Hospital was one of the major organisations about which we received complaints. I repeat that was only because they are the largest provider of health care services here in the Northern Territory.
The process there if somebody came to me, for example, with a complaint about Royal Darwin Hospital, was that I would get that complaint in writing and they would have to sign a comment there allowing me to have access to their personal records held by the hospital. Within a day or so, I would contact the hospital and ask for a copy of those records and, depending on the size of the records, if they were a significant file, I would often be invited up to the hospital where every effort was made to assist me. The file was always provided. I was provided with a photocopier, with a private area to work in to examine the file, and I could do whatever I liked having a look into that file and making whatever copies I required to do, all free of charge. Then I was able to utilise that in the investigation that I then undertook.
I found that the Royal Darwin Hospital and Territory Health Services went out of their way to assist the commission in looking into the complaints of individuals. The process was very quick and I certainly hope that the process of freedom of information that you have is also going to be equally fast for people. I hope that it does not slow down some of the processes of access that we already have. From that experience in the Health Complaints Commission - and I can assure you that sometimes there were things in those notes that I am sure Royal Darwin Hospital and Territory Health Services would wish were not seen and were not released, but they never stopped that happening.
To some degree, I have concerns about freedom of information legislation that is coming through here today, with all the exemptions that can be used by the public service and others to prevent release of information. In the position that I was in before, I did feel that we had very ready access to public information. That reinforces the call that has come from this side of the House in the past, I suspect, that there was not an overt need to have freedom of information. Of course, the public has that expectation built up to it by opposition parties - whoever is in opposition - and also the media. The expectation is that it will be an open door for them; they will be able to go in and get whatever they want, have a little sticky, get what records they need. Of course, they are going to be very disappointed from time to time.
Speaking of time, it will be time that tells to see how this legislation goes. I look forward to seeing the review that will be carried out, I am sure routinely, to see how you are progressing with the legislation and how it is implemented. I understand that the implementation of the legislation will not be for some months - and the minister may like to correct me there, because I am not sure exactly when it will take effect. But I do believe that it is going to be some months and, given the urgency that it is getting here today and the support from government members, I am wondering why it will be quite some time before it comes into place. I would assume that is due to organisational needs, but if I could have some information on that, that would be appreciated.
Mr HENDERSON (Business, Industry and Resource Development): Mr Acting Deputy Speaker, I support the Information Bill 2002 that is before this parliament at the moment. In opening my remarks, I can certainly state, from the point of view of the people of Wanguri who put me into this parliament, that this is long overdue legislation.
The hypocrisy of those opposite on this particular bill is absolutely stunning. They certainly had many years to introduce legislation into this House that would give Territorians the same rights and access to information that other Australians have taken for granted for many years. They were never interested in citizens’ rights and a properly functioning democracy. To come in to this parliament this evening and to so hypocritically seek to point out deficiencies in legislation that we are enacting that is modelled on what is accepted throughout Australia, and as best practice legislation in Western Australia and New Zealand, is hypocrisy of unfathomable dimensions.
We are, as many before have said, the last jurisdiction in Australia - indeed, probably one of the last in the western parliamentary Westminster system democracies - to introduce FOI. I notice that recently one of the members opposite attended a Commonwealth Parliamentary Association meeting in Namibia, and I wonder if the good citizens of Namibia have FOI legislation. I presume they probably have, I have not done the research. It would have been interesting if you had done a poll of all of those countries and states that had attended that particular CPA forum. If you asked for hands-up of how many parliaments had freedom of information for their citizens, the count would probably be up around 90%, and maybe even Namibia.
It is long, long overdue to give Northern Territorians the same access to information that other Australians and other democracies, particularly Westminster democracies, take for granted. The previous government - and many independent commentators have speculated on this - was definitely one of the most secretive and unaccountable governments in Australia for many years. That was the reason why they never sought to introduce this legislation. For many vested reasons they had a stranglehold on the information and wanted to keep it.
Indeed, the hypocrisy is so great that the previous government used the Commonwealth FOI provisions on many occasions to access information from Commonwealth parliaments and governments - particularly during the Labor years - but, at the same time, denied the same rights and that same level of access to the people of the Northern Territory. That was hypocritical and arrogant in the extreme.
The CLP, for many years in the run-up to successive elections in the past decades, always promised that they would introduce FOI. Certainly, Perron in 1990 and 1994, and Shane Stone in 1997, promised to introduce FOI, and the hopes of Territorians were dashed on each occasion where that promise disappeared as soon as the CLP was returned to power. Many people have commented this evening on the quotes of the current Opposition Leader in response to a question from the current Chief Minister, on 22 April 1999:
The CLP promised FOI in the 1990, 1994, and 1997 elections, and here we have the current Leader of the Opposition somehow stating that these were not lies that were presented to the people of the Northern Territory. To come in here today - up on the high board with a double twist and pike on this policy position, a fundamental piece of public policy - and say: ‘I am the absolute champion, as pure as the driven snow, on FOI’, when his previous policy position had been - and again, 2 February 1999: ‘I do not believe in FOI legislation’ - is hypocrisy of the highest extreme. The sanctimonious presentation that he made in this House today will only leave researchers and students of this debate going for many years, trying to reconcile what he said in this House two or three years ago, with the position that he has taken on this bill tonight.
One of his opening comments was that he believed that FOI was inevitable. Well, it certainly was never inevitable under the CLP; it has only taken the courage of the Labor government to bring this legislation before the House. So, they have no credibility in this debate. I pick up the comments of the member for Johnston that they would have had a lot more credibility in this debate, if they came in here and acknowledged the fact that perhaps were wrong - perhaps they were wrong over the last decade - not to introduce FOI when they promised it, and if they said: ‘Well look, we will give this legislation a go’.
As the member for Casuarina stated, there is no such thing as the perfect piece of legislation, especially with something as complex as this. However, we will give it a go; we recognise, ultimately, that the people of the Northern Territory deserve the same rights and access to government information that other Australians have taken for granted. That was all part of the statehood debate, that we needed to have the same rights as other Australians - except for freedom of information legislation, which they would never introduce. So, they would have had a lot more credibility to come into the parliament and state tonight: ‘Yes, maybe we were wrong and we are going to give this a go’.
The Leader of the Opposition quoted at length from the Ombudsman’s submission to the draft bill. Public consultation led to 12 major and significant revisions. The Attorney-General advises me that, subsequently, he met with the Ombudsman, who stated that the revisions substantially satisfied his concerns. Then the Leader of the Opposition, after spending half an hour talking about the Ombudsman’s comments that were no longer relevant to the legislation before the parliament, had the temerity to harangue my colleague, the member for Arafura, for laziness and not paying attention to the detail of the bill before us. Well, he cannot have it both ways; he cannot talk about a previous draft bill when the bill that we currently have before us is substantially different, and has accommodated the vast majority of the Ombudsman’s concerns. Did he contact the Ombudsman subsequent to these revisions and inquire where he now stood on the bill? I suspect not, because it did not suit his political statement tonight.
We have had a lot of talk about exemptions and how this bill stacks up in terms of best practice legislation. I would like to go to an interview on 13 August with Julia Christiansen, on ABC radio, with Rick Snell, a senior lecturer in law at the University of Tasmania, and an expert on FOI legislation. He edits a paper called the FOI Review, and he has been advising local interest groups on the Territory’s proposed legislation, so Mr Snell took a very active interest in this. I would like to quote from that interview. Going to Julia Christiansen:
So much of the comment from members opposite tonight has been about the original draft. The idea of open, accountable and transparent government is to put your policy position out to the people of the Northern Territory, to accept their comments - and we did accept their comments in good faith and made those substantial revisions. Picking up on a point from the member for Port Darwin talking about the exemptions you could ‘drive a truck through if you so chose’. Those were the key words. We certainly do not intend to drive a truck through those exemptions but they are there for good reason. They are acknowledged, being that we picked them up in the Western Australian legislation as being best practice. The Chief Minister’s exemption that could or could not be put on, again, the practice in Western Australia as the House has been advised previously, is that it has never been used. So it is creating fear and loathing when in practice, it should not really be an issue.
We do have third party endorsement of this. The Leader of the Opposition’s comments were really historical in nature and he really needed to do his homework in terms of the legislation that we have here in front of us.
I would like to talk about the impact in practical terms that this legislation is going to have on the agencies I am responsible for. What does it mean for the agencies under my control? Both DBIRD and the Tourist Commission have taken comprehensive action to prepare themselves for the introduction of FOI legislation. Within DBIRD, a review is being undertaken of the adequacy of current information management practices in the department to comply with the proposed information act and provide recommendations to improve information management practices. The specific objectives of the review are to: identify and examine current information collection and management processes for business information; comment on the consistency of record keeping and record management processes and practices adopted by the various divisions within the department; compare current processes for collecting and managing information against the requirement stipulated in the proposed NT Information Act to ascertain whether the department’s record keeping and record management practices will comply with the requirements of the legislation; identify areas where the department’s current information management practices do not comply with the proposed legislation; and to identify strategies for improving the department’s compliance with the proposed legislation.
The review will focus on the adequacy of current record keeping and record management practices and the ability for the department to locate information in a timely manner. The review is scheduled to commence late this month with a draft report available by mid-December. A schedule for implementing the strategy will be developed in line with the department’s capabilities and resource availability. After the schedule and resource allocation is endorsed by DBIRD’s management board in February, it is planned to commence implementation in March. The department will be working closely with other agencies to ensure whole-of-government consistency and implementation of the strategies. Similar processes are at hand at the Tourist Commission.
I take this opportunity to extend my thanks to the staff at both agencies for their efforts in planning this significant change. It is going to be a very significant change within the public service but one I am absolutely confident our public servants will embrace and adapt to very quickly regarding the new practices that we are putting in place here. It is all about giving Territorians access to information that other Australians have taken for granted for many, many years.
I have checked with some of my colleagues on the comments made by the member for Nelson, saying that information is not currently available and would this information be available under FOI. I do not have the exact words or the Hansard, but it was basically saying he could not get the information out of the previous government and could not get it out of this government. He used two examples. One was the impacts of the damming of the Elizabeth River. I have checked with my colleague, the minister for DIPE and he states that, as far as he is aware - and we have had a quick check with the minister’s office - they have never been specifically asked. All you have to do is ask and if there is a report there, you can have access to it, because we have absolutely no intentions of damming the Elizabeth River. There is no reason why, if a report such as that exists, member for Nelson, we would not give you access to it.
The other example the member for Nelson gave was the reasons for the closing down of the subsidised GP services at the Palmerston Health Precinct. Again, my colleague, the health minister, has advised that a full briefing was provided to the member for Nelson on 22 January 2002. All information was disclosed at that time and there is no separate brief within the department. There is only the Cabinet submission on that particular issue and the information - which is what this is all about - as to why the policy decision was taken to cease with that particular subsidised service, was provided
So we can get caught up in terms of what documents are going to be available, and paper trails, and, at the end of the day, it is all a matter of the will of the government to be open and accountable to the people of the Northern Territory. The whole tenor of the government is that is what we want to do. We are not seeking to hide information. If there is very good reason why information should be exempt, then there is an appeals process in place. The legislation does replicate, as far as we are aware - and there is independent comment to this effect - best practice in Australia. We do commit to a public review of this legislation in 12 months, and in five years.
We do believe that the whole tenor of the government is to provide access to the people of the Northern Territory that other Australians take for granted. With those comments, Mr Acting Deputy Speaker, it is going to be a significant change within the public sector. I am sure that that change will be efficient, and I commend the bill to honourable members.
Mr BONSON (Millner): Mr Acting Deputy Speaker, today I give my support to the Information Bill. Like other members of this House, it is not often that you feel supreme pride for participating in introducing a bill that will be vital to the platform of what we know as modern-day principles of western democracy that all other jurisdictions in Australia have taken for granted.
The denial by past Country Liberal Party governments to a fundamental foundation of democracy is quite mischievous. The question must be asked: why? What did previous governments have to fear? What did previous Country Liberal Party governments have to hide? These are the questions Territorians need to ask themselves: what was there to hide, what was so important to keep hidden from the public view? I would like to tell Territorians that the CLP would never have introduced freedom of information legislation. How can I be so certain? Quite simply, let us look at previous debates in Hansard, and what previous Country Liberal Party governments have said about freedom of information.
I would like to ask the new Country Liberal Party members, particularly the shadow Attorney-General, the member for Goyder, and the member for Araluen, to listen to what your leader has said about FOI in the past. I know other members of this House have made similar references to previous Parliamentary Records, but I feel it would be remiss of me if I did not add this to my own speech. Listen to what your colleagues have said in the past, and this includes the member for Macdonnell. After hearing these Hansard quotes, look them in the eye and ask them for the truth: why did they not introduce freedom of information; why did they treat Territorians with utter contempt?
A couple of quotes on freedom of information. Comments by the Opposition Leader, Denis Burke, on 22 April 1999 in response to a question from Clare Martin in relation to freedom of information, he stated:
The member for Brennan again, on 16 February 1999, in response to another question by the member for Fannie Bay in relation to freedom of information:
On 11 August 1998, the member for Brennan continued:
How prophetic this was, especially in 1998, as we all know that we were very successful in obtaining government in the last election. One of the platforms of obtaining government was freedom of information. It was an issue that I campaigned very vigorously for during the election campaign, and have certainly supported since. The Labor government has made a commitment to introducing freedom of information in the community. People are waiting to have access to private information that is held on them, and possibly to correct information that in the past has been wrong. It is a fundamental foundation of today’s democracy, and I am proud to be part of a government that is, for the first time, introducing it. It is one of those opportunities that occurs too infrequently, where you can really make a very positive change to your community. Freedom of information, in my eyes, is all about government accountability to the people. The hope that I have is that, through this accountability, we will create a better community and a better society.
The member for Macdonnell stated on 2 June 1999, in relation to freedom of information:
This Hansard quote basically summarises the effectiveness of previous CLP election campaigns. I liked it when he commented: ‘It’s just a name to apply to a piece of legislation to satisfy the public perception and perception is everything’, because that is what the CLP in the past was about.
To pick up on comments by the member for Johnston in regards to policy. The member for Johnston has really hit a nerve there, and I believe that, at the moment, they have no policy. There comes a time when you say: ‘Yes, okay, X amount of years ago I was wrong, I made a mistake. Yes, I believed this at that period of time. Well, guess what? Right now I do not’. It would have been better suited for all members of the opposition to come out today and say: ‘Yes, in the past we did not support freedom of information - these are the reasons why - but today we are going to be supportive of this legislation. We are going to back the government because of all the right reasons’. At this stage, they have not shown the class to even come forward and say: ‘Yes, we have made a mistake in the past, we want to move on from that. We have changed as a party, and we now think freedom of information is very important to the foundations of western democracy’. These comments will forever condemn the members for Brennan and Macdonnell, and the past Country Liberal Party governments that denied Territorians a cornerstone of modern western democracy.
What does the Labor government offer all Territorians through this Information Bill? We hope to provide a legislative framework for access to government and personal information; protection of personal information, that is privacy; an independent statutory officer, the Information Commissioner, to oversee the regime; and legislative base guidelines for keeping and managing government records and archives.
This legislation aims at achieving a number of practical purposes: it will provide an avenue for people to correct personal information held by the public sector that may, for various reasons, be incorrect or inaccurate; it provides a vehicle for responsible collection and correlation of personal information by the public sector; and what the opposition has conveniently forgotten in relation to freedom of information, it hopes to deliver practical outcomes for Territorians and make stronger communities; and it forms a foundation of a healthy, democratic future. The founding principle behind freedom of information is to provide government accountability and the right of individuals to access information in relation to the public interest - either his or her own, or the community’s.
However, it is well recognised that individual right of access to information in the public interest was denied by the past CLP government, through the denial of access for Territorians to freedom of information legislation. They want us to believe that releasing information as they saw fit, without a legislative framework, was sufficient. What an insult to Territorians. Again, it would be great for the next speaker from the opposition to get up and say: ‘Yes, okay, we made a mistake. We have rethought, we have listened to this debate. In the past, it was wrong for us to deny Territorians the right to freedom of information. We have changed, we are looking forward to the introduction of freedom of information, and we are looking forward to working with this government’. However, sadly, I do not think that is going to occur tonight.
This bill will attempt to provide access to information where release is in the public interest but, like many legal rights, is not an ultimate or absolute legal right, as it must be balanced against the rights of other individuals and the community - like personal privacy, witness protection, law enforcement and a number of other rights.
The Attorney-General, in his second-reading speech said that the right to access information must be balanced between competing interests. How can this be balanced? Some information must be exempted, by limiting access to sensitive information. Why? The Attorney-General again said:
The exemptions in this bill are not dissimilar to those operating around Australia. I believe we have the balance right. Again, in the Attorney-General’s second-reading speech, in regards to the court:
It goes on, in a later paragraph:
This is the concern that I understand I am hearing from the opposition about exemptions: there needs to be a balance between the public interest and the individual and the community at large. It is a grey area and we have attempted, as best we can with best practices, to find that balance.
I am also happy to say that this information legislation will be reviewed in five years. It is a wonderful undertaking and, once we have had a look at it in five years time, we will be able to make our decision on changes regarding exemptions. But at this moment, I would encourage the opposition to work with us in making sure that the public interest is protected.
The balance between individual rights and community rights in modern times has become a serious debate for good governance and healthy communities. The statute framework for access to information is an attempt to create a better community, and must also consider the release of information that could unjustly damage individuals to such an extent that it could not be considered public interest. I have asked myself questions about exemptions whilst listening to the debate. Again, it is important to realise that the exemptions must be a balance between what is the benefit to the community and individuals and what is damaging to both individuals and the community. For example, I would not want my private health records accessed by other persons. This seems only fair to me, as a community member, that my private information stays private.
I would like to briefly address some of the Opposition Leader’s amazing comments in this debate. The member for Brennan accused members of the Labor backbench of having speeches written for them by advisors.
Dr Burns: You didn’t, did you?
Mr BONSON: No, I have written it myself, as you can tell.
This is negative and misguided. I have much respect for members of the Labor backbench. To the member for Brennan: please do not compare us with past CLP backbenchers; this is an insult to all of us. The member for Brennan also said in today’s debate, Territorians show some faith in politicians. Indeed, I do, and that is why this Labor government has introduced the first ever Freedom of Information Bill. I doubt very much if Territorians have any faith in the Opposition Leader.
This is an historic event today and, every member of this House when they vote in support of this bill, will mark this date down. This is something that you can tell your children and your grandchildren about. The member for Brennan seems to have missed this opportunity to right some wrongs of the past. His constant whingeing and whining is wearing thin in the community. Often the member for Johnston states: ‘the CLP needs to [inaudible] policies’. I agree again. Past propaganda themes so successful in past elections will not work this time around.
The member for Brennan also stated that he feared the exemption certificate power ultimately rested with the Chief Minister. We heard here tonight in debate this is compared favourably with the Western Australian legislation and, at this stage, no Premier has issued an exemption certificate. I certainly will keep my eye on any exemption certificates given by the Chief Minister. I am sure all of the parliament will, and will comment if it does occur. But I have faith that the Chief Minister will only use this power in very limited circumstances.
In his contribution to the debate, the member for Macdonnell whinged and whined about freedom of information exemptions. For a person who often comes into this Chamber to lecture us about foundations of western democracy and parliamentary supremacy, I find it absolutely ludicrous that he does not support this bill tonight and come out strongly in favour of the bill. In fact, the member for Macdonnell is a person who should, on previous comments, come out clean tonight and basically say: ‘Yes, I have made a mistake in the past. The reasons I said we did not need freedom of information in the Northern Territory were basically self-interested and politically orientated’. For a person who consistently states that democracy is something that he stands for above all else, he needs to realise that freedom of information is considered a foundation of that democratic right in a modern society.
On the Chief Minister’s power to issue exemptions, this power can only be exercised in relation to, I believe, three of the 12 exemption categories. As members have heard, the power will be exercised rarely. In Western Australia, it has not yet been invoked, so I think that this bodes well. The Information Commissioner will report on how many times the power is used, and I am sure that everyone in this House will look forward to hearing that report. There is proper accountability over the exercise of this important power. The Australian Reform Commission has recognised that an exemption certificate power is warranted.
To comment on a last few things on freedom of information, I am happy to see that retrospectivity has been increased from five to 10 years after community consultation. I know definitely, in conversation with all members of parliament, that they thought that this was an appropriate step, and people quite strongly argued that it should be extended to 10 years. I am happy that the community has agreed with us. I am also looking forward to the public review in five years to possibly having the retrospectivity put right back to self-government. There are a lot of people out there who would like access to information from the 1980s, and I look forward to that review in five years. This 10-year period will give the public service the opportunity to correlate information that can be accessed by private citizens.
Finally, I feel very proud to be part of the freedom of information legislation. It was one of the bugbears that I had during my life, and one of the things that I was ashamed to say: that the Northern Territory was the only jurisdiction in Australia that never had freedom of information. That became the case in 1992. So, for 10 years we were shamefully disgraced; we were the only jurisdiction in Australia not to have freedom of information, and no matter how many times past Labor oppositions bought this up, the CLP arrogantly dismissed it.
Well, prophetic words by the member for Brennan that the decision on freedom of information would be made in four years time, and it certainly was. It is an opportunity tonight, if any other members from the opposition are speaking, that they come clean, that they talk behind closed doors and say: ‘Okay, let us take this on the chin. We made a mistake in the past. We are going to correct our mistakes, move forward and we are going to get behind freedom of information’. For any opposition or private citizen, access to information from government is very important in making decisions in their lives, and certainly keeping governments accountable. So future oppositions, whether they are Labor or Liberal or whatever party they might be, Greens or Democrats, will have the option to access information through freedom of information and this makes for a more accountable government.
Madam Speaker, that is all I wish to say on the matter at the moment. I proudly support this bill.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, first of all, may I thank the great number of members who took part in this debate today. It has been wide ranging, generally constructive, and we have really probed around a lot of the detail of the bill.
I suppose, before I cut to the main area that most people have expressed concerns about - which is the use of exemptions and exemption certificates - and go back and basically give an overview of that, I would like to confirm here in the House that there are a lot of things I take that this Assembly is happy with. We have heard very little about the government record keeping. I believe that has attracted very little controversy or comment through the time the bill has been out. I am assuming that everyone is comfortable with that. I am equally assuming that the privacy principals that are in the second part of the bill have also met with the approval of members here, given that we have not had a major concern expressed today in the debate or, indeed, earlier on in briefings in other forums that we have all been attending and pursuing these issues. That gives me quite a degree of pleasure, that those areas seem to be attracting very little comment from members.
There are areas built within the act that I would like also to, if you like, confirm in the summing up speech. Regarding retrospectivity, there has been comment about the government allowing no time limit whatsoever for personal information. That will be really limited by the practical ability of agencies to actually locate information, particularly very early in the piece. For government information, there is a 10-year retrospectivity, which was a departure from our original draft, which was suggesting five years. That, I believe, is a major allowance to access for Territory people, going back 10 years initially. I am sure when the review is conducted after the first five years of operation of this act, retrospectivity will be very closely looked at, because you would expect that, first of all, government agencies will become much more expert in keeping records in a form that is suitable for the operation of this act. The second thing is that there will be a mapping, if you like, agency by agency, of what actually is still there, because there have certainly been records lost over the years. So we really need to know exactly what is and is not in the archives of each agency if we are going to have some sensible expectations about what will be available from further back.
The secrecy under other acts, we brought that in from five years to three years, and that is again a concession, with the one exception of sacred site legislation. We believe that the secrecy surrounding information on sacred sites is ongoing and will be ongoing forever. The review of the act we have mentioned, and the exemption certificates being current for two years is also clearly identified now in the act. So, there are some things that I believe are, from the way that this debate has proceeded, that have not attracted a great deal of concern from members. I am taking it, by process of elimination, that those are areas that people are basically okay about.
Similarly, we have not had, despite having distributed yesterday and again this morning the fees and charges that we propose to put into the regulations of this act, any significant comment on those as well.
Mr Mills: Well, that is wrong.
Dr TOYNE: Well, if there has, I apologise, because it has been a very long debate. What I want to say is that regulations do not need to be brought forward in the House. They are made through a separate process. I wanted members to be very much appraised of what the scale of fees and charges were going to be. You can see from the regulations that for personal information we have tried to keep costs away from that as much as possible. In effect, there is no application fee, no processing charge, and you get two hours free supervision by a public servant while you go through material that you want to pull your own personal information out of. There are other charges later on - photocopying and so on - but nothing of any great significance. We have tried to do that, because that is what the public told us to do. They wanted to see free access to their own personal information, and we have tried to honour that in the way those charges are set.
Let us pass now to what I think has been the core of the debate today, and that is the use of exemptions within the bill. I would first of all clarify, as I believe that many of the members have actually misunderstood the way the exemptions are placed on particular documents. If you look very carefully in the act, we are not talking about exemption categories immediately withdrawing documents or materials out of public access. What we are talking about is, if those materials pass a public interest test - in other words if it can be proven, or it is under the criteria embodied in what will be the act - then an exemption may be placed on those items. Further to that, the public interest tests that are built now into the bill are different to, and probably more extensive, than the original public interest test in the original draft.
Mr Elferink: Well, they are different. That was my point: they are different.
Dr TOYNE: It embodies, as the member for Macdonnell quite rightly pointed out, some of the criteria that came out of Howard v Treasury, within the Federal Court. The second thing was the New Zealand criteria for public interest. So, we have taken the New Zealand criteria, as a result of some strong recommendations made by the Ombudsman to that effect - and by other people who submitted. We have moved considerably on that particular area to include what is now a pre-tested set of criteria for public interest. It is not an unknown concept in law, and we have gone to the areas where it has already been tested within other jurisdictions, to set up a public interest criteria.
So what happens when someone takes an application into one of our agencies? The first thing that will happen is that a designated person, who has carriage of the Information Act within that agency, will examine the application and assess documents for release. Obviously, there can be several outcomes to that: they can be released; they could be released in part; or they could be withheld under an exemption.
As far as the applicant is concerned, any unhappiness at that stage then goes to a senior member of that agency. If that does not resolve the matter, it then gets passed on to the Information Commissioner. We have several reviews that would be done on any decision that is made within an agency as to the exemption, or otherwise, of a particular piece of information.
There are a lot of safeguards in there. There are three steps, one involving a statutory independent person, all at arm’s length from the political arm of government. There are quite significant rights to review built into this bill. Beyond that is the possibility of a court testing a decision if someone is particularly persistent, if you like, in wanting to pursue information that they have applied for, and still feel that they have not been correctly judged to be exempt.
I want to make this clear to members: we are not talking about buckets or truckloads of documents that come into these categories being immediately taken out of access. In fact, the vast majority of them would probably not pass a public interest test, and will be actually released to the applicant. We believe that, based on examples interstate, particularly the Western Australian act, that the vast majority of information applied for will be available to the applicants.
We have been trolling through a lot of these exemption categories and, I guess particularly the opposition, has been trying to paint this picture of a real broadening out, or a completely out-of-kilter set of arrangements when you compare that to what is around us. When you compare Western Australia and the NT Information Bill, you will see some remarkable similarities. That is no accident; our Cabinet made a decision that we would model the FOI part of the bill as closely as possible to the Western Australian act, for one very good reason. We consulted with people who are involved in the operation of that act in Western Australia, and all we heard - from Rick Snell to people who are actually operating in the Western Australian government system - is that it is working pretty well, and that there are not any great outcries about things that are not being handed over to people who have applied for them.
I will not read them all out, but there are 15 categories in Western Australia, and we have 12, and almost all of the categories are directly comparable. Cabinet and executive council documents in Western Australia are exempt. We exempt matters confidential to government, Cabinet and executive council; it is a very similar provision. Inter-government relations, matters affecting relations with other governments, that is the second category. There is personal information, privacy and cultural information. So, you can actually draw a very direct parallel between the West Australian act as it is in operation right now and our act as it comes into operation. I believe that we have made a sensible decision there in that, instead of moving into uncharted areas, we have basically aligned our FOI section of the act as close as possible to what is seen by many people around Australia as being the most successful FOI legislation currently in operation.
I can certainly reassure members that there are many inbuilt checks and balances within the placing of exemptions over information within government agencies. A public servant, theoretically, could take whatever line they like in making a decision, but that decision has to hold up, potentially, to a review from their senior supervisor, a review by the Information Commissioner, and even a court review of that decision. That would be - and certainly previous experiences have shown it to be - quite a good moderating influence.
In terms of exemption certificates and the ability of the Chief Minister to put in a very small number of extremely exceptional circumstances a unilateral declaration of an exemption certificate, I would like to read out a brief for members just to put more information regarding these exemption certificates.
I hope that helps a little with the direction that those exemption certificates are going within the overall provisions of the bill.
Turning to the public interest test, I have already alluded to the fact that we have imported both the New Zealand, and some aspects of Howard v Treasury, into the public interest test that is stated in the bill. Every single exemption and, to some degree, the exemption certificates, are all pinned back to those public interest tests. Every single exemption applied over a document must satisfy those public interest tests - not only satisfy it from the point of view of the initial officer who is handling an application but, potentially, to satisfy the senior officer, the Information Commissioner and a court. So it is potentially quite stringent testing of any decision that is initially made.
Having dealt with those two areas, I would like to go to some of the issues raised by individual members and give you some response on them.
The member for Goyder, on the creation of a right under clause 7; this was dealt with by later speakers, but to make it absolutely clear, the right under the act creates a statutory right within the operation of that act or the would-be act. It is not creating rights within tort or within common law. It is simply confined to the release or exemption of information within the operation of this act. It is a statutory right. It is not in any way linked to existing rights within common law or within other legislation.
The harm tests: information is only exempt under clause 44 if it meets the requirement of clauses 45 and 49. I am saying that that linkage back is very carefully built into the act. Clause 45 was specifically referred to in the second-reading speech as being one of a few class exemptions within the bill. The public interest in the non-disclosure of Cabinet information is so clear and well accepted around, not only Australia but in other countries, that it is not stated in the FOI legislation. It is the preservation of Cabinet solidarity that has been part of the Westminster system for many hundreds of years. The harm tests are part of other exemptions prejudicing the investigation of a breach of the law, and the Legal and Constitutional Committee of Queensland parliament discussed the harm test of exemptions in its review of the Queensland FOI legislation. We related our work also to that. The example of the taxi driver who applies for information that you used in your contribution, raw material - for example, statistical, technical, scientific or factual information - is not included in the exemptions and you will find that in clause 52(2).
The public interest test I have dealt with in terms of how that is defined within the act and how it is applied. I would presume that you would be au fait with that.
Turning to the member for Macdonnell, you made some play on the use of the word ‘mischievous’ within the bill. Mischievous, as you quite rightly say, could be taken to be a subjective term, but I point out again that the entire structure of the exemptions and the public interest test would expose any judgment based on mischievous to several reviews including, potentially, a court review. I believe that there will be a number of concepts within the public interest test that, although we have started with a firm base under the use of those terms within our act, will be defined and refined by the particular examples. That is common to all legislation and to law, that as they are applied to more and more contexts, the definition of them becomes more and more certain under the operation of the legislation.
To take the member’s assertion that ‘mischievous’ cannot be interpreted to mean ‘embarrassed’ because clause 50(2)(a) says that the possibility that the disclosure may result in embarrassment or a lack of confidence in the government or in the public sector organisation, is not a relevant factor. That is very clearly stated within that area.
Mr Elferink: Yes, but who makes that assessment? Oh dear, it is the person who issues the exemption certificates.
Dr TOYNE: Now hang on, let me finish. With you burring away over there, it is a bit hard to keep on the point.
The court appeals can be appeals on access to proper process and natural justice. It is possible for all statutory processes; for example, the Ombudsman or the Anti-Discrimination Commissioner. There is a limit on the appeal process because the government is committed to providing accessible and affordable FOI. The Information Commissioner provides such a process with provision for mediation. Appeals to the Supreme Court are limited in ordinary case to matters of law. Nevertheless, any decision that was made ultra vires, that is, without power, may be made under the usual court processes. Any exercise of the exemption certificate power that was exercised ultra vires, for example, for information not covered by one of the exemption provisions, would be ultra vires and, therefore, could be tested as a matter of law. So, there is the possibility of using the Supreme Court, as there is in the cases of appeals against Ombudsman or Anti-Discrimination Commission or other statutory decision-makers.
Turning to the Leader of the Opposition, he made quite some point of the use of commercial-in-confidence, under clause 57. The commercial-in-confidence exemption provision, in fact, answers the concerns and criticisms that have been made of the commercial exemptions. Such information is only exempt if it can be shown that release of the information would be likely to expose a commercial undertaking, unreasonably to disadvantage. Clause 57(2) provides the matters to which regard may be had in determining the question of disadvantage. It is not just open for the government to declare information to be commercial-in-confidence.
We have to get away from this vision that people have been trying to create of the red stamp in the room and, you know, away they go. These categories do not automatically underlie the declaration of an exemption or an exemption certificate, although the exemption certificate is confined to two of the categories. The acid test, if you like, of the exemption is public interest, and that public interest argument has to be applied according to the criteria in the bill, and is open to review in every case except the small number of cases where the Chief Minister may use an exemption certificate.
The Leader of the Opposition also made a major play about: ‘Oh well, we took this …’, his draft bill, the one that he did not have the courage to bring in here, ‘… and we then sent it out to public consultation, and it brought it back in a diluted form’. Well, let me give the Leader of the Opposition a bit of a run-down on the amendments that were brought into that initial draft bill as a result of the public consultation:
We redrafted the Objects clause to make the whole spirit of the legislation pro-disclosure,
not pro-exemption.
back even further.
that is made through some other legislation, will be removed after three years, not five as originally proposed.
from exemption certificate power, removal of the ministers and power of delegation to CEOs, and substitution
of the Chief Minister as the only person with the power to issue certificates.
information received from bodies that would be exempt under other legislation. For example, land
councils are exempt under the Commonwealth law, as is ASIO, our security organisation. So they will
be exempt under our act to reflect the situation with other legislation parameters.
members today to have a look at how much this scheme is going to cost individual applicants.
now get a go at it, like non-naturalised applicants.
Moving to the member for Port Darwin. Clause 52(5) is not a set of exemptions. It may provide factors that may be considered in determining whether it is not in the public interest to release information. They already exist at common law. They could be applied as factors to be considered, even if they did not appear in legislation.
So you can see, member for Brennan, that contrary to your assertions in your contribution, we have actually moved, very significantly, as a result of the public consultation. The overwhelming effect of the amendments that we introduced into the original bill has been to increase access and increase accountability, and to clarify and extend the retrospective action of some of these provisions back into existing records.
I have said very publicly I am very comfortable standing here introducing this into parliament. Ultimately, it is going to be up to the people of the Northern Territory to judge whether we have done this job well. It is up to the opposition to acknowledge if this act is working well, as I am sure it will be. I hope to see a more positive attitude to it as we move through to the implementation, and all the issues that will probably come out of the use of this new legislation. It is going to be a very exciting, if scary, time. There will be times where the ability to take Cabinet documents out 10 years behind us is a growing edge that is following us along. Anything before that might reveal things that are still pertinent to members who are currently in this House.
But that covers at least the key issues of the debate, Madam Speaker, and that is all I want to say at this stage.
Motion agreed to; bill read a second time.
In committee:
Information Bill (Serial 85):
Clauses 1 to 44, by leave, taken together and agreed to.
Clause 45:
Mr WOOD: Mr Acting Chairman, I move amendment 25.1. I start by saying that the reason for these amendments is not to be negative towards this bill, it is to be positive. This is the sort of bill you actually should work in reverse. You should not be adding things to it because the more you add to a bill like this, especially with the exception clause, the more you will make it harder for people to access information and the more you will go against the very objects of this bill. What I am trying to do here is take away some of those clauses or exemptions that I do not believe are necessary. I believe that these exemptions will not make any difference if they are not there - you just do not need them.
For instance, the clause that we are talking about now, which is clause 45(1)(a)(vi), is basically saying that we will exempt anything that will:
That clause is so broad you can just about exempt anything through it because the words ‘generally made or endorsed by an executive body’ leaves the world open for someone to say that that generally could be something the executive body might endorse. That is a huge statement to make. It appears as though this has been added, a bit like a safety net: if some things might have escaped the exemptions, this clause certainly will pick it up. I would imagine the next clause will do exactly the same.
If the government is serious about saying that we are positive in our approach to people having information, if we believe in the objects of this bill, then I believe it should be omitted. It would do the bill a lot of good if it was not there at all. These ‘Executive Council, Cabinet and Territory economy’ type exemptions as written under clause 45 can, to some extent, strangle public debate. I know further on in this area that you are not to look at, for instance, information that might be prepared for Cabinet. However, sometimes that is the very stuff that people want to debate. They want to know what the agency was saying before the minister and the Cabinet made a decision. This clause 45(1)(a)(vi) just makes it totally impossible. There is nothing there that you can discuss, for people to be able to try and understand how a policy was made. So I ask the government to support this. It will not do them any harm not to have it in there; it is an extraneous clause of the bill.
Dr TOYNE: I am taking it in the spirit that you put it forward, member for Nelson. It is easy to read through the bill and start to imagine this vast body of information that is going to be squirrelled away as a result of this particular clause.
I can certainly say on two fronts - one is that any exemption placed over that type of document will be just as subject to the public interest test as any of the other exemption areas of the exemption categories. I believe - and I can certainly speak from my experience as a minister to date - that the volume of the type of documents that you are talking about and the type of contents that are there, we are not getting dozens of these a week or anything. It is where one minister needs to convey to another minister some information to coordinate their two processes. So you would probably be very disappointed if you saw both the number and the content of these types of documents.
But to clarify what clause 45(1)(a)(vi) is saying, it provides information is exempt under the executive body exemption if it:
I personally think with clause 45(1)(a)(vi) there would be no difficulty in categorising that as something that is moving on into Cabinet or not moving on into Cabinet. Not a great volume of documents are there. Most of them may never subsequently inform a Cabinet debate. They are all reviewable by the Information Commissioner.
I can see your concerns about width of the exemptions, but we really feel that there is no need to remove that exemption category.
Mr WOOD: Attorney-General, I have a couple of comments. If it really affects so few documents, my argument would be: why have it at all? It is really for a very rare occasion. The other thing is that, if it is meant to be aimed at decisions or policies endorsed by an executive body, then shouldn’t the word ‘generally’ be ‘specifically’? The word ‘generally’ is such a broad word that, even though it may never go to the executive body, it could go one day, or it might go. Whereas the word ‘specifically’ would be a much better word. In fact, that is the word I used in my speech that was used in other jurisdictions.
The other area that you mentioned is that, of course, people have the right to review. If you put in things that obviously are going to need to have the right to review, you increase the length of the process. If they were not there in the first place, you would not have to go down this long path. It adds to the bureaucracy; it is not needed. I hear what you say that there are very few times it would ever be used. It is one of those things that adds to the bureaucratic process and makes it a little harder for people, and is so rarely used I do not think that it needs to be there.
Dr TOYNE: I can immediately think of a number of topics that might be in a communication between ministers that would very quickly attract a public interest exemption. So, I do not think that the existence or non-existence of this category is going to be prevent the exemption going over the material we sometimes see in these papers.
I will give you a clue. Obviously, I cannot talk about specific matters that are in a particular document, but things to do with information about the health of a community. Perhaps there is an epidemic of gonococcal disease or something where it is quite sensitive and politically explosive material if it gets out, particularly by stigmatising a whole community of people. In my portfolios, in areas of Correctional Services with prisoner security, there are often matters that come through that would have no business going anywhere else. Yet, if I do not share that with some of my colleagues prior to, perhaps, a submission coming to Cabinet, it does make it quite difficult for us to make an informed decision.
We see this is as part of the protection under the Westminster structure of the solidarity of Cabinet decision-making. What I am saying, it is not in the same category as an exemption certificate. We are not talking about someone being able to unilaterally place that, we are talking about an exemption that has to be justified by a public interest test. I do not want to mislead anyone, so I am making absolutely sure. This is an exemption category that says that once that document has been identified as part of the Cabinet process, then that, as a category, draws an exemption. It does not have to be on the individual circumstance of that particular document, it is a broader category, but they are reviewable by the Information Commissioner.
Mr MALEY: Attorney-General, that is exactly the point which I have tried to make. You have these broad categories. If you look at the proposed amendment, to that clause 45(1)(a)(vi), and the word ‘communication’. What if the communication contained - remembering it is not something which is within the scope of clause 45(2) - material which did not have a prejudicial effect on the public interest, there was no harm, it was just communication between two ministers - a minister had been briefed by his department, and there was some sort of communication between another minister, and it turns out that there could be no harm caused by the disclosure of information? Would that material, on your interpretation, then be made available to the applicant?
Dr TOYNE: Technically, it comes within an exemption, but there is always a possibility of releasing, on the sort of judgments you are talking about, if there is clearly no harm to the public interest. Even though it has attracted that category as being an executive council/Cabinet document, there would still be the possibility for release, and that would have to be negotiated with the Information Commissioner.
Mr MALEY: Well, doesn’t that beg the question: why not draft it in such a way, in terms of the exemption, saying that this material is available unless the particular organisation can demonstrate there is going to be some sort of prejudicial effect on an individual, or there is some sort of identifiable harm - they are the words I think you used in that second-reading speech - rather than have this exemption, which can be stretched over really anything? Then it is really up to the government of the day to exercise its discretion to see whether or not that is going to be released. The criticism I was trying to draw your attention to is: you talk about rights and qualify that in terms of what sort of rights they are. Why couldn’t you say: ‘This material is available unless you can demonstrate x, a and b; for example, that it is going to have a prejudicial effect or, secondly, it is going to cause some sort of identifiable harm’?
The second query, in relation to the point that the member for Nelson made, which is a good point, the words ‘generally made or endorsed by an executive body’. Now, what does that mean? Why don’t you use the word ‘primarily’, or ‘specifically’? What if there is no prejudice to the public interest, there is no identified harm? Why isn’t the onus upon the public sector to demonstrate those two things? Why use such words, ‘generally made’? It is so broad, it really is not advancing the situation.
Dr TOYNE: We have made a distinction between exemptions that apply to the executive processes of government, and that it is generally accepted around the country that that species of decision-making, if you like, and the information that informs it, are best kept out of the public eye for the public interest. That is not our idea, that is in FOI regimes right round this country, and elsewhere.
We are not really talking, in this case, of a particular harm that might accompany one of these documents. We are talking about enclosing the inner part of government decision-making, the Cabinet and the executive council, in a secure zone where information can be exchanged freely without any fear that it be subsequently released or prematurely released. I guess what these two provisions are doing, is they are working at the boundary of that enclosed area. We are saying we believe that there are occasions where two or more ministers will exchange information prior to a process of decision-making being introduced into the Cabinet. They do require that freedom to, basically, exchange information, arguments and options, without fear of it being whisked away into a public process.
We maintain that the preliminary exchange of information between some of the ministers is integral to the process - certainly how we have experienced it as a Cabinet. We found that very often, ministers might have to work up a submission to Cabinet as a whole, which may involve the health minister and I working together, or the Minister for Community Development and myself working together, or any combination, depending on the matter. We believe that we should start with that boundary in place, if there are any concerns that come up on the part of the Information Commissioner about some overuse of that category - but I quite honestly do not believe that will occur.
Mr MALEY: Attorney-General, adopting your mentality, that means we would not do anything which is outside the scope of what is done in other states and, if every other state adopted that, we would be in this stasis, because no one would be game enough to push the boundary. The example that you talked about is precisely the type of mentality which many of the commentators are trying to get governments to be a bit more objective about.
In Queensland, there was a situation - and it seems that clause45(1)(a)(vi) would also avail the government of this opportunity. You could stamp almost anything as a Cabinet document and the moment it is stamped, because it is ‘generally made and endorsed by an executive body’, suddenly, potentially, it could come within the scope of that particular exemption. That is precisely the criticism which, it seems, all the commentators are making of the legislation. It is one which you are blindly accepting because that is what is done in other states. Can you not see that this piece of legislation and the rationale that you quite distinctly put forward, is the fundamental problem to you really coming anywhere near what you promised Territory people in parliament in April 1999 - not you personally, of course, your party. Do you understand what I am saying? It is fundamental; you have just put forward precisely the type of rationale which commentators feel is a fundamental weakness in this legislation.
If a Cabinet discussion is between you and the health minister, what if the discussion that you had - you had to make a decision and it was important and a decision was made - but it turns out that a crucial piece of information was not passed on to the health minister? Clearly, that communication would be exempt under clause 45(1)(a)(vi), and is the type of decision which should be reviewed. If it would turn out that the decision had been made in error, if that crucial piece of information was not before you and the health minister, how could a person possibly review that? Making the assumption that there is nothing that is going to be of a security type nature - there is no prejudicial effect to an individual; there is no identifiable harm - it is just something that comes in the category of a communication between two ministers as a result of a briefing from a government department which failed to take into account a crucial piece of information, it would be covered by that exemption. That is precisely the problem.
Dr TOYNE: Look, let us stop comparing this bill before us with the Queensland bill. They have what is now quite an infamous arrangement regarding the use of Cabinet classification, a ‘trucking’ clause that allows them to literally truck out, classify and take out huge amounts of documents. This is nothing like that.
The situation that we were addressing with those two provisions is that you might say: ‘Okay, if a crucial bit of information has not flowed from one minister to another and, therefore, a bad decision was made, and applicants should be able to expose that’. Equally, if the documents that pass between ministers are potentially able to be released, I can tell you right now there will be a huge amount of thought put into what actually gets written down between one minister and another if that is the kind of climate we are going to work in. If you are going to make the argument that these exemptions are going to operate to reduce the possibility of proper ministerial liaison between one minister and another, it could well have exactly the opposite effect. It could be that we all work on the phones after that and do not worry about documents, because they could end up any where in the community.
In a lot of these matters there is not a great volume of this sort of traffic, but the content can be quite volatile, quite sensitive. Certainly, we would have great concerns if there was a point at which, because of the boundary line that has been defined between Cabinet, executive council and these sort of preliminary documents leading into Cabinet, it would create quite a high potential for dysfunction.
Mr BURKE: I pick up on a couple of comments. Firstly, in terms of the fact that these decisions are all reviewable, minister, I assume you accept the caveat, notwithstanding the fact that you state it will never be used. The caveat is that it is not reviewable if the decision is made by the Chief Minister. As these things are all done in hindsight where there is an inquiry well and truly after the event, all of this documentation or communication may or may not have led to a Cabinet decision.
Your subclause here talks about ‘would disclose communication between ministers about the making of decision or the formulation of a policy is of a kind generally made’, it is not necessarily made in that instance but of a kind generally made by Cabinet, is the first thing. The second thing is clause45(1)(a)(vii):
So we are not just talking about communication between two ministers leading directly to a Cabinet decision. We are talking about all of the sorts of documentation that can come forward on any issue to brief a minister that may eventually lead to winding up in Cabinet. Now, under these two subclauses, firstly they are exempt, and secondly, they are not necessarily reviewable - reviewable if the decision is made by the public service and reviewed by the Information Commissioner. Notwithstanding the fact that the power is rarely used but, if the decision is made by the Chief Minister, not reviewable at all, and not requiring any authorisation that the information existed at all.
I would have thought that say, in your capacity as Attorney-General, there would be many instances where the Attorney-General would provide advice - to a department, to a CEO either directly or indirectly by you, yourself, or by your department, and advice to a minister on issues that may or may not lead to a Cabinet decision - around the formulation of policy of which your particular position could be critical in some investigation about such an incident.
For example - and you might be able to give me an example of what could be available - if we look at the letting of 4800 m of property where there was great concern from developers about the process that the government went through in terms of its decision-making to eventually award a contract to one developer, where there is clearly, in some peoples minds, a process flaw. There may or may not have been advice from the Attorney-General himself during part of that process as to whether or not the process was proceeding properly or not. Now, I am being hypothetical; I accept that. What I would ask you for is to say to me: how would you see that sort of information being interrogated and eventually released, or would you see that as all being exempt in accordance with the subclauses you have in this clause?
It may be that, by virtue of pure politics, the Cabinet may make a decision to decide that a member who has been caused to incur court charges because of a particular instance, that particular MLA will have to pay those court expenses himself. In that instance, I would have thought that down the track a bit, if that individual wanted to seek information on that decision-making by Cabinet, felt him or herself clearly wronged, had information or felt that certainly in a case of law, the Attorney-General’s Department itself may have provided advice to Cabinet during that process to suggest that the decision-making one way or the other was right or wrong, in the Attorney-General’s opinion. In that hypothetical instance, would you see that as falling into the category of being totally exempt, or would you say that is a situation where this information could be made public or could be reviewable, as you state?
I know I am using two hypotheticals, and I am not wishing to dwell on a particular instance, but it seems to me, as the member for Nelson is alluding to, that this is a catch-all subclause. It does not refer to the fact that ministers could not communicate with each other at all, but it can refer to, in many instances I would think, the ultimate duties of an Attorney-General in advising ministers, including the Chief Minister, as to their duties to the public. I know and you know, that the responsibility of the Attorney-General is clearly stated as superseding politics where the Attorney-General has a clear duty to the public. Would you ever see that sort of information - the advice the Attorney-General provided in the course of that decision-making - being made public?
Dr TOYNE: The short answer is: yes, I would. We have stated that these decisions are boundary decisions: what sits inside the scope of Cabinet decision-making and, therefore, should come under the category exemption that applies to executive government, or which decisions could be considered to be between ministers but on a different route than subsequently going in to inform a Cabinet decision. Now, who can review that? The Information Commissioner can review that. If the Information Commissioner is of the opinion, having reviewed the basis of a decision on a particular document, that, in fact, it is not legitimately going into a Cabinet or executive council process, even though it might involve two or more ministers, then he or she would be at liberty to reverse the decision.
Mr BURKE: Well, to pick up on that, you keep mentioning the public interest test all the time. Would you like to walk me through the public interest test that the Information Commissioner would apply? In doing so, how would you see him referring and interpreting those two particular clauses?
Dr TOYNE: I am informed that the decision that would be reviewed is the decision to categorise that document as being a document that was created as part of executive government. It is not a question of whether it is taken to mean that. If that document was released in public - and this is the general exemption category that applies to executive government decision-making all around the country - it is taken to be an inherent harm that if information coming out of that process is released to the community, particularly if it is part of an ongoing issue that Cabinet or executive council are dealing with. The decision that would be made would be: is this on this side of the fence; does it belong as a designated executive government document or isn’t it? If it is not on that side of the fence, if it is taken to mean that the communication between the ministers did not subsequently lead to a process within the executive government, it would be available for release.
Mr MALEY: I ask the Attorney-General to walk me through the mechanics of clauses 43, 44 and 45. We are talking about those two subclauses, but if I could just say this: isn’t the test - the general exemption says that if government information is exempt under this part, a public sector organisation is not required to provide access to it.
Clause 44 says, quite clearly:
Then in clause 45, the clause we are dealing with, it is a deeming provision. So, this public interest test is now really out the window. The real test is whether or not the information comes within one of the categories contained in clause 45(1)(a)(i) to (vii). So when you use, in a clumsy way: ‘Oh, which side of the fence, inherent harm’, and these type of words, which do not exist in clause 45 which is the deeming provision - so in other words, the Information Commissioner, who is, of course, a creature of statute, would have to look at it and go: ‘The information is exempt under clause 44 if the information …’, and go down to clause 45(1)(a)(vi), ‘would disclose a communication between ministers about the making of the decision … of a kind generally made or endorsed by an executive body’. Now, forget public interest. Assuming that the information comes within that category, and each of those elements is at least, in a general way, made out, isn’t it the case that the deeming provision deems that the information is exempt under clause 44, and the reference to the words ‘inherent harm’ which you just talked about, do not exist? Is that right, or have I made a mistake there?
Dr TOYNE: I daresay you have. Let us go down the spillway. The first thing is that all exemptions are based on some concept of harm, or harm to the public interest, if the information concerned is released.
Mr Maley: Where does it say that?
Dr TOYNE: That is the whole boundary that is built into these bills. In the case of the categories that we are talking about here, it is taken that you do not have to prove harm or detriment to public interest, document by document. There is a class exemption, which is basically saying that, once a document or piece of information has been identified as being attached to this area of government decision-making, there is a class exemption. You are saying that, for all that type of document, there is an exemption available. So the whole issue is to do with classifying a document as being either inside or outside that boundary.
Mr MALEY: This is what you were saying, in essence: if it is within that general class, then that is it, it cannot be reviewed, and it is deemed to have some sort of inherent harm. If that is the case, is that what you are saying? Even if you looked at each document, there was no prejudice, there was no inherent harm, it is just a deeming provision which deems that material – that is what your saying? So even if it turns out that no one could be hurt by this information being released, it would be real open and accountable government because it is what other jurisdictions do, you are saying. If it is called within that general class, which it generally, according to you, exposes the public interest to some sort of prejudice, that is the end of it, it is caught within that exemption. That is what your saying.
Dr TOYNE: Basically, what we are saying is that there is a decision made to, as you say, characterise it. The Information Commissioner can then review that decision and, if they decide that it is not justified to put it in that class according to the descriptors that are in clause 45, then they can take it back out again.
Mr MALEY: An Information Commissioner does not have regard to terms like ‘identifiable harm’ or ‘public interest’. All the Information Commissioner does is make sure that that information comes within the general scope of, for example, clause 45(1)(a)(vi). That being the case, then it is deemed to be exempted under clause 44. When you talk about reviewing the public interest, what you are saying is actually wrong. If you said that on radio tomorrow, that would be misleading. What you are saying is that all the Information Commissioner does is review whether or not that information satisfies the elements of clause 45(1)(a)(vi). That being the case, then it is deemed to come within the scope of clause 44, irrespective of the public interest.
Dr TOYNE: No, look, do not run away with the argument here.
Mr Maley: You might like to get some advice on that.
Dr TOYNE: The public interest is there and the potential harm to the public interest is still there in this category. It is just taken to be a class detriment to the public interest. Any document within that category will potentially harm the public interest. So, it is not that we have done away with the concept of public interest, we have just applied it to a class of information. Whereas, in the other exemptions, they are particular to the document and to the context, and then public interest has to be applied particularly. Okay?
Mr MALEY: Yes, I understand that. I appreciate that.
Mr WOOD: Could I take the Attorney-General up on that? I am wondering how we would ever know that it was against the public interest if we did not know what was in it. That is the bit that worries me in this whole section. How can people feel that they have been able to look at the process that led up to the Cabinet making decision? I am not saying they have to know what the Cabinet decision was. One of the difficulties I have is that people do not know what those processes were.
I know you said do not refer to other states, but I referred in my earlier speech to the state of Victoria, which has exemptions covering some Cabinet documents and delivery of processes. However, it also has other provisions that spell out the kinds of documents within an agency that are available, and that might have informed the decision-making process. It goes on to say the Victorian act requires agencies - requires them - to publish submissions prepared within the agency for presentation to Cabinet. It also requires agencies to publish documents and reports that have been prepared within the agency and for the agency that contain recommendations, policy advice, study results, assessment of policy, programs or projects, assessment of the feasibility of programs and projects, report on agency restructures, and instructions to Parliamentary Counsel.
You do not see that in our legislation. The reason I think that is important is because, to make sure that whoever gives out advice is giving good advice, and the only way you know whether that advice is any good, is whether it is open for public scrutiny. Whilst that may not be that great in this particular clause 45(1)(a)(vi), it certainly will be picked up in clause 45(1)(a)(vii) where the public loses that opportunity to look at the processes, because they are not open for public scrutiny.
Dr TOYNE: Member for Nelson, if we can get what it would look like in reality - applications for government information will have something in mind. I do not think the Information Commissioner is going to get an application saying: ‘I want everything’. There will be some particular issue that an applicant is anxious to be enlightened about through the internal process of government. They may have some information already about the processes that were going on in some government agency or on the part of one or more of the ministers, and they will go looking for the sort of information that would be attached to that decision process.
So, it is not a case of someone sitting in the lounge room thinking: ‘I wonder what sort of information is in the archives of the Cabinet office, or different agencies and sections of agencies?’ It would be much more directed to a process where they say: ‘Look, I want to know what happened with this decision by government, or what led up to the decision, or why a decision was not made’. It would be up to the agency liaison people, the point of first contact for that application in that area of government, to then spruik out where information regarding that matter would be deposited.
In the case to hand, if there had been a process attempting to find out about this particular matter that has been applied about, and it had reached this boundary where there were agency documents and people writing to each other at the agency level, and then it was clear that it had disappeared into a matter that was taken up between the ministers, then that boundary would have to be tested if the documents that occurred as part of that exchange had been categorised as exempt under that category. Then the Information Commissioner could potentially be asked to review as part of the complaints process. At that stage, the Information Commissioner would say: ‘Give us a look at these’, and check to see that they are exempt because of the correct application of those criteria.
I am trying to give you a practical picture of what is going to be happening with a lot of this stuff. You would probably know as well as I do - we are all in this caper - that if you seek information, you generally have a half idea of what has happened or what you suspect has happened. Really, what we are talking about here is just a boundary line that someone pursuing information around an issue may come up against. If they come up against it they will have the capacity, through the complaints process with the Information Commissioner, to test whether that classification was properly put on that document.
Amendment negatived.
Mr WOOD: Mr Deputy Chairman, I would not mind moving an amendment to lift the temperature in this House.
I move amendment 25.2. I do not want to repeat some of the arguments that we have had before, but one of the queries I have with clause 45(1)(a)(vii), is what was wrong with subclauses (i) and (ii)? Even though again I would refer back to the Victorian legislation where documents prepared for Cabinet can be published, surely we at least limit that in (i) and (ii) to documents that we know have either been prepared or will be prepared for the executive body. What we do in clause 45(1)(a)(vii) is basically pick up things further back along the stream that may, generally, be prepared, or may be endorsed by an executive body. We have gone one step further back up the line, and to me, that again limits. It goes against what we have been talking about. It makes it harder for people to get that information.
One of the important things - and you are probably asking for practical examples - if I was a member of the public and the government decided - well, I will give you an old debate. There is a debate about whether the mangroves should be 80% retained and 20% cut back. The government might have documents there - might have been given a submission from somewhere, from a department - which originally might not have even been for the department. It might have been just stuck in a scientific journal somewhere. But then they prepared a document to state the case of why 80% should be kept and 20% should be chopped down. The government then makes a decision in Cabinet agreeing with that information, and that is it. There needs to be an opportunity for the public to say: ‘Okay, government, you have made a decision but can we have a look at the documentation upon which you made that decision so that can be ratified or challenged?’, because that is the part of the process that is important to look at. Governments make policy based on information given by departments. If that cannot be challenged by the public, then you really do no have the public taking part in the decision-making process, which is very important. All you have done with clause45(1)(a)(vii) is taken that decision-making process further away from the public. You have it already in subclauses (i) and (ii). Why have it in subclause (vii)?
Dr TOYNE: First of all, there a number of ways of challenging government decisions. We know a number of them in this House itself. As in the category, clause 45(1)(a)(vi) that we have just debated, this is also in that same kind of boundary line, and I would expect that the same provisions apply to it. If an applicant is unhappy that it has been taken into that class exemption and suspects that there may be some misapplication of the criteria that give it that classification, they go to the Information Commissioner with a complaint and say: ‘Can you review this?’.
Beyond that - and I would make this point here seeing Queensland has been mentioned, quite wrongly in the relationship to the bill we have here - I do not think there would be anywhere in Australia where people do not know about the misuse of Cabinet classifications in the Queensland act. It is quite clearly being abused, or has been in the past, and that becomes a political and community issue because, ultimately, there is a level at which we are answerable back here for not just to the individual decisions, but the general approach to the operation of this act.
If we are not honouring the intent of the act; if we are misusing categories to the extent where we can influence the process - because we are not putting these exemptions on, it is not us as ministers - then we are answerable back here and also to the community out there. So you have three levels: the Information Commissioner, the complaints process and the courts behind that if you needed it, and then these political and community levels.
Mr WOOD: But, you as government, of course, are putting these exemptions in first. You are creating this legislation which has these in place now. All I am saying is, if you look at subclause (i) it is fairly specific: it was bought into existence for submission to and consideration by an executive body whether it had been submitted or not. At least you knew that that piece of information was being brought in specifically. The same with the next one. But this one, as I said before, is like the catch-all, and I find it hard to believe that it really needs to be there. It could be used for political purposes. You could say: ‘Well we can conveniently make an excuse that we do not want this bit of information to go out, it is a bit embarrassing, we really think it was generally made for an executive body’. That is it. You just have to go on the belief that it is.
I know, as you say, it could be reviewed and all that, but I still think that all that system adds to bureaucracy, and does not need to exist. The object of this act is to try to make government more open and transparent. I get the feeling that by subclauses (v) and (vii) we have actually gone in the reverse. All I am saying is that by trying to omit these is actually trying to make this legislation better, not worse. These additions to the act were actually counterproductive. I have supported what the government is trying to do in bringing in FOI, but I really think these are going down the wrong path. I know you said before that we can tighten things up and make them more focussed, but there is a danger there. I think the member for Macdonnell said: ‘Yes, we can also add things which then make more exemptions’. We should be working in the reverse.
As I said before in my speech, we have to ask ourselves what harm will it do for some of this information to be open. I remember having - and perhaps if I go back to my days on the Litchfield Shire Council - two forms of meetings. You have your general meeting where the public come along, and you have your committee meetings. We stridently hung onto the process that committee meetings, which are a bit similar to Cabinet, should remain open. We very rarely ever used the in-camera type meeting. We said: ‘If the press turns up, well. what we say in those meetings should be proper. We should not be ashamed of anything we are saying at that meeting. We should not be saying anything nasty about people. We should not be saying silly things. We should be conducting ourselves at that meeting so that, if the public turns up, they can hear exactly what we say’.
Mr Burke: Have the press go to Cabinet, what’s wrong with you? Show a bit of openness.
Mr WOOD: To some extent, openness, yes.
It might not have worked all the time, but the goal was to keep the Litchfield Shire Council, in this case, meetings as open as possible so that the public could, generally speaking 98% of the time, would attend those meetings and hear everything we had to say. That is an important thing with freedom of information: we aim for the highest. I sometimes think we have not quite set the hurdle high enough in this case.
Dr TOYNE: We will take on boarders and deal with it all together.
Mr ELFERINK: Mr Deputy Chairman, I think what the member for Nelson is trying to say is that we have the map for a racing car here, and then the minister is putting a Victa mower motor in it to make it run. That is part of the problem.
Perhaps I can assist the minister in relation to the answer he is trying to give. I direct him to a case called Sankey and Williams. I can give you a reference if you like, minister: 1978 142 CLR 1. That particular case decided that there was no such thing as a class of exemption at common law. However, in subsequent legislative reform, the Administrative Appeals Tribunal, as well as the federal Freedom of Information Act, did create a class of exemption. Now that has nothing to do with the public interest test. We will be debating that shortly. In this case, we are talking about a class of exemption. So, there is good legislative structure for the class of exemption. I believe that is what you are trying to say, minister.
As I understand the member for Nelson, his problem is that there are too many classes. As I understand Sankey - and I could be wrong about this - one of the problems that the presiding justices had in that particular matter was that, if you build a class, then a government can avail itself of the ability to create as many classes as it likes, therefore, through a back door, exempting as much as they please.
I am quite sympathetic to the member for Nelson’s position, inasmuch as that you are now creating more and more classes. Clause 52 is going to end up almost irrelevant by the time you have these classes being stacked up in the system. That is really the problem here, minister, that we are building classes. The more you pad up this act, the more exemptions you are going to create. It has nothing to do with public interest tests at this level, the public interest tests comes later on.
Dr TOYNE: I would reiterate that this is about putting a boundary line around one of the two class exemptions, which is the executive decisions of government. I would say to the member for Nelson that, while we may be putting a Victa mower with a few documents stacked on top of it in place, we have taken a super tanker full of deliberative documents out of the exemption categories. In fact, one of the most significant changes to the bill was to re-launch deliberative documents into the particular exemptions so that they are fully accessible by the Information Commissioner to review by applicants through the agency processes.
We have delivered a huge step forward from the original draft bill, in the amount of material that will be available through agencies. We have had, earlier in this debate, that we are trying to balance these two principles: one that you do not want to visit harm on the public interest because of the inappropriate release of information but, balancing against that, you want to maximise the access of the general public to this sort of information.
I can see a lot of issues that we would be working on between ministers and through Cabinet and executive council, particularly Cabinet. As it says in the bill:
Well. that is the Cabinet or I guess, individual ministers developing that and taking it to Cabinet.
I would be very concerned – well, let us take some examples, because the more real we can make this, the better we can judge what we are trying to do. Land tenure, such as handling of native title, involves me as an Attorney-General, the Minister for Community Development, the Minister for Infrastructure, Planning and Environment – he is going to hit me soon. So, if we are going to make a major change, or put a major policy setting into place as a government, we would not want that deliberative process to be well known to the land councils, the developers or the miners, at the time that we are trying to look at options, because the moment any information gets out into the public domain regarding those type of issues - it is a highly emotive thing, there is a lot of vested interest in there. We could not make a decision in a rational and considered way if we are being bounced around by one or more of those bodies whilst we are trying to work out where we are going with that policy.
That is an example in the policy area, where those sort of documents can be very sensitive in their own right, even though they are not strictly within a Cabinet submission. I hope I am well enough known in this House now to say that, if problems arise, we will have a look at them. If this does not work out in the pattern that we are expecting, we will be as concerned as you will be. We do not want to see a huge black hole appear where there is information out of access for people of the Northern Territory. Certainly, if it means anything, I will give you my word that I will be trying to prevent exactly that.
Mr MALEY: Attorney-General, you talk about a number of the divisions being lifted or relying upon examples in other jurisdictions. Was clause 45(1)(a)(vii) lifted from another jurisdiction, or is it a new clause, a new category, a new class, on instructions from you to your Parliamentary Counsel? It is brand new, is that what you are saying?
Dr TOYNE: Yes. It came into the bill as part of the general instruction that Cabinet gave the department, to basically model the FOI part of the bill as closely as possible to Western Australia. Then it came back to us after that, so this is one of the elements that was imported in from the Western Australian act. Our information, as I have said several times now, is that the Western Australian act is working very well and with the approval of the Western Australian people; so we thought that is a good place to start.
Amendment negatived.
Clause 45 agreed to.
Clauses 46 to 51, by leave, taken together and agreed to.
Clause 52:
Mr WOOD: Mr Deputy Chairman, I move amendment 25.3. Again, there has been some discussion. Some people have said that this whole clause 52(5) probably should have been deleted because it is so broad. Again, it covers so many things that you would wonder if people really had an intent and did not want something seen by the public they could pick one of those - (a), (b), (c), (d), (e), (f), (g) - and probably hit the nail on the head. If we take (e), certainly that is an example of very broad exemption class.
If you just take the two words in there, ‘risk’ and ‘mischievous’, well what is the risk? What does it mean? The risk could be anything from nought to 100. There is probably a risk every time one discloses information that someone is going to use it for a purpose that could be mischievous. But I suppose that is what politics is about. It is about what the media is about at times. It depends on what your interpretation of ‘mischievous’ is. That is just one of the risks you take in having freedom of information. People might use it for purposes other than it was intended but, then, I suppose we have to be clever enough to argue the case that the information that is going out is not correct and we state our reasons why. I would rather that you took that risk and did not have it in there. Once again, it makes for more open and accountable legislation, and probably using similar arguments to what I used before.
Mr DEPUTY CHAIRMAN: Let the minister confer with his advisor.
Dr TOYNE: Thank you, Mr Deputy Chairman. My advice is that that particular phrase was imported into the bill as a result of its use in New Zealand as part of their FOI regime. That has already been substantially tested in their court so it does have a legal standing due to the precedent of those earlier decisions. On the general point you are making about the identifiers, these are identifiers that will be taken into account when a decision has been made as to whether to put a particular exemption onto a document in this second category. These are not class exemptions; they are general or particular exemptions.
The public servant who first handles the application has these identifiers available to them to guide their decision as to whether public interest has been contravened by the release of a document but, equally, so does their superior within the agency. So does the Information Commissioner and so does the court, if it comes down to a testing of the initial decision.
Mr WOOD: The court could not, unless it was on a basis of law, argue the case of what ‘risk’ or what ‘mischievous’ was, could it? Under the act that says you can only discuss matters applying to the law, would that be able to interpret what ‘risk’ and ‘mischievous’ is?
Dr TOYNE: Yes, absolutely. A court could take the matter up as to whether those criteria have been correctly applied during the process that the act is requiring. It could also take up issues of natural justice, if there has been some decision made that clearly has not given a fair go to the applicant. They could certainly test whether the due process had been applied, including these identifiers that should be informing the decision as to whether a document or information is exempt or not.
Mr ELFERINK: Mr Deputy Chairman, this is coming down, of course, to the public interest stuff. I have to confess that I have not read New Zealand cases in relation to this. I did not go beyond Howard v The Treasurer of the Commonwealth of Australia, I am afraid. What I find curious is that this section does not operate in a vacuum. The legislation that surrounds the legislation in New Zealand, I am almost certain, is capable of being reviewed judicially. The legislation that exists in Western Australia is capable of being reviewed judicially. I believe, also, that the Administrative Appeals Tribunal can actually function as a body of review in relation to the decisions taken in relation to freedom of information legislation in both Western Australia and, I am sure that there is an equivalent, in New Zealand. This legislation does not have that review process attached to it. This legislation stands as a pillar on its own without a review process attached to it other than the commissioner, noted in there - and I have my own comments about the power of the commissioner.
I refer to the case of Howard v the Treasurer of the Commonwealth of Australia because, not only are the subclauses in clause 52(5) almost parroted out of that decision - the decision being on pages 634-5, that is those public interest issues - they are almost parroted in this legislation. That is not necessarily a bad thing. Justice Davies, I am certain, is a wise fellow. What concerns me is that, out of the five options that arise out of Howard, seven appear in clause 52(5) of this legislation.
I have no problem with the new addition in clause 52(5)(d), but the additional clause 52(5)(e) which is currently under debate, seems to have dropped out of a vacuum. I am told it has dropped out of New Zealand, but in New Zealand they have a review process. The Attorney-General says to us: ‘There is good case law out of New Zealand saying what “mischievous” is’. There is no right of appeal in this instance. Only on a question of law can something be taken to the Supreme Court of the Northern Territory under this legislation. What will the Supreme Court do? They will say: ‘This is our decision’, and flick it straight back at the Information Commissioner for him to make a decision accordingly.
The problem with this subclause is that it is not subject to judicial review. In fact, that is part of the problem with this whole act. So words like ‘risk’ and ‘mischievous’ are not really there for the courts to interpret; they are there for the public servant who is making the decision to interpret. That is the problem that I have with this subclause.
Dr TOYNE: Mr Deputy Chairman, I have been informed that clause 52(5) actually draws from a number of judgments from administrative cases. It is not just the Howard v Treasurer that you are referring to. Further to that, I have said repeatedly that, in this area of exemptions, the only exemptions that cannot be appealed or reviewed are the exemption certificates, one very small category. This category can be reviewed by the Information Commissioner.
Mr Elferink: No, that is not correct.
Mr Ah Kit: Just because you are an ex-policeman doesn’t mean to say you know all about the law, you mug.
Mr Elferink: Why don’t you pull your head in? Why don’t you actually listen to what this argument is about?
Mr DEPUTY CHAIRMAN: Order! There is talk across the Chamber. The minister has the floor, and I would ask members to refrain.
Dr TOYNE: To take up your point about what constitutes a question of law as regards the provisions within this bill, the interpretation of ‘mischievous intent’ would be a question of law. It would be quite proper for the Supreme Court to test that through a court hearing, as to whether that had been correctly interpreted and applied by a public servant on application from the Information Commissioner as part of the review process.
Mr ELFERINK: Mr Deputy Chairman, I am a little confused now that we are talking about this particular subclause, that it is quite proper to apply to a court. Could the minister tell me what this means: ‘despite any other act, and except as provided by this act, no person or body is entitled to investigate, inquire to, review, otherwise call into question an act or decision of a public sector organisation or the commissioner under this act’? What does that mean? If it means a judicial review is available here, then why is that clause in the legislation?
Dr TOYNE: Why didn’t you get a briefing? We do not accept what you are saying about the lack of a reference point to the Supreme Court. It is quite clearly spelt out in the bill. It is one of the procedures open to the Information Commissioner.
Mr ELFERINK: I would like the Attorney-General to direct me to exactly where the judicial review process exists in this act.
Dr TOYNE: It might help if you read it. Do you want to proceed, Mr Deputy Chairman, while we are getting this information?
Mr ELFERINK: A point of order, Mr Deputy Chairman. I do not want to proceed. I would like for the Attorney-General to direct me to it right now.
Mr DEPUTY CHAIRMAN: All right, member for Macdonnell, we will allow the minister to take advice on this matter.
Dr TOYNE: Thank you, Mr Deputy Chairman. I hope you have read this bill. Clause 130, Appeal to Supreme Court:
(1) A person aggrieved by a decision of the commissioner under this act may appeal to the
Supreme Court on a question of law only.
We have explained to you that a question of law can actually go to the criteria that have been used to make these decisions within the bill:
(a) confirm or vary the decision in whole or in part;
would have been available to the commissioner;
(c) remit the matter to the commissioner for further consideration; or
(d) dismiss the appeal …
Mr ELFERINK: Then I am certain the good minister would have no problem supporting me, if he believes in the judicial review process so strongly, in one of the omissions or amendments I have already flagged - he should have received the bit of paper now - to delete at a later stage when we come up to this debate, from clause 130(1), the words ‘on a question of law only’. But anyway, we can get back to that debate later on.
Mr MALEY: I find it offensive that you have enshrined in legislation a provision which allows, it seems, a public sector organisation, in the course of considering whether or not something is in that first category that is exempt under clause 50, to make an assessment as to whether or not the disclosure of some information will result in a mischievous interpretation. That is offensive. That means, and demonstrates, you do not trust Northern Territory people.
It really goes a long way in demonstrating the huge divide between the trendy socialist attitude you have, as compared to the free-minded liberal CLP approach. Can you confirm, and explain why you are not deeply offended by such an outrageous categorisation? Fancy asking a public servant - some bureaucrat - to decide whether he thinks there is a risk that this may create a mischievous interpretation. That is outrageous in demonstrating you do not trust Territorians. Is that the case?
Dr TOYNE: Ah diddums! Really, heavens above, crocodile tears over there. This is a known principle within the New Zealand system. Public servants can make whatever decision they like, on whatever of these criteria appear to match the case, the document or the information that they are being asked to judge on. Whether that is acceptable or not to the applicant would have to be tested. If it is not acceptable to the applicant, it can be tested; it can be reviewed by the steps that I have outlined time and time again. I do not see the way you are seeing this. This seems to work with the Kiwis, and like everyone knows, they are not that …
Mr Maley: Look what it has done to New Zealand.
Mr WOOD: Oh, that has started it. Could I ask a very straight question: why have it there at all?
Dr TOYNE: Well, I can say that one of the advantages of bringing in this Information Bill 20 years after the first legislation came into Australia, and many years after many of these other jurisdictions brought it in, is that we can learn from their experiences. If that has been included and regularly used in the New Zealand regime, presumably it is there for a good purpose; that they are getting mischievous, or vexatious actions by some of the applicants. I cannot give you the detail of that, but that is why it would be there, and being used.
Amendment negatived.
Mr WOOD: Mr Deputy Chairman, I move amendment 25.4. I suppose on a similar vein, in clause 52(5)(f), the key words to me are someone trying to interpret what is going to lead to confusion and what is unnecessary debate. I again think we are dealing with very subjective words there. You have to ask: ‘Well, so what?’ If there is a bit of confusion caused, and a bit of unnecessary debate, so what? There is a lot of that; it happens in here, and we do not stop that happening. It is a little like having an overkill.
If the government is worried about confusion and unnecessary debate, well, they should be clever enough to overcome it by necessary debate and good arguments. I do not think one should worry too much about whether you should have confusion and unnecessary debate, to put it in a bill like this. Again I say, by taking it out you make a better bill; by leaving it in, you make a bill that is just adding exemptions to what should be a much more open bill.
Dr TOYNE: Look, it is the same general answer as before, member for Nelson: we are going with early court testing of these criteria. I can only say that there clearly would be examples of release of information that has led to confusion and unnecessary debate. I can think of examples where there is, say, an incomplete picture. Take your example of the Elizabeth River bridge proposal. If you got half of that document and not the other half, it might well touch off some ill-informed or confused debate with the stakeholders.
Clearly, it has been identified by earlier court testing as being a valid criteria. If the public servant making the decision does not feel that that applies to the area they are being asked to consider for exemption or release, they do not use it. It just says ‘may’ consider the following matters.
Mr WOOD: But isn’t it like saying discretion is the better part of valour, that type of argument? Wouldn’t it be better to go on the path of less exemptions, more openness, and take that risk? What it seems to me is that we cannot afford that risk because it could cause some problems, therefore we will make sure that we do not have those problems and will put in this clause. In other words, we are working on the safe side, you might say, whereas I think we really should be working on the risky side and see how it goes with less exemptions - the ‘suck it and see’ process. Don’t always be too much worried what one particular jurisdiction has. Maybe we need to be a bit innovative and say: ‘Well, look, let us not have that there and let us see how it goes’. It might cause some embarrassment but if it strengthens the principle of openness, then let it be.
Dr TOYNE: Five years from now when this bill, or the act as it will be then, is being thoroughly reviewed and, if necessary, overhauled in areas, if that provision has not been used except in rare occasions or never, we will hoick it. If it has been used regularly then, clearly, we have saved the Territory people a lot of confusion and ill-informed debate. So either way, there is no harm if it is not used, in that it will just simply lapse into history. If it is used we are preventing harm.
Mr MALEY: Mr Deputy Chairman, my question is really along the same lines as the subclause above. The message this sends out to the people of the Northern Territory is that some bureaucrat in a public sector organisation may have regard to that subjective criteria. He is of the view that the information will lead to some sort of confusion and unnecessary debate. That is outrageous, and the example you used was simply appalling. We have the Elizabeth River debate and there are only half the documents there. For some reason the other half are on your desk and, therefore, you say that is an example that would lead to confusion and unnecessary debate. That flies in the face of parliamentary democracy. Can you state on the record why you are not opposed to that ‘big brother’ mentality?
Dr TOYNE: I can only reiterate that these criteria have come out of previous court hearings and findings. I personally see it very much as an aspect of good government if we can prevent confusion and unnecessary debate based on less than the full facts of the matter. We get enough of that in here without forcing it on the Territory population as well. I do not see your outrage. I am quite comfortable with the origins of these criteria. They have come out of the careful testing in the courts, and we are prepared to proceed with them and, like everything else in the bill, we will review it further down the track and see how it is all working.
Mr MALEY: Well, can I just put this practical example to you. If an application was made to get hold of all the Year 12 results of all the public and private schools so some comparison could be made, and this person could then decide which school they are going to send their child to, it is quite possible then that some person in the Education Department could form the view that: ‘We are not going to give you that information because it could lead to confusion and unnecessary debate’. In other words, you can stretch that exemption to really cover anything. That is what we are saying.
Dr TOYNE: I am advised that the example you are giving is not a deliberative process and, therefore, does not come under these provisions.
Mr MALEY: Okay. I will qualify that example. You are right. I apologise for that. So you are saying a decision relating to the allocation of teachers to schools - and that decision is made, of course, by the Education Department - and we are pretty sure that it has something to do with the results in Year 12 or it might be because of the race of some particular people they have decided to increase. You are saying that that information, because it is of a deliberative nature, could come in the scope of section 52(5)(f) and create, technically, unnecessary debate? It could be stretched to cover that sort of application?
Dr TOYNE: You could take as an example that there might be an options paper circulating that is considering, amongst other options, closing down one of the schools in Palmerston or in Alice Springs - a deliberative document. If that is released as such straight out into the general public, I can tell you what would happen in Alice Springs. That is probably a good example of what we are talking.
Amendment negatived.
Mr WOOD: Mr Deputy Chairman, I move amendment 25.5. Clause 52(5)(g) should probably be referred to as the ‘red faces’ clause because that appears to be what it is all about. It appears to be trying to cover up the possibility that someone made a bit of a stuff-up in some of the information that was given which could have made the decision-maker look a bit silly when, if they had the right information in the first place, they probably would not have said what they did. The easiest way to fix that up is to just get rid of the whole of clause 52(5)(g) and make sure all the relevant information is disclosed in the first place. I do not think it has anything to do with openness and transparency; it is more or less covering up the possibility that someone did not give all the information in the first place which is an error, not something that should be the reason for not giving the information in the first place.
Dr TOYNE: The intent of that particular provision, clause 52(5)(g), is to protect the integrity of the decision-making process itself by confirming that officials should be judged by what they decide, and not for matters that they considered before making up their minds.
As to the third basis for the privilege in the case that this came out of, Judge Wald in Coastal States Gas Corporation v Department of Energy 617 F.2d 854 (1980), at page 866,expressed it in terms of protection against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not, in fact, the ultimate reasons for the agency’s action.
What both the court decision and our inclusion of that in this document is that, if you are going to put out decisions made by a public servant or an agency, it is only fair to the agency as a principle - and these are principles that can be applied - that there is clearly stated the reasons. Now, they might have made a bad decision, they might deserve a bullocking for what they have done, but it has to be based on an accurate picture of how they came to that decision. We are not saying: ‘Oh, gee, we might get a bit of angst from this, don’t let it out there’. It is basically saying, if you are going to be judged for what you have done, it has to be judged on the actual facts that led you to the action and decision that you took.
Mr MALEY: I hear what you are saying, not that I have read that decision, I am not familiar with that. But is not the response to make sure that the material upon which the decision had been made is out there and, if there some documents which are misleading, then it is really up to the government, to the public sector organisation producing it, to make sure that the public is properly informed. That is part of the debate. Would you agree that this particular provision really goes down the path of protecting the bureaucrat, as opposed to being of any benefit to a potential applicant? It is really up to the public sector organisation, the government of the day, to ensure, if the rationale and documents relating to a deliberative process or a decision of sorts, that the right documents are there; that the full picture is given to the public because, ultimately, these people have to make an informed decision. Would that not be the appropriate response, as opposed to some fairly lame and cagey subclause exemption?
Dr TOYNE: When you read the wording of it: ‘… the disclosure of information that does not fairly disclose …’. It is not saying you cannot disclose information leading to the decision that was made. It is just that you should not, as a matter of principle, release information that unfairly depicts how that decision was arrived at. So I do not think what you are saying is a valid concern there on that wording.
Amendment negatived.
Clause 52 agreed to.
Clauses 53 to 62, by leave, taken together:
Mr BURKE: Minister, with regards to clauses 60 and 61, clause 60(2) says:
I assume that refers only to the exemption certificate issued by the Chief Minister which, I understand would be in a separate form to any other decisions that are made, that would be made in terms of an exemption certificate by the Information Commissioner.
Dr TOYNE: Under the three categories, yes. The only place where an exemption certificate can be made is the three categories that are open to placing of a certificate, which are: the executive area of government, security, and the third one is private and cultural information. They are the only three areas where an exemption certificate can potentially be placed over some document or information. It is not reviewable by the Information Commissioner. So, that is all there is.
Mr BURKE: I am pleased you made that clarification. I am happy to stand corrected, but, as I understand it, there is clause 44, which talks about this thing called:
It then goes through a whole series of additional clauses and subclauses of all of those areas that are under clause 44. In referring to items under clause 44, it actually refers to that clause in reference back to it. For example, if you look at clause 49 under the bill, or clause 47, it says information is exempt under clause 44. And in clause 49, information is exempt under clause 44.
Are you saying, categorically, that in the case of the Chief Minister, an exemption certificate can only be issued under clauses 45(1)(a), 45(2) or (3), 46(1) or 56 only? Or can the Chief Minister, in deliberating under all of those areas of exemptions under clause 44 - which seems to me, logically, would be the case – that, where there was concern under any of the clauses from 45 onwards, where the public sector organisation themselves felt that there were sensitivities that they did not wish to release information, did not feel it was information or reasons they needed to provide to the Information Commissioner, would refer directly to the Chief Minister, who would then give an exemption certificate under any of those provisos? Is that the case?
Dr TOYNE: You are quite right that the issuing of exemption certificates is limited to those clauses, or the provisions that you were referring to. I will confirm for Hansard, clause 61:
Which is your first area, the executive government areas:
Mr BURKE: I accept the tone of what you are saying. Perhaps there is a drafting or interpretive problem here, because, if you follow the logic of your act, the Chief Minister makes the decision by way of an exemption certificate, and has no requirement to give reasons for that decision or refer to the areas in which she may have decided to make that decision. There is no appeal against the decision by the Chief Minister and, in fact, if you look at clause 61(2):
So, how can you possibly guarantee, except on trust that, in issuing an exemption certificate, the Chief Minister is only referring to information that could be contained under those three categories? It seems to me, except as stated in the legislation, there is no other mechanism to guard against an errant Chief Minister, Premier, or whatever - and there has been several of them in the past - who could use that exemption certificate to roam broadly into any area of clause 44. Because they are not required to provide any reason, any justification, or any area of reference, they could exempt anything they decided.
Dr TOYNE: I guess the major protection for overuse of that category, or that exemption certificate power, is that the Information Commissioner has to be informed of each exemption certificate that is placed on information - not what is in the information, but the actual action of placing an exemption certificate over information. That has to appear before parliament, with the annual report of the Information Commissioner. So, to that extent, parliament would then be able to scrutinise. If you had, as you were saying, an errant Chief Minister who decided that they rather liked putting exemption certificates on things, that would show up very quickly in the returns back to parliament in the annual report. It becomes a political problem then for the government of the day and the Chief Minister concerned, which they may or may not care about. It depends on how you read the mood of the electorate on these things.
Mr BURKE: I accept all that, but the reality is, one decision could be the methodology used to protect a government, or an individual minister - just one exemption certificate. So, it is not as if you need a raft of them before corruption occurs. We are talking about what is the check, and there is none. That is what I am trying to get you to explain to me: that there is no check, in fact, on the Chief Minister in the issuing of that exemption certificate - anything except the trust of the Chief Minister in her authority and integrity.
Dr TOYNE: You have to learn to trust yourself, member for Brennan, at the time you were there.
The act does confine the exemption certificate powers to the categories, as I read out just a moment ago. Any exemptions put on other types of information is ultra vires - it is beyond the power given to the Chief Minister by the act. If it is in that category; if there is reason to believe that information has been tucked away under an exemption certificate outside the prescribed scopes of types if information, then it can be tested right through to the courts.
Mr BURKE: With respect, minister, explain to me how you could test that in a court. Explain to me how you could, through this act, test corrupt activity through the issuing of an exemption certificate.
Dr TOYNE: I am advised that testing of an individual’s powers under which they are authorised to carry out some function is a known process within the courts. Essentially, the hearing is to determine whether - and it could be brought on by the Information Commissioner or by the applicant. But if either have reason to believe that the Chief Minister has placed exemption certificates over areas of information to which they are not empowered to exempt under the act, they can be tested in court with an ultra vires hearing.
Mr MALEY: Attorney-General, I understand the three categories upon which these certificates can apply. But isn’t it the case that you have put the integrity of this legislation in the position that a politician is making that determination under clause 61? In terms of creating and maintaining public confidence in the FOI system, would it not be the case that the last person you would want would be someone who is likely to be affected by the material being disclosed? Don’t you agree that having the Chief Minister or any other minister making that decision, certainly from an objective perspective, could erode the public confidence in the legitimacy of the issuing of an exemption certificate?
Dr TOYNE: I do not accept that and, in fact, on a lot of these issues it really is your opinion, my opinion. The real opinion that matters will be how the operation of the act is accepted over time by people as they start to use the provisions. But I can certainly say that, from the initial draft bill - the exposure bill that went around during the public consultations - we have drawn that area back enormously to a single person and a single process. Whatever concerns you might continue to harbour about that, I believe that no person is more answerable to the Northern Territory people than the Chief Minister. It would very quickly become a political issue if there was abuse of that power. Equally, it could become very quickly a legal issue if an applicant decides that that exemption certificate has been put over a category of information to which the Chief Minister is not empowered.
Mr MALEY: I hear what you say about if there were some sort of mala fides, but the practical prospects of reviewing a decision by the Chief Minister, which may be a decision concerning information which is potentially damaging to the government of the day, is effectively nil.
I did not say this in the debate but, if you had someone like the Information Commissioner as the person vested with the responsibility of issuing exemption certificates - and, hopefully, your government has enough brains to appoint someone with some legal qualification as the Information Commissioner if it is not going to be the Ombudsman - you would think that would instil that sort of public confidence, and you would avoid the real risk of the Chief Minister, just a politician, making a decision to exempt material which could affect the government of the day. I accept that, whilst there are some administrative type avenues available, at a practical level it would almost be impossible to review that decision.
Do you not accept that general proposition that the Chief Minister is the wrong person - it is nothing personal, just the wrong person - and perhaps the insertion of the Information Commissioner in this role would help firm up public confidence?
Mr Henderson: You guys would not release anything!
Dr TOYNE: Look, governments come and governments go and they all have different characters. If you are looking at a person of statutory position having virtually right of total access across the most sensitive of security issues - issues that we might have with federal security agencies, things that might touch on Aboriginal cultures and secrecy areas of Aboriginal culture - there are areas that occasionally crop up where you really do have very sensitive material in front of the executive group, or where you are working through security and law enforcement issues, and cultural and privacy issues.
I can only point to Western Australia. It has not happened yet in three years, and we would be similar to the earlier discussions we had on the member for Nelson’s amendments, that we have a genuine commitment to making this work as an open system. If we are finding that there is a dysfunctional area appearing, we will refer it back into a review process and change it.
Mr MALEY: In terms of that comment about referring it back to a review process and changing it, Attorney-General, you would agree that, having regard to the small size of our jurisdiction and what statistics I could glean from access to information under the federal FOI legislation, it will be very difficult to really draw any conclusions about the effectiveness of, for example, clause 61, having regard to the small jurisdiction. Would it not be better to have a fairly open and frank discussion about it and try to put in the best structure possible and the best laws for the people of the Northern Territory? I hear what you say about the hypothetical about some defence type aspect or a traditional customary indigenous secrecy type matter, but I assume the Information Commissioner will be a person suitably qualified who is answerable to parliament, not just the government, and whom Territory people can trust.
Dr TOYNE: It has been pointed out here that there is a potential conflict between the role of an Information Commissioner monitoring decisions that are being made and reviewing decisions, and making decisions in their own part; because who reviews them? The other point I would make with it is that you say this is a small jurisdiction. If you wanted to find the most vulnerable person to political and popular opinion, it would be the Chief Minister, because there is no place to hide in the Northern Territory from a perception that you are mistreating the public interest. That was our thinking on it.
I can say that the Information Commissioner, when they begin work - and that will not be far away - will be fully engaged in the implementation activities with the agencies, and that will probably take up a fair degree of the early work that they will be doing. Over time, there will be a more and more strategic view of the act on the part of the Information Commissioner. I would imagine that these issues will be regularly looked at. Once it comes to the review, I would hope that they would be reflected in the review references so that we can look at it, because we know and believe that this will not be mistreated power.
I certainly have every confidence that our Chief Minister will not misuse that power, and it is for all of us to judge. You all have the ability to see how often those certificates are used over each year. You have the ability to go out and tell people whatever you like about our honesty or integrity in the carriage of the principals of this act, and that is only proper. It is the environment that I would hope this legislation is going into, that we all take collective responsibility for it.
Mr MALEY: I do appreciate your candid answer, and your seemingly genuine interest in the subject matter. However, can you - and it is not something strictly to do with clause 61, it is a matter you raised. Are you able to say when the Information Commissioner is going to be appointed? Have you a time frame yet as to when it is going to happen?
Dr TOYNE: Yes, I can inform the House that we will be advertising that position this weekend, and we will be moving to appoint as quickly as we can get the applicants and do the normal thing.
Clauses 53 to 62 agreed to.
Clause 63:
Mr BURKE: Mr Deputy Chairman, the amendment with regards to clause 63 is to omit the words ‘or body’ and substitute ‘or body other than the Commissioner’, so that the full clause 63 would read:
Other than the commissioner:
(a) the issue of an exemption certificate in respect of government information; or
government information.
It is clear from the Attorney-General’s comments that the government does not intend to support that amendment; that is their prerogative. It is disappointing that, as I said today, the opposition, notwithstanding the fact that, in terms of the practical application of this act where we believe in its practical application, which will not be apparent for some years to come, it will be deficient in many areas. We were prepared to support the legislation provided that amendment itself was supported. It seems to me to be a pretty simple amendment to support. The Attorney-General has said much about the trust that he has in the Chief Minister, the fact that he does not believe the Chief Minister would use that ultimate veto in an irresponsible way.
Certainly, that is his point of view; we are talking about legislation here, and the opportunity to put in place very good legislation. The government can go on and say, as the member for Wanguri said, that with the CLP you got nothing. Well, we are not talking about the CLP this evening, we are talking about your legislation, your guarantees to Territorians. The end result of your FOI legislation is that the ultimate veto rests in the hands of a politician. As I said in my comments today, we know, at the end of the day, what Territorians and Australians think of politicians. When it came to the vote for a republic, the slogan that won the day was: ‘We do not want a politician’s republic’.
I would imagine that what you have set up here is a politician’s FOI. Notwithstanding the fact that you might consider it to be something that will not be actioned by the Chief Minister, the reality is, there is an easy way around it: simply give the Information Commissioner the ability to inquire into the fact that the Chief Minister has issued an exemption certificate.
I would imagine that the way the Information Commissioner did that, could be done quite confidentially. The Information Commissioner would simply have to say in his report,: ‘One exemption certificate was issued. I have spoken with the Chief Minister. I have inquired into the reasons why that exemption certificate was issued, and I am satisfied as to the decision of the Chief Minister’. It does not take anything away from the Chief Minister having the ability to act responsibly; it simply puts in place a mechanism whereby the public are satisfied that, right throughout this whole process, politicians, at every part of the process, have some check in place. To my mind, it would be a very simple way for you to be able to stand squarely and say that this is an act that has the politicians under scrutiny right throughout the whole process. I do not suppose I can say anything more about it, except that, as I said, it is a pity that you do not wish to do that.
You made the point that the person who is the most sensitive in the Northern Territory and would be privy to all the information at the end of the day would be the Chief Minister, but you and I know that there are public servants who are privy to more information on a day-to-day basis than any minister or the Chief Minister. They attend conferences, some of which have security classifications and require people cleared to that classification, to a level that the Chief Minister would not even be cleared to. It would only be by exceptional circumstances that the Chief Minister, himself or herself, would need to get special approval to participate in briefings that one or two public servants might be privy to on a regular basis. So, it is not good enough to say that only the Chief Minister has access to this information.
The reality is that public servants, by virtue of the Public Service Act, the act that they themselves operate under, are under not only the constraints of the act, but also the responsibilities that, I believe, we can trust them with fairly and squarely. That authority, confidentiality, maintaining the confidence of government, and ensuring that the wrong information does not get to the public, is in the hands of senior public servants, and independent office holders on a daily basis.
Why then, when you have this important position of the Information Commissioner - and remember, the Information Commissioner is not a new term to me. Information Commissioner was something that, when we were in the early stages of developing this act, it seemed to me to be the threshold issue as to why this act could really be a very good and new act in the Northern Territory, as it progressed: that you had an Information Commissioner who could stand separately and alone and, frankly, all-powerful in the way that they oversaw the operations of this act.
What has been the end result, unfortunately, is that the Information Commissioner’s role is really one of an educative role primarily, with limited inquiry responsibilities. In that respect, I believe it is unfortunate. I asked those questions before, in terms of the way the Chief Minister could issue an exemption certificate, for that very reason. It is one thing to say: ‘Oh, the act confines the Chief Minister to only issue an exemption in these particular areas’, but you are asking Territorians to take that all on trust. The reality is that the Chief Minister could issue an exemption certificate on any area, if he or she so wanted. There is no appeal against that, there is no reason for the Chief Minister to give any reasons as to why that has been done, there is no way to check it, and there is no requirement for the Chief Minister to even divulge whether the information exists or not. It seems to me to be a real weakness in this act, that you do not allow the Information Commissioner some ability to inquire into a decision of the Chief Minister to exercise an exemption certificate.
That is what I would like. If you allow that amendment, I am sure as you said, as this act progresses it may be that you find an instance whereby you say: ‘Well, that needs to be removed’. However, you are coming from the position that has been criticised. You are coming from a position of: ‘Let us not do it for fear that some information may get to the public’. That has been a threshold criticism of the way these acts tend to evolve; that is, that the culture is one of ‘Let us not give the information for fear of the wrong information going out’, when all of the arguments that are coming through on FOI is be brave enough to put the information in the hands of those who can possibly see that it is accessible. In the case of the Information Commissioner, it is unfortunate their roles and responsibilities have been strongly curtailed.
Mr WOOD: Mr Deputy Chairman, I also support the amendment. My reasoning is based on one of the opening clauses, under the Object of this bill, and one of those objects is clause 3(c):
What it is saying is that the Information Commissioner is to oversee this act, and here we have this one section where he or she cannot oversee. It seems to me that, not only would that be a good idea that the Information Commissioner did oversee the exemption certificates, but it also would be more in fitting with the whole reason this act exists.
We are telling people we are producing an information act but the information in this one section; that is, the information to find out whether an exemption certificate has been handed out for a section of the act which is not entitled - well, we will never know. It seems to me that we have an opposite in this clause. We cannot find out. You might call this the non-information section of the act, and by putting that Information Commissioner in there, we bring that section of the act back in with what the intention of this act was.
Mr MALEY: My observations and support for this clause are obvious. It makes sense. I will put it at a practical level, and remember that in light of how clause 61 is drafted, the Chief Minister must be personally satisfied that the criteria of clause 61(1)(a), (b) and (c ) have been met. What if some important information was not before the Chief Minister when that decision was made, and that decision, made without that piece of information, was, of course, wrong at law? Why can’t that process be subject to a review? Why can’t an independent person, the person who - as the member for Nelson quite rightly pointed out - has an important role that is referred to in the Objects as a reviewing role, the Information Commissioner, look at the factors that were taken into account and satisfy herself or himself that the Chief Minister properly issued and exemption certificate?
It goes down the path of establishing more public confidence in this type of legislation. It establishes an appeal mechanism, because no one gets it right all the time. To really have a broad ouster type clause like clause 63, without the very sensible and timely amendments suggested by the member for Brennan, would be providing people of the Territory with a substandard piece of legislation. That is one point.
The second point is I seek some clarification - and you will probably have to talk to one of your advisors there – on the phrase ‘despite any other act’. I read that somewhere but it escapes me what it means. Perhaps you could just inform parliament exactly what ‘despite any other act’ means. That is clause 63, the first four words. Does that phrase have any particular legal meaning,?
Dr TOYNE: I will clarify that first. What that is saying is that the Ombudsman could not come in under his powers of investigation and cross over to a decision here.
I take on board what you are saying. There have always been a number of arguments as to how you best deal with the most sensitive areas. We have taken a particular view about it and, obviously, you have argued the other. We believe that, in this case, the very low likely use of that category will not put the general public of the Northern Territory into any great danger of having the information denied them. We will take that political path because, clearly, having the Chief Minister in that position is a political issue, and we will argue that that is the best option available to us.
I want to point out that neither did we want to create the Information Commissioner with powers that go beyond the Cabinet and the Chief Minister. When you look at the alternative of the Information Commissioner being able to virtually demand, under his or her powers under the act, from the Chief Minister of a jurisdiction, there are dangers there, too. We are all assuming that the Information Commissioner will be entirely and at all times altruistic and wanting to get the job done, but if you had a person who, for one reason or another, wanted to misuse that position, there are dangers attached to that. I am very optimistic about this. I do not think we are going to see a major catastrophe in terms of the Chief Minister’s power, or a major catastrophe associated with the Information Commissioner.
So, we are just going to have to agree to disagree on this, because none of the arguments that have been put - I absolutely understand the line of the argument, but we disagree with you. That is all I can say.
Mr MALEY: Okay. I have one point of clarification. You just said, so there is no ambiguity, that the Chief Minister should not be subject to review, the Chief Minister is effectively above the law. Is that what you are saying? You are saying you do not want the Information Commissioner reviewing the decision of the Chief Minister because the Chief Minister’s office is sacrosanct, and that is it. That is what you are suggesting.
Dr TOYNE: No, no. Let me clarify that.
Mr MALEY: That is what you said. So you had better be careful about what you are saying and perhaps amplify.
Dr TOYNE: Yes, all right, I will clarify it. The Chief Minister is not above the law. The law, in the case that we are talking about here, will be the Information Act. The Chief Minister’s actions are very carefully defined within the act. If the Chief Minister contravenes the letter of the law within those exemption certificate powers, she will suffer the same consequence as anyone who contravenes the law.
The committee divided:
Amendment negatived.
Clause 63 agreed to.
Clauses 64 to 85, by leave, taken together and agreed to.
Clause 86:
Mr WOOD: Mr Deputy Chairman, I am wondering whether it is a sign that the temperature of this House is so cold, that that is the feeling that I am getting from the government about all these amendments.
I move amendment 25.6. I put this amendment up and hoped that the government would support it. I have not heard anything to the contrary, so I am living in hope, because I think it is a very important. You never know, they might just have a change of heart.
This is a very important amendment to the bill, because the person who is appointed Information Commissioner has a very important job. I certainly do not believe that this job should be at all tainted in any way with the possibility that it could be a job for the boys or the girls, or it could be somebody who comes from a certain group which says: ‘I think it is his turn to get one of these jobs, he will get the next one that turns up’. We need a person who is well qualified, but we also need a person who would be seen by the community as someone who is completely fair, and not be swayed by any previous connection for whatever reason, with the government or any other group in the community, whether it is legal or otherwise.
So, it is very important that parliament takes a key role in the appointment of this Information Commissioner. One way to do that, I believe, is for the Standing Committee on Legal and Constitutional Affairs to unanimously approve this particular person’s appointment. That is the fairest way; it is the way that would mean that we have a bipartisan appointment of this commissioner, and that bipartisanship, of its very self, will show the people that we have appointed an Information Commissioner who can be seen to be fair and bipartisan. It would give people a lot of confidence that they have a commissioner in whom they can place their trust.
Dr TOYNE: We believe, as you have said in an earlier amendment, that this is going in entirely the wrong direction. We are all getting very sensitive about politicians being too close to these sort of decisions. We have taken the view - and we certainly intend putting that into action over the next few weeks - that we need to get an expert panel to interview in an open application process, with agreed criteria as to what sort of skills and background the Information Commissioner should bring to the job. That has been set up to the point where you can all have a look at that in the paper this weekend, as to what are the key duties of the Information Commissioner, drawn from the act, and the background that we would like them to have. I believe that, similar to the appointment of the Anti-Discrimination Commissioner, which occurred just recently - and potentially other statutory positions - that the most appropriate thing is to get a non-political, expert panel to make the selection.
To take up the other point that you were making, yes, this is a matter of great importance to the community, and community representation on that panel is a very important issue. We would be wanting to see some powerful community representation on the selection panel, and that is the direction we have gone in the bill. We do not believe politicians should be directly involved in the selection of a statutory officer.
Mr MALEY: Attorney-General, you appoint the panel, and if that does not make it at least in some way affected by the political process, then I do not know what it does. I suspect that the panel will invariably …
Dr Toyne: I do not appoint the panel.
Mr MALEY: You appoint the panel and then you have one of your stooges sitting as a member of the panel. So this is an excellent safeguard being suggested by the member for Nelson, and one which we support. It is fair and it really goes a long way in ensuring that you do not appoint some party stooge. You have politicians on both sides and an Independent involved, and it is a requirement to unanimously approve the person’s appointment. It is a great safeguard. It is really a return to parliamentary democracy as opposed to what we are seeing more and more from this lazy Labor government’s executive democracy.
It was our own Clive James who said that democracy can be even more important for what it prevents than for what it provides. The amendment, the extra subclause (3) to clause 86, as suggested by the member for Nelson, has my complete and unconditional support. It really goes some way in casting a fairly serious shadow over the narrow-minded members opposite, when they do not support this particular amendment.
Mr STIRLING: I have been very restrained, Mr Deputy Chairman, but the hypocritical ramblings that come from the shadow Attorney-General in this last point just leave me breathless. I have to put on the record: why would a government have any heed to representatives of a political party that opposed freedom of information for 26 years, did not want to know about it, never put a draft bill in, despite promising FOI legislation at several elections? When Manzie was reminded of it at one stage by me, they could not remember! They could not remember having promised it at the 1994 election. Yet, that representative of the same political party that has opposed FOI for 26 years has the hide and the gall to come in here and demand to be represented on the selection committee to pick the Information Commissioner. That just leaves me breathless in relation to the hypocrisy and audacity of the shadow Attorney-General.
The other point, of course, and it was well picked up by the Attorney-General, was on the one hand a couple of amendments ago, we were being told that the Chief Minister is too close to the process as a politician, and now they want politicians and themselves to have a say in who would be the Information Commissioner. Well, if Sunshine and his bunch over the other side were still sitting on this side of the Chamber as government, we would not be sitting here debating about who might be an Information Commissioner, because there is no way in the world that we would be having FOI legislation. So you can forget about that little amendment.
Mr WOOD: Somehow, things get out of hand in this place because I am not the opposition and I have not been here 20-odd years. I have just arrived in this parliament and I hope I bring a fresh point of view to some issues. This is a fresh point of view: you are not going to get political interference in the appointment of this particular person if you are required to get six people to unanimously approve the person’s appointment. That is the very reason the word ‘unanimous’ was put in there.
The other problem you have is exactly what the member for Goyder said. Who selects the people on the selection panel? The government. Who guarantees that those people who will be picked on that selection panel do not belonging to a specific group that has a viewpoint about who should be on it themselves? Here, we are allowing people to see an open process where two parties, and perhaps an Independent, have to unanimously select this person. You could not get a more fair and open process. It is not a party political process; that is what we are trying to avoid. It is a political process that tries to select a person whom the people will see that both sides of parliament have agreed to. I would have thought that sets up in the public’s mind clearly that we have a person …
Mr Stirling: And the Chief Minister could not be trusted five minutes ago.
Mr WOOD: We are not dealing with the Chief Minister here; we are dealing with six politicians who will have to unanimously agree …
Mr Stirling: Could not be trusted before.
Mr WOOD: Well, that is another argument; you can talk to the member for Goyder. I am the one that proposed the amendment, and if the amendment is going to be defeated by the government based on what the opposition did, then I would say that is very narrow-minded. The intention of this was to make the appointment much more open.
Mr Kiely: It is all too nave.
Mr WOOD: Well, it might be nave for some. I would say it is politically narrow-minded by others. The reason I am proposing this is to try and bring a new perspective to the appointment of such a person. I believe that someone like the Anti-Discrimination Commissioner should be elected by that process also, so you take it away from party politics and you allow this Chamber to unanimously select those people. I am extremely disappointed. I probably should say cynically. I am very sorry members of the government did not take up an opportunity to have a briefing from me, but that is the way it goes.
If you had, I possibly could have explained it to you better and you might have looked at this in another light. However, as it is, I still think this is an important amendment. I will be saying to people that I believe, once again, the government has missed an opportunity to make this act better. I am not proposing this to knock the government or to restrict the government. I am saying, and as I have said all along with the amendments tonight, these amendments, I hoped, would make this act better. All I have is about as much cold air as is coming out of this airconditioner tonight.
It is disappointing that you can propose good amendments that you would hope would make the bill better, and for some reason on this one - well, it is something to do with opposition. But it does not appear to me that this amendment is taken on its merit. It is taken more on ‘Well, this is what happened 21 years ago’. I am not part of the 21 years ago; I am proposing it as a reasonable approach to making this bill better.
Dr TOYNE: I want to summarise this latest discussion. We have just been through these processes. You are moving to appoint professional people into a very complex statutory position within the Northern Territory. If I were a professional, whether that be a lawyer or an archivist or whatever background came into this particular round of applications, I do not think I would want to be interviewed by non-experts in the field. Second, I would want to be given a mandate from a lot of the people who I am going to be working with, day in day out, for the period of my appointment.
The same principles have been applied to the recruitment and placement of the Anti-Discrimination Commissioner, the same would apply to the Ombudsman if there was a time when that needed to be, and the DPP. We are talking about very high level jobs here, and the sort of people I would want in front of me would be, say, someone from the Northern Territory Archives Service, someone from the Department of Justice who has a legal background - people who can actually assess your professional ability to take on that position according to the criteria that are put in front of you.
It would be quite a humiliating experience to go to a committee meeting where you may get all sorts of beer and skittles and everyone saying: ‘Yes, what a wonderful process’, but you are just as likely to get a bun fight. You know what committee sessions are like in our parliament. How would you want to be submitting an application at a high professional level and stand there while six people tear each other’s throats out? Put simply, I am not attracted to the idea at all. We are certainly not intending to change the proposal in the bill.
Mr WOOD: I would say, like any committee, you would have your advisors on your committee to help you look at the people who are applying for the job. I certainly do not think you would be having an argument in front of your applicant. I think that would be the height of bad manners, to start with.
However, you would interview people, and you might have on your committee people from various groupings, various qualifications, who could help you analyse the person’s background to see if they are suitable. You have the guidelines in the act as to what the powers and functions of the commissioner are. I would presume that politicians do have a reasonable amount of experience, otherwise they would not be in parliament. I do believe that, if you got six of them together, that they would have to work very hard to get the right person because you have to have a unanimous decision. That is the very reason that it was put in; that you would have to work out and spend your time in selecting the right person.
It may be that you had a pre-selection panel, which basically took out those people who obviously were not suitable, but you might be left with three or four people who you were then given to decide whether they were the ones. There are ways around that. The dangers with the other way is that it will be seen to be a political decision; that is, a party political decision. This way you can make it a political decision. There are ways to do it if you want to do it, but I obviously feel that the government does not want to do it and, therefore, it will put in reasons as to why they do not think this system would work.
Amendment negatived.
Clause 86 agreed to.
Clauses 87 to 91, by leave, taken together and agreed to.
Clause 92:
Mr WOOD: I move amendment 25.7. This was put in to make sure that the minister, when he terminated the not-so-independent commissioner of the Legislative Assembly …
Mr Kiely: That is a bit of an insult isn't it?
Mr WOOD: Well, lesser than …
Mr Kiely: No, no, it is the appointment you said you were concerned about not the individual. Now you turn it on the individual. You just said it then.
Mr DEPUTY CHAIRMAN: Order! Let the member for Nelson continue.
Mr WOOD: There is no individual being selected at the present time, it was just a little dig.
The second amendment is about making sure the parliament be properly informed of the decision to terminate the appointment of the commissioner. I do not believe that would do anything different to this bill except require the minister to at least let the Legislative Assembly know as to why there was that termination, and to specify the reasons for that termination. Surely that would get support from the government.
Mr MALEY: In any case, it would certainly get support from the opposition. The proposed amendment is very straightforward and simple, and makes sense. If the termination ever occurs, all that is required, on a strict reading of the new subclause (4), is that this Assembly is informed about it. We already have clause 92(3) that says that a termination under the section is to be in writing. Well it seems that, to comply with subclause (4), all that would be required is to provide a copy of that written termination to this Assembly. It is a straightforward amendment, and one which the government should take on board and incorporate into clause 92.
Dr TOYNE: Mr Deputy Chairman, we support the amendment.
Amendment agreed to.
Clause 92, as amended, agreed to.
Clauses 93 to 129, by leave, taken together and agreed to.
Clause 130:
Mr ELFERINK (by leave): Mr Deputy Chairman, I move that clause 130(1) be amended by omitting the words ‘on a question of law only’.
The reason I move this is because I have heard the Attorney-General refer repeatedly to the judicial review process which is available in relation to a decision taken with regard to this act. I am sure the Attorney-General would be fully aware of some of the limitations that the words ‘on a question of law only’ place on the review process. Indeed, some of the examples he has cited tonight would be issues of fact and not law. Nevertheless, he says that that judicial review process is available on fact. I do not believe that that is the case; in fact, clause 130 clearly states that.
To give the Attorney-General some idea of where I am coming from in relation to this, I refer the Attorney-General to the Administrative Decisions (Judicial Review) Act of the Commonwealth to give you some ideas on issues that operate outside areas of law. In that act, a person who is aggrieved by the decision can make an application to a court on the grounds that (a) it breaches the rules of natural justice occurring in connection with making of a decision; (b) that the procedures were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have the jurisdiction to make the decision; (d) that the decision was not authorised by the enactment and pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of power conferred to it by the enactment in pursuance of which it was purported to be made - and I will skip (f) because that deals with a question of law and go onto (g) that the decision was introduced or affected by a fraud; (h) that there was no evidence or other material to justify the making of the decision, and (j) which is the 10th area, also deals with an issue which is contrary to law, and what might be contrary to law still might be a question of fact.
So, essentially, in nine areas there is only one in the Administrative Decisions (Judicial Review) Act which deals with a question of law. What about the issue of fraud? I ask the Attorney-General, what about any number of those other areas where there has been an exercise of power which will simply not be a question of law - will simply be a question of fact? Certainly, if the Attorney-General believes in a free, open, honest and accountable system, he is quite prepared to have the Supreme Court - in fact, he said it several times tonight, that he is fully prepared to have the Supreme Court of the Northern Territory - review decisions. So, I would expect his support.
The accusation has been made several times tonight: ‘Well, you guys never did this and we are doing it …
Mr Bonson: Well, it is the truth.
Mr ELFERINK: That is true. And guess what? We never built the aeroplane. You guys are arguing that you should build and aeroplane but you are not prepared to give it wings. You are prepared to let it taxi to the other end of the airstrip, but you are not prepared to let it fly, because you cannot control it after it flies. That is what this is really about.
However, in the spirit of what the Attorney-General had to say, I would ask the him to accept this amendment from the floor. It is a very straightforward amendment. All you have to do is remove five words and the judicial review process can be complete for the people of the Northern Territory.
Dr TOYNE: Well, it might only be five words coming out of the act, but what you are going to lead us into is a huge bog of potentially broad and continuous court action on behalf of people who are pursuing their interests through the bill.
We have spent a lot of time trying to bring this process into a streamlined form, one that is based as much as possible on mediation, and on the decisions made by various levels of the agency, and then on to the Information Commissioner. We do not see any logic in taking all matters that may occur to applicants, back into a Supreme Court process. The purpose of the phrase ‘on a question of law only’ is to use the courts to clarify, define, scope out, the use of terminology within the act and how it is going to be applied to individual cases. We are not interested in building a new superstructure of legal action based in the Supreme Court to determine individual applications as an alternative to the mediation process.
Mr ELFERINK: Oh, really? This is the very nub of the argument that I have been trying to run all night. The fact is that the federal legislation is fully prepared to do what I suggest. In fact, it does it. That whole body of law is out there. So, what I am asking you to do is quite simply this: allow yourself to be led by other jurisdictions, as you have argued the whole way through tonight - that other jurisdictions are guides for this and other jurisdictions are guides for that. Well, allow another jurisdiction, the Commonwealth in this instance, to guide you with their experiences. Their experiences allow nine criteria to be taken into account, minister, so that the court system - either Federal or Supreme at the state level - is able to review administrative decisions. That is the very nub of the argument which is happening here tonight. The argument is simply this: do we allow the control of this piece of legislation to move to another area of government? In this instance, I am referring to the other area of government being the courts. That is where this last grab of control needs to be nailed down.
That is the reason this piece of legislation is going to have trouble flying, because of that last element of control. The former member for Wanguri, John Bailey, used to rail against the level of control. This is the very chance that you have to bring John Bailey’s vision, if you like, the control away from the executive arm of government. That is the simple challenge which I am putting to you here, minister. If you are not prepared to do that, then everything that you have said, every platitude in trying to convince us that this legislation is truly freedom of information legislation, is out the window. It is simply so inconsistent with the principles of everything that you have said, it means that it just will not be able to convince anybody that you are really prepared to allow free freedom of information.
Dr TOYNE: First of all, you are quite wrong about the Commonwealth process. It goes to the Administrative Appeals Tribunal, not to the judicial review. That is probably for similar reasons that we want to curtail the use of the courts for other than the types of cases that I have indicated, where you are trying to actually get clarification of some criteria, or some action under the act as it will be.
We do not see the virtue of having a major court process attached to the complaints process. It will be expensive; and slow the whole process down. If you are worried about the independence, you are dealing with a completely independent statutory officer in the Information Commissioner, who will not be controlled any more so than the Anti-Discrimination Commissioner, the Ombudsman, the DPP. We have plenty of positions like that in our current government system. The independence will be lodged with the Information Commissioner who will then pursue these matters through to a meditative process as much as possible.
Mr ELFERINK: Well, the minister is fully aware, I am sure, that the Administrative Appeals Tribunal is a tribunal which is attached to the executive. Under the Administrative Decisions (Judicial Review) Act, section 5, it is entirely possible to take any of these issues to a court of law. Then a court of law will make a decision, within the parameters that it set itself within the common law by and large, and return that decision and make an order accordingly. Often that order would be simply to send the matter back to the tribunal that has made that decision. However, at the end of the day, other jurisdictions allow this. For the Attorney-General to stand up here and say that it does not happen in other jurisdictions is hogwash, absolute hogwash.
It is simply that the Attorney-General cannot, despite the fact that he has said a dozen times: ‘I really think that the review process is going to happen willy-nilly;’. ‘We will allow reviews’, he said at least four or five times. Not a dozen, four or five times. Yet, when you give him the opportunity to open it up properly: ‘Do not worry about what I just said. We are not going to have the court system looking into this’. Well, what is it? You told us at least four times that the court system was going to operate. It does not, and you know it, and that is the reason, when I have nailed you down on this point, you are just not going to bend.
Mr Stirling: No.
Mr Elferink: That is exactly right.
Dr TOYNE: If you had sought a briefing on this matter, we could have enlightened you on it. This is going to be one of those situations where, if we stood up here for the next three hours, we would still disagree on it. We have made our position very clear. I suggest we move on.
Amendment negatived.
Clause 130 agreed to.
Clauses 131 to 154, by leave, taken together and agreed to.
Clause 155:
Mr ELFERINK (by leave): Mr Deputy Chairman, I move that clause 155 be omitted. I am not going to labour on this at any great length. My position is quite clear to the Attorney-General how I feel about this. However, I do wish to visit it quickly in one area.
The clause says quite simply that no other body is allowed to investigate or inquire into a review, or otherwise call into question an act or decision of a public sector organisation or the commissioner under this act. Now, that is pretty straightforward. Nobody can have a look at what the public service is doing or what the government is doing, and the only avenue of appeal in to the courts is on a question of law. So, they can commit a fraud but so long as the fraud is a matter of fact in the decision, the courts cannot pay any attention to it. That is just unhealthy.
I also pause briefly in relation to clause 155(b):
I am just wondering if the minister can advise me if writs of certiorari are included in that particular section.
Dr TOYNE: We do not have a clue what you are talking about. Can you have another go at it?
Mr ELFERINK: Well, it is a writ of certiorari, the writ that I am referring to is the one that demands documents. It is an administrative law writ, and it is a commonly used tool in other jurisdictions. Am I pronouncing it right?
Mr Stirling: I wish you had taken a briefing.
Mr ELFERINK: Well, if he had come in here and stopped telling me that the courts are available for everybody to appeal to, then I would not have to do stuff off the floor, would I?
Mr DEPUTY CHAIRMAN: All right, member for Macdonnell. The Attorney-General is taking advice. Are you ready now, minister? If you could please proceed.
Dr TOYNE: Yes, I am absolutely keyed up and ready to go, Mr Deputy Chairman. Yes, writs of certiorari; if it is not in there, it is not excluded. To clarify that, if it is not in what will be the act, it is not excluded, if that is what your question was.
Let me explain our general position to this, which should not come as any surprise, given the reaction that we gave you on the clause 130 amendment. We do not want to go down the path of opening up a much more expensive and cumbersome court-based process. The whole point of the structuring of this bill was to bring the process into more of an administrative process, based on mediation where possible, and with a hearing if mediation fails. That is more cost effective, it is better for the applicants because they can get the thing turned around more quickly, particularly as there are time constraints on how long each step is going to take.
You want to lead us back into a court system where you could find matters going on for years and costing a huge amount of money. If you want to pay for it, send us a cheque.
Mr ELFERINK: All too cute, Mr Deputy Chairman, all too cute. The truth of the matter is that this government is not prepared to live up to its promise in relation to freedom of information legislation. What they are arguing for is a system controlled by their hand, and that really is the nuts and bolts of this whole process. By not allowing a court system to review the already extensive process I admit that they have in place, at the end of the day, they have nobbled their own legislation.
Clause 155 agreed to.
Remainder of bill, by leave, taken as a whole and agreed to.
Bill to be reported with an amendment.
Health and Community Services Amendment Bill (Serial 86):
Bill, by leave, taken as a whole and agreed to.
Bill to be reported without amendment.
Ombudsman (Northern Territory) Amendment Bill (Serial 87):
Bill, by leave, taken as a whole and agreed to.
Bill to be reported without amendment.
Bills reported, report adopted.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bills be now read a third time.
Motion agreed to; bills read a third time.
Mr HENDERSON (Defence Support): Madam Speaker, tonight I provide the House with a ministerial statement on the contribution Defence makes to the Northern Territory economy.
There are now more than 6000 uniformed and public service Defence personnel based in the Northern Territory. Together with their families, the total Defence presence here has now reached approximately 14 000 people, about 7% of the Northern Territory population. The Defence Housing Authority owns or administers over 2500 residential properties in the Northern Territory. Since the commencement of the Army Presence in the North project in the early 1990s, the Australian Defence Force has invested more than a $1bn in infrastructure developments in the Northern Territory.
Northern Territory industries such as housing, retail trade and tourism have all benefited substantially from the increased Defence presence here, helping to broaden the base of our economy. Whilst the Defence presence has produced obvious benefits for the Northern Territory, the reverse also applies. Defence is a shared responsibility. Whilst the Defence build-up in the Northern Territory has been significant, proposed changes to Defence capability will ensure that this growth will continue. For example, the federal budget for 2002-03 confirmed an additional $78m for expenditure on infrastructure works in the Northern Territory.
I take this opportunity to focus on Bradshaw Station. I am pleased to be able to advise members that I am very confident that the Indigenous Land Use Agreement (ILUA) between the Commonwealth and the Northern Land Council, representing the traditional owners, will be formally signed off in November. The final outstanding issue has been satisfactorily resolved. The signing of this agreement will allow Defence to proceed with $50m-plus of infrastructure works necessary for conversion of the property into a Defence training area.
It is appropriate for me, at this point, to offer my congratulations to Darwin firm, Steelcon Nortask, which scooped the pool at the TCA Awards night last Friday evening, when it won the Civil Construction Section Award, and the President’s Award for Excellence in the construction of the bridge across the Victoria River, which will be the primary access to the training area.
As I said earlier, Defence expenditure will bring significant benefits to our economy and create new business and employment opportunities. Key features of the 2002-03 program of Defence works and estimates of expenditure include: $27m for the commencement of infrastructure works at Bradshaw Station; 1 Aviation Regiment relocation, $10m; various works at RAAF Base, Darwin, $4.6m; various works at Robertson Barracks, $7.775m; various works at RAAF Tindal, $13.8m. In addition to this expenditure, an extra $22.3m has been allocated for the continuation of Australian Defence Force border protection operations, most of which are carried out in Northern Territory waters.
The Defence, Petroleum and Mining Support Group of my Department of Business, Industry and Resource Development is responsible for encouraging Defence industry growth and development in the Northern Territory. To achieve this objective, the group works in close cooperation with the Department of Defence, the Australian Defence Force, and Defence prime contractors. The competition for Defence work is extremely tough. Maximising involvement by local businesses is not an easy task, and can only be achieved through close cooperation with Defence at the national level, as I have just mentioned, and through strategic alliances at the local level with relevant defence agencies. These agencies include Headquarters Northern Command, the Defence Material Organisation, the Defence Corporate Services and Infrastructure Centre, Northern Territory Kimberley Region and the Joint Logistics Unit North.
To facilitate Northern Territory industry involvement in Defence commercial support opportunities, my department of DBIRD provides secretariat and financial support services to the Australian Industry Defence Network, Northern Territory (AIDN-NT). Chaired by Mark Smith, managing director of North Australian Radio and Electronic Services, AIDN-NT’s primary objective is to generate Defence business opportunities for its members from the millions of dollars spent on both major and minor projects by the Department of Defence each year. I note that Mark’s own company based in Darwin is a significant hi-tech supplier to the Defence forces. He understands the challenges and opportunities that Defence support present.
I place on the public record my thanks to the previous Chair of AIDN-NT, Robin Pink, the ex-General Manger of Darwin Ship Repair and Engineering, who is retiring in a couple of months time, for the years of service that he put into AIDN-NT. He made a huge difference to that organisation, and he will be sorely missed, but I am sure that Mark Smith will continue to do a great job.
Another way in which my department interfaces with Defence and industry is through participation and seminars, such as the three-day 2002 Defence Industry Seminar held in Canberra earlier this year, which was attended by more than 1400 delegates from around Australia. My department also sponsors local participation on the Defence and industry study course. This course, conducted and coordinated by the Defence Material Organisation’s regional office, provides senior representatives from Defence, industry and government with the opportunity to enhance their understanding of the Defence sector, and develop industry contacts.
Time and again, local industry has demonstrated that it has the capability and the capacity to support sophisticated technology and equipment used by the ADF. Indeed, the contribution by local industry to Defence capability in the Northern Territory, by local companies such as Everett Engineering Services, Premier Fuel Injection Service, Darwin Ship Repair and Engineering, Dynamic Turbocharger Services, Mack Trucks, Boscato, Sealanes Albatross, but to name a few, is well recognised. The record shows that 121 separate contracts were awarded in 2001-02 by Defence, directly to local companies. Over and above this, local firms benefit substantially, through delivering services to Defence as subcontractors to major national firms, particularly in the facilities management sector.
In July, the Chief Minister and I, along with the Leader of the Opposition, and I think the member for Karama, attended the official opening at Palmerston of the General Motors Defence Australia Darwin Logistics Centre. As well as providing employment opportunities, this facility has the potential to expand beyond its current role as a parts storage and repair shop for the Australian Light Armoured Vehicle, to become involved in supporting other ADF initiatives such as the replacement patrol boat project.
The Defence white paper released in October 2000 reaffirmed that the priority for the ADF is to maintain a capability to defend Australia’s Territory from any credible attack, without having to rely on assistance from defence forces of another country. The Northern Territory, by virtue of its location, is a critical component, in terms of Australian defence planning, and represents a central focus of ADF defensive operations due to its capacity to provide support to, and sustainment of, operations in the northern approaches to Australia.
These operations include non-military activities that require a whole-of-government approach, such as air-sea rescue, coastal surveillance, and in relation to illegal migration, the drug trade and illegal fishing. Headquarters Northern Command is the Australian Defence Force’s main point of contact with the Northern Territory government for operational requirements in connection with Defence operations in northern Australia. Headquarters Northern Command also facilitates the delivery of Defence emergency assistance, when required, to the civil community - assistance provided during the Katherine and Daly River floods being examples of this.
NORFORCE, the Northern Territory’s regional force surveillance unit, conducts surveillance and reconnaissance within the Northern Territory and the Kimberley region. With approximately 50% of its establishment comprised of indigenous people, NORFORCE is the largest employer of indigenous people in northern Australia. As well as benefiting from the skills of its indigenous members, NORFORCE’s training and development program provides the means to transfer a wide range of military skills into various indigenous communities. Its headquarters, operational support squadron, and Darwin squadron, are located at Larrakeyah Barracks, with other depots based at Alice Springs, Katherine, Broome and Nhulunbuy. Indigenous members are considered by community elders to be appropriate role models, and we have received feedback that NORFORCE is an important mechanism for reinvigorating indigenous pride. Furthermore, the wages of NORFORCE personnel contribute to the economies of local communities.
The 2002 Defence and Industry Regional Briefing Program, to which the Chief Minister delivered the opening address, was held during September at MGM Grand. A primary focus of the conference was on articulating defence industry policy in the Australian Defence Force’s forward procurement plans, and on Defence projects impacting on the Northern Territory. Conducted on an annual basis, this program is hosted by the Defence Matriel Organisation regional office headed by Mr John Zupp. Mr Zupp’s office works in with the Defence, Petroleum and Mining Support Group of my department to assist industry in its efforts to understand how to best do business with Defence. In this regard, I draw attention to the fact that key representatives of the Defence Force in the Northern Territory, including Brigadier Mike Silverstone, participated in the focus group review process associated with the government’s economic development strategy Building a Better Territory. I have to say that, as a result of their participation, we have a better document than might otherwise have been the case. I take this opportunity to thank the Brigadier for his strong commitment to the Territory, and to wish him well in his new posting at the end of the year.
The ADF Armed Reconnaissance Helicopter Project, also referred to as Project Air 87 is close to delivery. In December 2001, the federal government approved the acquisition of 22 armed reconnaissance helicopters at a cost of $1.3bn. The aircraft, referred to as the Tiger, will be introduced into service between the end of 2004 and mid-2008. Army intends to locate 17 of these aircraft at Robertson Barracks, with the first aircraft arriving in late 2005. The combat unit to be equipped with the Tiger is the Army’s 1 Aviation Regiment. Presently, the regiment has its headquarters, technical and logistics support, and other elements, located at Oakey in Queensland. It is Army’s intention that the 1 Aviation Regiment be restructured to accept the new helicopters and co-locate it with HQ 1 Brigade at Robertson Barracks to develop the new capability.
The restructured regiment will have the strength of approximately 400, all ranks, of whom approximately half will be married personnel. The Department of Defence will seek a Parliamentary Works Committee hearing into this project seeking federal government approval for the capital works required for the relocation and co-location of the 1 Aviation Regiment at Robertson Barracks. The proposed works have a planned completion date of December 2004. This would allow the regiment to co-locate and develop its operational and administrative procedures prior to introduction of the new armed reconnaissance helicopters into operational service in late 2005.
However, Defence selected the Robertson Barracks greenfield site because:
the unit will be co-located with HQ 1 Brigade, a functional requirement of considerable
significance;
the east is used for extractive industry and will so be used for some considerable time. On
completion of extractive activities and the expiration of mining leases, Defence had options on
acquisition of the land. Defence ownership or control of these areas would reduce the risk of
urban encroachment on Robertson Barracks;
Commonwealth controlled land;
requirements and can accept significant future expansion;
messing, training and recreational facilities;
constraint of existing facilities;
co-location with HQ 1 Brigade;
precinct of Darwin Airport; and
barracks zone and master plans. The site is zoned for training and future major unit development.
Robertson Barracks is ideal for the regiment in terms of land use, size and relative isolation from
the barracks domestic areas.
The southern portion of Robertson Barracks is located under the primary approach to Darwin Airport. However, the Defence view is that this does not affect Army rotary wing aircraft operations. The proximity of the flight path, buffer zones, instrument landing systems and navigational and control facilities have been the subject of extensive liaison between Defence, CASA, Air Services Australia and RAAF Air Traffic Control. The parties have all agreed that, by utilising existing air traffic control procedures and protocols, 1 Aviation Regiment can operate from Robertson Barracks without any compromise of safety or operational capability.
It is intended that the primary approach and departure routes for Army aircraft will be to the north-east and to the north-west. This will ensure that the majority of low flying helicopter activity will be over Defence or Commonwealth controlled land, thus reducing noise impacts and avoiding the Darwin Airport flight path.
As a separate activity to the provision of operational and command facilities at Robertson Barracks, the Defence Housing Authority will address the requirements for off-base married quarters. Preliminary estimates place this requirement between 120 and 150 dwellings.
On the issue of Defence housing, I note that DHA has about 2500 properties under management around the Territory, the latest development being the high rise unit accommodation in Carey Street in the city, which is under construction. Apart from providing local firms with building work, it will boost CBD businesses as more people live closer to town. My department is continuing to work closely with the prime contractor, Defence officials, RAPAC and the local community, to maximise Northern Territory benefit from this project. In this connection, the department recently participated in the launch of the Australian Defence Industry Intellectual Property Training and Audit Program for Project Air 87. Sponsored by the Defence Matriel Organisation and IP Australia, the Intellectual Property Training and Audit Program is an initiative of Eurocopter, and forms part of the prime contractor’s obligation to maximise involvement by Australian entities in the $1.3bn project; an obligation of critical importance to Northern Territory businesses.
Tender evaluations for the estimated $1.3bn CSP Defence Integrated Distribution System contract are nearing completion. Announcement of the preferred tender for this national warehousing, distribution and maintenance repair contract, which has implications for the Northern Territory, is expected to be made before the end of this year. ADF units affected by the contract, such as the Joint Logistics Unit (North), will transition to the new arrangements in early 2003.
The economic impact of visits to Darwin by United States Navy ships varies, depending on ship type, length of stay and other intangibles such as length of time since their last port visit, but as a general guide the estimated value is $US250 000 per ship visit. Under current arrangements, four contracts support United States Navy ship visits to Port Darwin. These are: husbanding, including the provision of force protection measures; fresh fruit and vegetables - resupply of foodstuffs, including meats; morale, welfare and recreation; ship repair - maintenance, repair, overhaul and modification.
Consistent with its role in advancing the interests of local industry, my department has established a productive working relationship with the United States Navy’s key acquisition and support organisation in Singapore. This organisation, the United States Navy Regional Contracting Centre, is responsible for planning port visits and arranging repairs, maintenance and other support services for all US Navy assets in the Asia Pacific region, including United States Navy ships operating in, or transiting waters, between Hawaii in the Pacific Ocean and Diego Garcia in the Indian Ocean.
It is noteworthy that Darwin Ship Repair and Engineering has established master ship repair agreements with the US Navy, and all reports I receive are that the US Navy is more than happy with their performance. This is another example of a Territory company that has the runs on the board in doing business with the military.
I can advise the House that three companies have been shortlisted to tender for the supply of replacement patrol boats for the Royal Australian Navy under Project Sea 1444. The shortlisted tenderers are ADI, Defence Maritime Services partnering with Austal (DMS Austal), and Tenix. These companies were selected from the nine companies that submitted tenders to go to the next stage of the tender process on the basis that they were competitive and proposed to meet the Australian industry involvement targets for construction of 65% and in-service support, 90%. After evaluating two possible procurement options, private financing and direct purchase, the federal government has decided to directly purchase the boats at a cost of around $375m. ADI would construct the boats in Newcastle, DMS Austal and Tenix in Perth.
The Northern Territory, where the majority of new patrol boats are to be based, will benefit through commercial linkages with the prime contractor during construction and through-life logistics support of the replacement vessels. ADI, DMS Austal and Tenix will be invited to provide detailed tender proposals by the end of October. Defence expects to be in a position to recommend to the federal government a preferred tenderer by late this year, with a view to contract signing in early 2003, ensuring the replacement patrol boats will be ready for service in the second half of 2004. My department of DBIRD will work with the shortlisted tenderers to inform them of local industry capability in the provision of maintenance and through-life support for systems and equipment fitted to the new patrol boats.
In summary, the Defence presence here has been and remains a catalyst for significant growth and development in the Northern Territory service industries, housing, retail trade and tourism sectors. The Northern Territory is a growing area for Defence, both in skilled work force personnel and industry support. With Defence expenditure here of more than $550m during the financial year just ended, Defence is clearly one of our key economic drivers.
Close cooperation between the Northern Territory government, the ADF, visiting foreign Defence Forces, industry and the community is critical to ensuring the effective conduct and sustainment of Defence operations both here in Northern Australia and within the region.
Madam Speaker, I move that the Assembly take note of this statement.
Mr BURKE (Opposition Leader): Madam Speaker, I thank the minister for his detailed interesting statement, giving us an update on the position of some significant projects with regard to Defence in the Northern Territory. It is certainly a very important area of the Northern Territory economy. I guess the thing that immediately jumps to your mind about this type of statement - and I mean this as no criticism of the minister at all – is we talk a lot about the cooperation that exists between the Northern Territory government, officers of various departments, particularly Industry and Resource Development, and the way that Defence have integrated extremely well in the Northern Territory which, frankly, is a stand-out example to the rest of Australia and has been something that the Defence Department itself refers to in their own planning.
However, the thing that jumps out to me most importantly about this statement is that, when we talk about growing the Northern Territory economy and where the Territory will be in the future, the figures that you roll out with regard to Defence, are just enormous. In this statement this evening alone, the minister has pointed to, directly, $78m of federal government spending in this year alone, building on an enormous amount of money that has been spent in the past - $1bn in infrastructure, including Robertson Barracks. That does not even include the amount of money that Defence spends every day on other than infrastructure: the enormous contribution that those 14 000 people, either directly or indirectly, contribute to the economy of the Northern Territory.
New initiatives that are coming forward, such as Bradshaw Station - I am not sure if the minister gave a figure for the total development of Bradshaw …
Mr Henderson: $55m.
Mr BURKE: $55m in infrastructure alone for Bradshaw Station; $1.3bn for the armed reconnaissance helicopter project - and a large part of that particular project, including personnel, will be relocated to the Northern Territory; the Defence Integrated Distribution System. I am particularly interested that it has reached as far as it has in almost being decided who will provide that capability. I did not realise the Defence Department were anywhere near that progress, but I accept the minister has far better information than me. If they do go to tender at the end of the year, that will be quite an effort. I understood that Defence were quite distracted on other issues, not the least being overseas deployments that might put that particular project back some time. But the Defence Integrated Distribution Project is probably one of the most challenging outsourcing projects that Defence has ever involved itself in, but will also have direct impact on the Northern Territory - the way Defence attends to its logistic requirements in the Northern Territory and provides opportunities for the Territory to leverage off that particular outsourcing. As the minister said, an enormous project, $1.3bn Australia-wide in the helicopters. Also the Navy replacement patrol boats of $375m. I never totalled them up, but they are enormous amounts of money in anyone’s books.
Unfortunately, from the Territory perspective and from any government’s perspective, they work in close cooperation but, in many respects, outside of this monolithic organisation called Defence. When one considers how you work through that sort of organisation, one only has to refer to - and I am sure the minister has done it - read the comments of Lieutenant General Des Muller, who retired from Defence the other day. He was VCDF. He made some comments in that particular Bulletin article, which I am sure he did not think would ever make it into a Bulletin magazine. He pointed to just how hard it is to move that sort of organisation in getting real decision-making, real cultural change in how the organisation itself can become far more efficient in the way it does business, how it can become more efficient and effective in some of its purchasing objectives. That really is the challenge that faces the Northern Territory government: to be more than just someone who is cooperative, supportive, building relationships - but to really figure out how you get through that nexus and build on the enormous potential of Defence for the Northern Territory. That really is the challenge in this particular statement.
In many respects, minister, can I say to you that one of the first statements I made as a Lieutenant Colonel as Commanding Officer at 2nd Calvary Regiment when I spoke publicly - and I can tell you was carpeted by senior officers for some of the comments I made regarding how Defence was purchasing too much of its logistic requirements from down south and needed to look more to local infrastructure capability - but also as a politician, that Defence has done a lot in building on the capability of Northern Territory businesses still has a long way to go. In many respects, it is the Northern Territory government and how it focusses it efforts to support and encourage Defence, to find those projects that Territory firms can leverage off, and can provide a focus for that, which really provides a great challenge and opportunity for us in the future.
We talk a lot about Asian relations and trade in the Northern Territory. The CLP government spent an enormous about of money building close relationships with our South-East Asian neighbours and, as the minister and the Chief Minister have said, despite the good relationships that have been built on over many, many years, in terms of real outcomes and business opportunities, it has been problematic and some of those opportunities have been few.
The same challenge faces us regarding Defence. It seems to me that, for the Northern Territory economy, Defence is next to tourism, mining, and the large gas industries that can come to the Northern Territory, in how we leverage off this great Defence spending and build a greater Northern Territory. The Territory so far, over many years, has benefited economically from the Defence involvement with the Northern Territory. With massive build-ups in places such as Tindal in earlier years but, most importantly, the large build-up by the Army presence in the North that is now, according to the minister’s statement, built to about 14 000 personnel and their families.
Socially, I certainly am sure that in my electorate there are few community or sporting organisations that you go to, that do not have, in some shape or form, a Defence representative or Defence spouse there. They make an enormous social contribution to the Northern Territory and adverse reports of the military presence in the North are few and far between. On that note, it disturbed me that, in a couple of newspapers reports you read the title of ‘soldier’ being reported on people who have gone DUI a few times, and that sort of thing. Those are the little initiatives, I believe, where Defence Force people should not be singled out. We do not single out individual Territorians by their profession, and it is a bad sign if we start to look at the Defence Force personnel, in any shape or form, as somehow a society apart, that should be identified as different to the general Northern Territory community. They have made an enormous social commitment so far and will continue to do so. Certainly, more and more Defence personnel are retiring to the Northern Territory, are seeing the Northern Territory as the place they want to spend the rest of their lives after a Defence Force career, and that is a good thing for all of us.
Architecturally, I believe the Northern Territory has benefited enormously in Darwin alone. Palmerston has changed as a great satellite city, from a place that was generally derided when I arrived here. A lot of that change has come from the large amount of spending that the Defence Department did on good quality and very expensive Defence housing - housing that they felt appropriate for their families’ needs in the north, but also housing that set, in many respects, a new standard for local builders to achieve. Certainly, it is pretty well undisputed that that example led to greater innovations and better architectural styles than came through in the general housing product that was available for Territorians. So just in terms of those areas alone, they have made an enormous contribution, and will continue to do so.
We also live in the remotest parts of Australia and, as the minister pointed out, in every Defence white paper that has been produced - certainly as far back as 1984, 1987 - the defence of the north of Australia has been central in Defence Force thinking. Whilst there is a greater emphasis now on overseas deployment, that central thinking and Defence Force strategy will remain and, therefore, the importance of those forces in the north of Australia will be central to Defence’s decision-making process.
We also need to pause and consider that, whilst it is highly unlikely, in my view, it is possible that a large element of HQ 1 Brigade could be actually deployed on operational service to the Middle East and Iraq, and will be very much on the front line of the largest commitment of Australian forces overseas. We could be into a situation - we hope we will not be - not dissimilar to Vietnam in the early 1960s. That brigade needs the greatest support from Defence - the best support in training facilities, and the best support that can be given from the Territory population and its government.
In that regard, if we point to, say, a place like Bradshaw Station where large spending initiatives are to occur, it is not a good story that the LUA was just signed off the other day. It is good to see that it has finally been done, but that Indigenous Land Use Agreement was first negotiated - and I am sure my colleague, the member for Daly, will mention it - around about 1995, 1996. I wrote to minister Macfarlane on a number of occasions, urging the government to cease those negotiations and use its powers to acquire that land so that Bradshaw Station could be developed, so that we would not be in a situation whereby, at the end of 2002, we only have a bridge built on a training area on a property that was acquired many years ago and, frankly, should have been fully equipped for training by now. It is a sad story, in fact, that it has taken so long. I do not blame anyone for it, but it is something that I believe, when we look at the situation that our troops could be involved in, it would be a sad thing if their training opportunities have been diminished because of that slow down. But Bradshaw Station will be developed, I hope, to be a state-of-the-art training facility, not only for HQ 1 Brigade, but also for overseas forces that choose to train at Delamere and at Bradshaw in the future. That will be a great opportunity for Territory businesses to lever off all of the opportunities that will go with that large training area.
I have mentioned to the minister - I am not trying to urge you to do this – that there are a number of overseas trips that I hope you do, and when you do them, minister, I will certainly support them. If you get the opportunity to go to the United States in your position as Minister for Defence Support, you might get the opportunity to go to the National Training Centre in California and see the way that that training centre is organised, and try and picture something like that at Bradshaw Station - look at the enormous state-of-the-art technology that is in that training area, the training technology that modern forces require. That is the sort of technology that I believe should be built into Bradshaw. Certainly, that itself will provide great opportunities for Territorians.
The minister spoke about secretariat and financial support services to the AIDN in the Northern Territory. You did not outline how much money the government spends in that support. Again, I have always felt that we needed to lever up the amount of effort that was put into Defence support in the Department of Industries and Business. I make no criticism of the people who are involved in that organisation; I know that they do a tremendous job. But it really does need some horsepower to get into the higher echelons of Defence in Canberra - the sort of horsepower that we would rightly see in areas of the Office of Territory Development, with people who have particular expertise, who are very good lobbyists, who know how to work into that Defence system. That is what we need to have as an integral part of the Department of Industries and Business, to do whatever we can to leverage off the enormous spending potential that is in that whole Defence machinery.
The minister mentioned NORFORCE, a great organisation which, in many respects, sells itself because of the way it trains Aboriginal young leadership - as the minister said, people who are identified by the elders of their own community as future role models in those communities. Again, NORFORCE is just one organisation in the Army that argues by itself against competing interests, and competing jealousies, from various other organisations in the military for greater support from Army and Defence. Again, the Northern Territory government can be a great asset to try and push that whole argument of how we give NORFORCE greater capability to support the training and aspirations of young indigenous leadership who move their way through the NORFORCE hierarchy - and, perhaps, into the larger Defence system - as role models in their own community.
I know I made representations that there should be better mechanisms made to allow indigenous reserve service personnel to move into the regular Army. They should not be subjected, I believe, to the same conditions of service per se that applies to general entrants. They should be given greater opportunity as a recognition that, in many respects, their great value is in the local area from which they come. NORFORCE would argue that. It is the sort of thing that ministers in the government can aid those organisations to argue that case to Canberra.
Again, the amount of time reservists in NORFORCE spend in training, the amount of reserve training days they are provided with per year, I believe, can be expanded. And again, an organisation like NORFORCE can be assisted by government in that regard.
The armed recon helicopter project at Roberston Barracks is a great decision - not a decision that came easily to relocate that organisation from the RAAF Base Darwin, but certainly the practical and logical decision. The minister outlined clearly all of the logic behind the reasons for relocating that organisation to Robertson. But let us not underestimate the potential of that new organisation - a $1.3bn project in total for a state-of-the-art armed reconnaissance helicopter that would match it with anything available in the world, that will bring a level of technology in numbers available in the Northern Territory, that will all require maintenance and high-tech logistics support. How Northern Territory firms get access to that high-tech logistics support will require some real effort and impetus by government. I certainly hope the minister uses his influence to ensure that that happens.
There will be 400 personnel just for that recon helicopter unit alone. He said half of those will be married, with 120 to 150 dwellings required. Well, it does not take an Einstein to figure out that Carey Street will not accommodate them; that there will be married quarters required. Notwithstanding the fact that it is located at Roberston Barracks, Palmerston really has sufficient Defence personnel located there. It is no secret that Defence are looking to acquire property along Lee Point Road. It is a matter of negotiation between the Commonwealth government and the NT government that that land is released in stages to allow developers, including DHA, the opportunity to put in married quarters. There is a whole range of old married quarters in the northern suburbs that need to be sold off, and new married quarters provided. The acquisition of that Commonwealth land to allow that development to occur would be a major initiative and something that is well overdue. I hope the government - I am sure the government - is well and truly progressed in that regard.
I was impressed to hear in the ministerial statement that the intellectual property training with regard to helicopters is being conducted. I would like to know more about that; I think it is incredible that they are doing that. It really points to the fact that there is a genuine desire to get Northern Territory firms involved. Again, that will point to the fact that Northern Territory firms alone probably cannot do it; they will need to joint venture with national and international companies that have not only the capability but the security clearances to repair that type of equipment. I would have thought, in that regard, it really needs the minister to keep a very close eye on how that is developing; how we can leverage off the support for that sort of equipment. Because it is not only the maintenance of that equipment on that particular helicopter, it is the type of technology that that helicopter carries that is right throughout the South-East Asian region and might be available to Territory firms if they can get their foot in the door - not unlike the way Darwin Ship Repair has done it, with the licences it has in repair for American ships. It is not an easy process to become an accredited contractor for any American warship, and I am sure that those companies themselves would point to the laborious process they have had to go through to obtain that accreditation. That is the process that they need strong support to obtain, to get access to that intellectual property, so that they can get a cut of the maintenance contracts.
With regard to the Navy replacement patrol boats, I am not quite sure what the Defence thinking is at the moment, but my view would be that, unless it has changed, most, if not all, would be located in Darwin - some might remain in Cairns, but their logistics base will be primarily in Darwin. I hope for the new patrol boats - no matter who the tenderer is - they see Darwin as a prime location for their repair, or a great deal of that repair, and that the government is working hard with the companies that are working with those preferred tenderers to ensure that a great deal of that work comes to Darwin.
Thank you, minister, it was a good statement. I appreciate the detail you have provided. It gives us a good snapshot of where we are with the major projects with regards to Defence. I am sure that your department and you, yourself, are working hard to meet the challenges that Defence will continue to give Territorians and this government in the future.
Mr KIELY (Sanderson): Madam Speaker, tonight I support the statement on Defence delivered by the honourable minister.
My observations are very much along the same lines as the Leader of the Opposition, who touched on the amount of expenditure that was coming into the Territory because of the Defence build-up in the north. He mentioned that not even included in that figure was the salaries incomes that go to the service people and their families who make up the work force. Well, that figure is actually about $250m annually, that the service personnel contribute in their salaries to the Territory economy. It is for that reason that, I believe, small businesses are intrinsically involved in the day-to-day lives of this particular segment of our community. It is not only the businesses that service and support the Defence Forces’ complex array of equipment, it is more than that. It is also the services such as the local shopping centres, the service stations - indeed the services that are available to the wider community. They are sustained to a great degree by the presence of the Defence Force in the Territory.
This is just one of the reasons why I believe it is necessary for the wider community to have an understanding of the people who make up our Defence Force. It is important for a number of reasons, actually, and I will touch upon some of these in due course. It is important, I suggest, because these people come into our community from all corners of the continent, some with very little knowledge of the Territory. They generally come to our community with an expectation that they will be leaving in three, four or six years time. In the main, they do not come as people who are wanting to make a fresh start, but rather as people who are here to do a job and who want a reasonably good experience for themselves and their families, should their families accompany them.
The minister has made mention of a number of new initiatives that are being undertaken by Defence in coming years, and it is on one of these initiatives that I will focus in order to demonstrate to the Assembly the significant impact only one of these initiatives will have on the broader Top End communities of Darwin and Palmerston. Robertson Barracks near Palmerston is the home of HQ 1 Brigade. The HQ 1 Brigade is the Australian Army’s high readiness mechanised formation with excellent tactical mobility, a high level of endurance, hard-hitting fire power and sophisticated communications. It is capable of conducting mechanised operations in mid-intensity conventional warfare and peace operations with United Nations or coalition forces. As an adaptable and versatile formation, the brigade is also capable of conducting operations concentrating on peacekeeping. The brigade maintains the ability to operate in complex political or military situations throughout a wide range of terrains and environments, including urban and rural landscapes.
The 161 Reconnaissance Squadron, which is part of the HQ 1 Brigade, was raised at RAAF Base Amberley in 1965 as 161 Independent Reconnaissance Flight, and deployed the first Australian combat troops to South Vietnam. Today, the Squadron is based at RAAF Darwin, operating as part of the 1 Aviation Regiment to provide reconnaissance support to the HQ 1 Brigade. That squadron at RAAF Darwin is equipped with Bell 206 Kiowalight observation helicopters.
As part of the federal government’s program to strengthen its capabilities in the north, 1 Aviation Regiment will be relocating to Northern Territory from its base at Oakey, South Queensland. As well as the transfer of its logistical and technical support from South Queensland, 161 Reconnaissance Squadron will be transferring to Northern Territory from north Queensland. It is anticipated that, by late 2005, the regiment will have approximately 400 personnel and, as stated, half of these will be married or will be accompanied by partners. It is also planned for the Regiment to be equipped with 17 new French designed Tiger armed reconnaissance helicopters, and these will cost around $1bn. The Tiger will transform the Army’s ability to conduct tactical reconnaissance by day and night, provide vital capability to escort and protect the Blackhawk helicopters as they transport troops and supplies.
While some jobs in relation to servicing these helicopters may be available to the general population of Darwin and Palmerston, in all likelihood, given the nature of the equipment, the skills required will probably initially be sourced through specialists within the Australian Defence Forces, or will be purchased on a contract basis from the multi-national manufacturers.
However, that is only part of the story. Jobs will created in the building of on-base accommodation, for both the helicopters and for those whose job it is to keep them flying. Houses or units will have to be built, or existing properties leased to families and individuals who do not wish to live on base. Most certainly, the Defence build-up in the north brings a lot more than just additional equipment, and service men and women. With the advent of additional families, more jobs in the community are created. As an example a new leased addition on-base care centre located in Palmerston opened on 11 February this year. The Durack Children’s Centre caters for up to 60 children aged between 0 to 5 years and operates a 11 hour span from 6.30 am to 6.00 pm Monday to Friday. In all probability, additional places and family day care will be negotiated. Further opportunities for flexible irregular out-of-hours care where shift work requirements occur, will present further opportunities for people to obtain employment.
Apart from their contribution to the economy as consumers, 50% of the proposed new arrivals, as I stated, will be in the company of a partner or other member of their family. These partners will be in possession of skills and abilities that can probably be readily utilised by Territory firms. We all know that the Territory, at this time, is confronting the problem of a skilled work force for the emerging jobs being created by our hard work in bringing gas onshore, the Defence build-up itself and, of course, the rail project. Office jobs, jobs in engineering, drafting, and in electrical and mechanical fields - the whole gamut of jobs are now established and in our emerging industries. With the influx of these partners to ADF people into the work force, there is the potential to fill the gap while we train up our local residents.
These people will also contribute strongly to our school councils of schools where their children will be placed for the time they are located in the Top End. They will participate in community clubs, both as members and on the committees. They will join in the activities of the community and make friends with Top End residents. In short, these people who come to the Territory as part of their service to our nation will become part and parcel of our community - a very welcome part. I believe we as a community have a lot to value from these new arrivals within our community. The richness and diversity of views they bring with them enriches our own local culture immensely. I believe the individuals and the families who make up the great Australian Defence Force community contribute as much to the Top End in their own way as do those of us who have longer ties with this place.
I must say I am always pleased when people come to the Territory with their work, be they civilian or service people, elect to stay or return upon completion of their contract. I am sure that, of the 600 people who will be coming to live in Darwin and Palmerston as a result of the refurbishment and relocation of 1 Aviation Regiment, quite a number will end up themselves becoming long-term, hard-working and good citizens of our region.
I emphasise that Defence Force personnel are not just a part of our economy. Their economic input is important, but we must remember that they are very much members of our community. We should never treat these somewhat transient members of our community as cash cows. These people mean more to our community than just a steady stream of disposable income from fortnight to fortnight.
As we consult with the community on our social development strategy, which I know we are doing right now, we must make sure that the social needs and contributions of Defence Force people and their families are taken into account.
I would like now to touch upon one more of the major positive impacts of the relocation of 1 Aviation Regiment to Robertson Barracks. It is a consolidation of its squadron to the one place; that is, there will not be any, or at least minimal, military helicopter traffic over the northern suburbs of Darwin which presently happens from time to time, with, I believe 161 Squadron helicopters returning to RAAF Darwin. This is, indeed, good news for the residents of Wulagi, Anula and Northlakes. As the local member, I have made representations on constituents’ behalf in regard to both fixed and rotary wing aircraft overflying these suburbs. Whilst by no means an everyday occurrence, the times that this activity does happen are regarded as a nuisance by some of my constituents. It is, indeed, heartening news for these constituents that this type of activity will decrease rather than increase in the future.
This is not to say that Sanderson’s win is another electorate’s loss. A feature of Robertson Barracks is the forethought that went into planning for future expansion of the base. Part of the forward plan was to build an area for an aviation regiment, as well as to factor in appropriate flight paths. As we all know, approaching flight paths to RAAF Base Darwin are over residential areas. This will not be the case for Robertson Barracks. The proposed flight paths that will be utilised by 1 Aviation Regiment are such that they will not inflict additional noise pollution urban residents. On behalf of my constituents and those residents in Palmerston and Howard Springs, I thank the Defence Force for its far-sightedness on this matter.
Madam Speaker, I commend the minister’s statement to the House.
Mr MALEY (Goyder): Madam Speaker, the Australian Defence Force and the contribution it makes to the Northern Territory through its personnel is enormous, not only in terms of the money which is spent up here, but also from a social perspective as well. I concur with many of the comments made by the last speaker and the member for Brennan.
I am not going to go over all the things that were said. A lot of the things that I was going to say touched upon many of those matters, but some credit should be given to the enormous amount of work which our federal members are doing; namely David Tollner and Nigel Scullion, who have been battling for the Territory, to ensuring that the Defence commitment continues in the Northern Territory. As I said, the Defence contribution to the Territory is welcome and should be encouraged, and the CLP will work closely with the government to do all that it can to help facilitate that continued commitment and continued development.
The acquisition of the helicopters which we have heard about - the particulars are contained at page 10 of the ministerial statement - is certainly good news. Whilst I have heard about it, and there has been a lot of talk, this is probably the most detail which has come to me, and it is good to see that this type of detail is being provided to parliament and the wider community in the Northern Territory. 1 Aviation Regiment, some 400 of all ranks, half of whom are married with kids, will be a significant contribution to the Northern Territory - to Palmerston and the surrounding areas. There are a lot of Defence Force personnel who are now really making the Territory their home. They are settling in so well that there are many people buying rural blocks - five and 10 acre blocks in the Howard Springs, Humpty Doo and Berrimah regions. This is fantastic.
The ready reserve is something which was also touched upon in the statement - the contribution which the Australian Defence Force makes to the training of many of our indigenous young people. There are lots of indigenous people, particularly some of the guys I know from school who have grown up in town, who really appreciate the opportunity to get out bush and learn some of the skills which have been lost in recent times.
The construction work which the Defence Force brings to the Northern Territory is significant, there is no doubt about that. Since Cyclone Tracy, the construction industry really has been the barometer of the strength of the Northern Territory economy. The Defence Housing Authority’s investment in the Northern Territory, the Territory families and the soldiers, and the solid type of people they are, should be commended.
There are links now between the Chamber of Commerce and Industry other Defence industry support groups. There are some excellent conduits between local companies, it seems, and the right people in the right departments who are in charge of administering those sometimes complicated contracts. They are certainly lucrative from a small business and industry perspective.
With the establishment of such a significant contingent of Defence personnel and infrastructure in the Northern Territory comes the opportunity for the Territory to host more significant Defence exercises, all of which are welcome. As the Territory is, of course, only a small economy, such exercises make a significant contribution and have a real effect, and inject a large sum of money, over short periods of time, into a fragile Territory economy.
On a more general observation, I was recently playing a few social games of rugby union and there were a number of Defence Force personnel - when they are in town and not on exercise – who come down to training for the mighty Humpty Doo Swamp Dogs. I must say they all exhibit a real can-do attitude. They are a delightful group of young men, and it is a real pleasure to have them along at our club.
A member: The Swampies.
Mr MALEY: The Swampies, indeed. In fact, this can-do attitude actually spreads, and you will have these guys turning up at barbecues, they organise functions, and they are really quite proactive.
The CLP can, quite rightly, take pride in its role in developing a strong relationship, which it has helped forge between Defence and the local industry in the Northern Territory. I can assure you, the CLP will continue to work hard in the future for the benefit of all Territorians which, of course, includes those who are members of the Australian Defence Force. The member for Brennan made an excellent point: people who happen to be employed by the Australian Defence Force are Territorians first and foremost, and they will, more and more, cease to be put in a separate category of Defence personnel. They are Territorians and, indeed, that is something which is one of the Northern Territory’s greatest strength; the fact that we are multicultural. Whether you are of indigenous, European or Asian descent, if you work for the Defence Force, or if you live in a remote community, then we all get on well together. We are Territorians first, and it is a real example of enhancing the richness off the Territory and the Territory economy.
Ms LAWRIE (Karama): Madam Speaker, this evening I commend the ministerial statement provided to this House today by the Minister for Defence Support, Hon Paul Henderson. This, indeed, is a most important statement in the context …
Dr LIM: A point of order, Madam Speaker! The opposition continues to use the name of the member rather than seat, and has been doing this for quite some time.
Madam SPEAKER: Yes, member for Karama, refer to the member’s portfolio …
Dr BURNS: A point of order, Madam Speaker! We are not the opposition, we are the government.
Madam SPEAKER: It does not matter if you are government, you do not use people’s personal Christian and surname, is what the point of order is; you use the title.
Ms LAWRIE: I did use the title, Madam Speaker. I said the Minister for Defence Support.
Madam SPEAKER: I think you also used his …
Ms LAWRIE: That is right.
Madam SPEAKER: Just remember that in future.
Ms LAWRIE: Madam Speaker, this evening I commend the ministerial statement provided to this House tonight by the Minister for Defence Support. This, indeed, is a most important statement in the context of the Northern Territory’s social and economic fabric.
My interest in Defence stems from the acknowledgement that Defence personnel live in my electorate, and from a personal understanding and knowledge of the tremendous effort that our Defence personnel undertake daily to serve our nation and defend our northern shores.
My first dramatic contact with the critical role Defence personnel can play in our society came in the tragic aftermath of Cyclone Tracy, Christmas time 1974. As an eight-year-old survivor of that disaster, I witnessed the Defence personnel of Darwin set aside their own personal family needs and rally immediately to the task of serving the survivors of Tracy. Their response was swift, their commitment unswerving. They were very quickly joined by personnel from throughout Australia, and organised an orderly evacuation, with many Territorians being flown out on RAAF Hercules. They also supplied crucial food, water and medicine.
Defence personnel, be they Army, Navy or RAAF, set about the dangerous and difficult task of clearing roads so that people could safely move around our city and commence the awesome task of reconstructing our lives and our community. It was Navy personnel who worked shoulder to shoulder with my family to clear our block of dangerous debris. I stood as a child and watched as Defence choppers flew in and quickly cleared Nightcliff Football Oval, ferrying personnel and essential items in and out of the community of Nightcliff and surrounding suburbs.
My father spoke to me of how the Defence personnel had respected our families needs in how they cleared our block. Despite disease concerns - in hindsight unfounded - they agreed to allow a few centimetres of water to remain in our pool after pulling a substantial amount of our house out of the pool. That care and understanding meant our pool did not pop out of the ground, as had happened to other pools in the suburb that had been completely drained.
I saw the Navy ships in Darwin Harbour providing shelter to locals, giving all-important rest and recreation as people worked tirelessly to rebuild their homes and, indeed, their lives. They importantly lifted the spirits of locals and provided the fun times among the hardship. I believe we are indebted to our Defence personnel.
A more recent example of their tremendous endeavours and importance during an emergency was the Katherine floods. I have spoken to reservists who had lost their own homes in the floods, but worked around the clock to assist Katherine residents rather than tend to their own needs.
With this history, perhaps it was not surprising that my sister, Dianne, joined the Navy as a teenager and has already committed 21 years of service to our nation, rising through the sailor ranks to seniority of Warrant Officer and receiving the significant recognition of exceptional service by being awarded the Conspicuous Service Medal - no mean feat for a single mother in the services. During these 21 years, I have gained a significant insight into the sacrifices made by Defence personnel to serve their nation and, ultimately, protect our borders. Defence personnel are often on call and are posted wherever their service requires. This results in continual removal from their natural community and, with each posting, they must find the basic support networks required to exist. I refer to child-care centres, schools, shops - those everyday services that many of us take for granted. Defence families are often separated for substantial periods of time, with three months separation not seen as extraordinary in the services.
During periods of separation, Defence personnel often serve in harsh conditions, from remote inhospitable terrain on land, to our seas and oceans, often beyond communication with their loved ones. They miss loved ones births, deaths and marriages. This presents unique problems for the personnel and their families. Imagine being a parent of young children, in a base far from your own family support in a city still strange, while your partner leaves for weeks or, indeed, months at a time during an exercise. It is to the families of Defence personnel that I believe our government can focus its support.
How appropriate that the portfolio has a title of Defence Support. We know Defence falls quite reasonably under Commonwealth jurisdiction and that the Commonwealth is clearly focussed on moving its Defence resources north. I welcome the resources outlined in this ministerial statement that the Commonwealth has invested, and is continuing to invest into this movement north and, indeed, the substantial flow-on economic opportunities that this provides to small and medium sized Territory businesses.
I have spoken to the crucial Australian Industry Defence Network, Northern Territory Chair, Mark Smith, a successful business man who lives in my electorate. Mr Smith is Managing Director of North Australia Radio and Electronic Services. He is highly experienced and well positioned to understand the economic opportunities that such massive Defence commitments provide to local business people and, therefore, our wider community.
Our Labor government shares the desire to maximise the economic opportunities to Territorians, with a shift north that generates billions of dollars of spending in the Territory. I congratulate the minister for ensuring that his department provides secretariat and financial support to the Australian Industry Defence Network.
I have quite deliberately dedicated some of my time as the member for Karama to supporting local business people in their efforts to strengthen Defence allied industry. Along with the Chief Minister and Minister for Defence Support, in July I attended the official opening at Palmerston of the General Motors Defence Australia Darwin Logistics centre and was given an extensive explanation of the facility and how it has evolved, and the potential for further expansion. I am delighted to say that it was the hard work put in by a Territorian and, indeed, I commend specifically Richard Johnston for his persistent effort to ensure that the contract landed here rather than South Australia.
I have also been out on a patrol boat and experienced first hand the manoeuvrability and simulated exercise of border protection. What strikes me about each interaction I have had with Defence personnel is also their enjoyment of living in the Territory. A few weeks ago, I was chatting to young RAAF men based at Tindal. They had hailed from inland small country towns down south and said they loved working at Tindal and enjoyed both Katherine and Darwin, saying that it suited their way of life. With an aversion to big cities, these country lads are enjoying the country town style of our friendliness and access to recreation they knew and enjoyed as boys - shooting and fishing to name just a couple.
I have also had the pleasure of visiting Robertson Barracks as a representative of the Chief Minister, and I commend Brigadier Damien Roche for his fine command. I found the Army personnel quite justly proud of their history and efforts in East Timor. Indeed, they have a continued presence there as peacekeepers and have served our nation with distinction.
I know that the shift of Defence personnel north has brought significant social and economic benefits and I also want to note elements of the ADF here that I believe are innovative and exciting. In particular, I wish to praise the work undertaken by NORFORCE, the Army’s northern surveillance unit that was launched in 1980. Under the previous command of the visionary Lieutenant Colonel Martin Glass, NORFORCE not only covered the massive area of surveillance of the Northern Territory and the Kimberley region of Western Australia, but NORFORCE was a groundbreaker and innovative during these years because, in terms of indigenous employment they have delivered where many government departments have shown inertia in the past, and are only now shaking off that inertia.
NORFORCE went out and actively liaised with community elders and recruited young, fit and previously ignored and bored indigenous men. Today, indigenous troops make up about 250 of the 550 NORFORCE personnel. This impressive employment record was achieved by adopting an innovative cadetship program under the tutelage of Lieutenant Colonel Glass’ engagement with local communities. The cadetship program was adopted from a similar Canadian model introduced and adapted to the Territory by Police Superintendent Graham Waite.
This crucial improvement of surveillance, delivered through actual employment of indigenous Territorians, is still a driving focus of the current NORFORCE Commanding Officer, Lieutenant Colonel Roger Bryett who, I have heard, is continuing to respect and advance the role of our remote indigenous communities in our security. I thank him and both the permanent and reservists NORFORCE personnel, for their tremendous work throughout the Territory.
Complementing this land border surveillance work of NORFORCE is the Defence initiative of basing the Patrol Boat Force element group, commanded now by Captain Frank Kresse, at Larrakeyah. The Patrol Boat Force now has 10 patrol boats based in Darwin. They have been at the forefront of border protection efforts and have peacefully brought in illegal fishermen and immigrants. They are operational and at the cutting edge of our defence. Their work is not simulations through exercises; their work is very real. I commend their efforts to protect the Territory.
I want to thank Brigadier Mike Silverstone, Commander of Northern Command at Larrakeyah. His job is extremely difficult and demanding but executed as a true gentleman and, I believe, an inspirational leader. I have found him to be always very hospitable and patient in providing fair and honest answers to my questions.
We heard from the Minister for Defence Support of Defence expenditure here of more than $550m in the past financial year. Quite deliberately, I have chosen not to focus on the economic drivers but, instead, discuss the social drivers that I believe have strengthened and improved the fabric of the Territory’s society. In short, the Labor government does not only value the money that defence has quite undeniably pumped into our society but, above all, we value the people who come here and share our place in this great nation.
Tonight I hope I have paid some honour to the sacrifices our Defence personnel and their families make daily to meet our defence needs. Without requiring the call to action, they are already going where we need them to and, when an emergency does arise, they are the rock that we cling to. I pledge to continue to support the Minister for Defence support in his efforts to improve our society’s support for the ADF.
Mr BALDWIN (Daly): Madam Speaker, I have small contribution to this statement. I will say straight up it is a very good statement, one that is similar to others that have been delivered in this House previously by both myself and other ministers. It is a great update on those statements, and we should keep providing that information into this arena, so that we can all keep updated on this very important sector of the Northern Territory community because the defence industry, as we all know and, as the minister stated throughout his statement, is very important. We have heard a lot of words to that effect in this debate on the statement tonight: $550m worth of spending per annum in the last sector, anyway, and that is down somewhat from other years. However, that is quite reasonable given that those other years included massive build-up expenditure on places like Robertson Barracks. Certainly, $0.5bn into the economy is very, very important.
It is also important, as we heard, to the social fabric of the Northern Territory: 14 000-odd people, 2500 dwellings, and right across all sectors of the community. They involve themselves in all sectors, obviously with wives, families going to schools, and the partners of these Defence personnel having their own jobs. They bring with them new ideals. They also bring with them new needs and requests as well, which is not a bad thing for the Northern Territory, I would suggest, and keeps us on our toes.
It is a great thing to note that many of the Defence Force personnel - and I know it is a Katherine experience particularly - opt to get out of the services after they have done a term or two in places like Katherine and, indeed, Darwin, because they just love the lifestyle when they get up here. I think the member for Karama mentioned these chaps, as did the member for Goyder about how they like to involve themselves in local sport and lifestyle with participation in things like fishing and shooting. We see a great many people in Katherine, opting out of the Defence Force to take up residence permanently in Katherine and get into their own businesses. That is a great thing also, of course, for the development of the Territory.
On the economy side of things, obviously housing and the housing needs of the Defence Force personnel - not only on barracks, but off barracks - is a great stimulus to the construction industry. It has been for a long time. Obviously, it slumps off when the Defence Force drivers start to stabilise. However, we are now looking at another expansion with the coming of the 1 Aviation Regiment, and some 150 houses needed there for off-base. That is a great thing.
Carey Street, as the minister has mentioned in his statement, is a fantastic development. It is the first time that Defence housing has undertaken that sort of development, being a stand-alone high rise development, and the first time that they have actually gone into a development where they build for their own needs and also for private sale, which caused a fair bit of angst in the community in Darwin amongst the construction industry. There was a Senate inquiry committee - as they go through these processes of expenditure of Defence monies - had a look at all of that. In the end, they gave the Defence Housing Authority the go ahead, and we see that now rising – well, more than rising out of the ground, it is two parts completed on Carey Street. That is a great move forward for DHA, but also for the Darwin inner city community. It will bring more people into Darwin, and make no mistake, they have disposable income. Hopefully, that will do positive things for the inner city part of Darwin. It will also give a chance for investors to take up units in a very prestigious site, and I am sure that we will see those units taken up.
The issue of more land is always a problem that government needs to stay ahead of for Defence housing, and the Lee Point land has been mentioned by the Leader of the Opposition. That is something that needs to be pressed ahead with, with great firmness. I know, in my time, as both Defence Support minister, and Lands minister, we had to keep banging on the doors and keep using our federal contacts to move that along. The time lines for the moving of the Defence facilities out at Lee Point keeps seeming to get dropped back and deferred, but there is land available out there that they could actually come to an agreement on almost immediately. However, you need to be persistent and move ahead with that, and keep the pressure on. It is very important that we secure that land. The government has a first option on that land, so that needs to be waved in front of Commonwealth bureaucrats in the Defence Department all the time. The pressure needs to be kept on to secure that land for the future housing and recreational needs of the Northern Territory. Of course, native title is an issue in that area as well, and that needs to be addressed in parallel.
I can say that I am very proud of the fact that I was a Defence Support Minister in my time as minister in the government. It led to a great many experiences in that area, and a great many contacts, and I will get to the contacts later. I am also very proud that the CLP government was the first government in any Australian jurisdiction other than Commonwealth to have a Defence Support Minister. It used to always raise the eyebrows of other ministers or oppositions around Australia, because they always asked what was the role of a Defence Support Minister. Obviously, it is nothing to do with the strategic defence of the country because that is a Commonwealth role, but it has everything to do with securing business for Northern Territory local businesses of Defence expenditure. Also, on the other side of it, with the Defence build-up in the north now having been undertaken, to help integrate Defence families into the Northern Territory community as much as possible. I believe we have been outstandingly successful on that point.
People who have other experiences around Australia, can tell you about all sorts of issues and problems with Defence facilities in their area, social and otherwise. I do not believe we have had any of those problems here in the Northern Territory, and that is because of the relationship that we built up - and now the present government is carrying on with a responsible minister for this area in the portfolio line-up – and also a Defence Support Unit within the department structure. Those people have done a fantastic job over the last number of years, in helping to settle personnel who came into the Northern Territory community with the Defence build-up and also, obviously, making sure that Territory businesses have the best possible advantage in picking up business in that Defence expenditure. I would like to congratulate all of those people who have been involved in that Defence Support Unit for the great work that they have done, and continue to do. I am sure that, as the Leader of the Opposition has already outlined tonight, that is an area that we have to make sure is never under-resourced because of the very important contribution that Defence makes to the Northern Territory.
The minister makes mention of GM Defence coming to the Northern Territory. That is the type of initiative that is great for the Northern Territory. The GM company has been looking at the Northern Territory for quite some years, and it was with the assistance of people in the Defence Support Unit within the departments, as well as others like AIDN-NT, that have convinced them that the capability is here. Really, that is the thrust of where we have to head now, and it is the same with the helicopters that are now coming to the Northern Territory. We have to encourage, entice, convince all of those maintenance and supply contractors who are based down south because that is where the major components of the military machine were based, that they now need to come north because they are thousands of miles away form their service commitments. It is a great comfort to see that GM have made the commitment after quite a few years of investigation and talks. I was happy to meet with them when I was minister. They are now here. They started off with just a few employees; that has already increased. I am sure you will see their facility increase accordingly as they settle into the Northern Territory.
They bring with them, obviously, corporate and market grunt, and that alone will attract others who are in similar businesses to them to also involve themselves here in the Northern Territory. Certainly, that will then encourage and enhance other local businesses, Territory businesses, to be involved in Defence work. They obviously bring with them a lot of new talents to pass on to our businesses.
As I said, one of the challenges is to convince the suppliers and the maintenance contractors of the new Tiger helicopters that are going to Robertson Barracks - whenever they are sorted out - to also set up similar facilities in the north because all of these machines these days are in components, where they have spare components on the shelf. So far, the experience when something breaks down - whether it is an engine or a turbine out of a helicopter – is they pull that out and send it south to have it fixed or tested or whatever. It would be a great day to see that all those components can be looked at with the expertise up here locally, rather than having to worry about transporting them a long way away, with all of the logistical problems that go with that.
There is obviously lots of other potential with those armoured helicopters coming here. If you combine the needs and requirements that they will have, with our growing oil and gas fields and the servicing that they require through helicopter transport, obviously there is a lot of synergies that can be worked on there. I am sure the minister is looking at some of those things.
The same can be said about shipping, whether it is our locally-based patrol boats or the visiting Defence shipping that comes in to Darwin Harbour, which is on the increase over the last few years and I am sure will continue to increase. They bring with them all sorts of opportunities in maintenance and repairs. The minister has outlined those involved in that - the supply to those ships, the recreational needs of the officers and the personnel on those ships, the local tourism opportunities, and the other local business opportunities. The expenditure that they bring with them into the local economy every time a ship visits is just extraordinary. I know from my experiences in meeting with quite a number of the US commanders of those ships and fleets that have come into Darwin, that they just love Darwin. They love it because of its friendliness, its atmosphere and its relaxed attitude, and they also know now they can get the service. That says a lot for our community and our businesses. I have also had very high level US Defence personnel say that Darwin is a very strategic visiting port for US ships when they are operating within this Asian region, as they move from the Pacific towards the east.
I look forward to the awarding of the contracts for the supply of those replacement patrol boats. Those short-listed contractors are certainly on the ball. I know they have all done their homework in the Darwin area. I met with a number of them when I was minister and gave them the heads up of what is available in Darwin and what they should be looking for. It will be a great thing when those contracts are awarded, because I believe that there will be flow-on benefits for Darwin businesses. I appreciate the work that AIDN-NT and the Defence Support Unit has had in the lead-up to the final part of that contract being awarded.
On the personnel side, I can say that one of the other great benefits that has come out of the Defence build up, is the number of people we have had up here - and it is not really recognised, but it is the enormous talent that we get up here right across the disciplines of the Defence Forces from the lowest ranks right through to the highest. A lot of them are transferred on; they do not stay here. Some of them do not want to stay here. But they do transfer on, quite a lot of them, as I said. Quite a few stay here, but those who do transfer on, I believe take with them a good message about the Northern Territory, and they pass that on to their colleagues and families and family networks down south. That augers well for the Northern Territory as well.
That is particularly relevant when we look at the higher level officers that have been a part of Defence in the north, who go on to have significant influence in the whole Defence make-up and the strategic direction of Defence. They speak up for Darwin and for the Northern Territory, I believe, in great accolades. They do have a lot of influence when it comes to strategic matters, matters such as the white paper that the Northern Territory government contributed to in 2000-01, that has been mentioned in here.
Whether it is base commanders who have been at Tindal - such as Group Captain Brent Crowhurst who did such a fantastic job in the Katherine floods in assisting the people of Katherine - who go on to other things, or whether it is the commanding officers of Headquarters Northern Command, going back to Brigadier Chris Roberts, followed on then by Commodore Geoff Smith who went on to become Rear Admiral Geoff Smith. He was then in line, just recently, to become Chief of the Navy. Unfortunately, he was one of two who was put up for that job and he was overlooked, which means that he is at the end of the line, basically, so he goes out of the service. But they certainly take with them a lot of knowledge about the Northern Territory.
Following on from him was Commodore Mark Bonzer. When Geoff Smith was elevated to Rear Admiral, Mark Bonzer was commanding a ship going towards the east coast, and he was literally told to turn right, steam into Darwin, get off at Darwin Wharf and his new promotion was Commander, Northern Command. I remember he turned up to a function on the green out here, that night. It was virtually the first night he stepped ashore, and he still did not have his land legs. He basically said: ‘Where am I and what am I doing?’. He went on to do great things for the Northern Territory and Defence Forces up here. I believe he now has moved on to be a Rear Admiral so he takes with him …
Madam SPEAKER: Member for Daly, I believe your time has expired.
Mr BALDWIN: Has it? Already? I was going to be quick.
Dr LIM: Madam Speaker, I move for an extension of time to allow the member to complete his remarks.
Motion agreed to.
Mr Henderson: Hurry up, Tim.
Mr BALDWIN: What, you do not think this is important?
Members interjecting.
Madam SPEAKER: Order! Member for Daly, you have been given an extension.
Mr BALDWIN: Madam Speaker, I am sure you think it is important. So, all those people, are one of the great intangible benefits that has come from the Defence build up here in the Northern Territory, and I congratulate all of them.
Training facilities have been mentioned, in particular Bradshaw, and they are very significant in the whole scheme of things. The armoured personnel have been using McKinlay. McKinlay is not a very good training area. It is only good in the Dry season; it is on very sensitive soils. Bradshaw has been the place that the armoured division has been looking to go. Finally, soon, they will be able to go there. There are other training possibilities. I know Defence Forces, in conjunction with the US, is looking at places for amphibious training. They have talked to some of the indigenous communities, in fact, in your electorate, in recent times, and that may be a possibility.
Ms Lawrie: The member for Arafura.
Mr BALDWIN: The other area they have been looking to develop is a desert training area, so that when it is wet up here they can continue with their training. That would be a great opportunity for some of the areas in the south of the Northern Territory. However, once again, it would have to be suitable in soil sensitivity and that sort of thing. Bradshaw is going to be a great training area and bring with it a lot of potential. It is 8500 km2 and, as has been pointed out, with the bridge over the Victoria River, provides about 70 km of river frontage to that training area, not including the Fitzmaurice River on the northern side. I congratulate Steelcom for doing such a great job on that bridge, and for receiving awards, too, for the design and construction. It looks like we are finally under way on that project.
It is a shame that the $55m that the Commonwealth had for the development of infrastructure on Bradshaw has been there for about five or six years, and has been rolling over every budget year from that time, waiting for the agreement to be done through the Indigenous Land Use Agreement. They could have taken the road of using their own legislation and Commonwealth powers to go for acquisition. They chose not to, and that has caused the delay. The minister, in closing debate, may want to provide some of the details of what that land use agreement contains.
One of the things that was always on the board, and the people who use that area for recreational fishing, including indigenous people are very keen to know is whether it still includes the use of land. There was going to be, upstream of the bridge, along the bank of the Victoria River for some couple of kilometres, an area set aside for day use visitation by the public. That is something everybody is keen to know whether or not still exists.
So, that will be a great development when they start to spend their $55m, and a great facility. There is a lot of potential in that Bradshaw area with all of its escarpment and river flats, if you combine it with Delamere, a very high-tech bombing range out of Tindal and Darwin. There will be massive potential for training other offshore nation troops in that area as well, and I know that is being looked at a very strategic level also.
To wind up, because everybody is getting a little impatient, I would like to mention a couple of other things. The cadet program that NORFORCE has started is a great program. NORFORCE is in the tradition of the Knackeroos, which it was based on. NORFORCE is only a new name, it is not a new concept. The Knackeroos were the first ones during World War II, Curtin’s Cowboys, and there is a monument above Timber Creek. Just in case you are interested, if you are ever in Timber Creek, go up on the lookout and have a look at the monument to the Knackeroos. The cadet program that has been instigated now in quite a number of Aboriginal communities, including Port Keats, will be a great thing as well that will complement the NORFORCE program.
Could I also say, in closing, I pay my congratulations also to Brigadier Mike Silverstone for the great job that he has done in his role as Commander of Northern Command. Also to Barry Coulter for his great work in being the NT Coordinator of the Defence Industry Training Course, which was delivered to Territorians and other Australians - a great insight into the benefits that can come from the defence industry.
I commend the minister for his statement.
Mr BONSON (Millner): Madam Speaker, tonight I support the comprehensive statement on Defence in the Territory that was delivered by the honourable minister.
The contribution Defence makes to the Northern Territory economy should never be underestimated. I am not too proud to say that, until recently getting elected, I must admit I was quite unaware of the extensive amount of money being spent by the Defence Force in the Northern Territory. Certainly, with the RAAF Base inside my electorate, I have had a very quick learning curve and have found out that, indeed, they do contribute significantly, socially and economically. That has been commented on tonight by many members of this House.
As the minister has noted, the Northern Territory industry such as housing, retail trade and tourism have all benefited substantially from the increased Defence presence here, helping to broaden the base of our economy. I know from my involvement with Defence personnel and families in my electorate, that they are very interested in Territory lifestyles. They also see it as an opportunity to meet new people and get involved with different cultures and, of course, take advantage of the fishing and shooting, as mentioned by the member for Goyder and other members in this House tonight.
I take this opportunity to detail some of the projects which will be delivered for Defence by Territory companies this financial year, a number of which will be delivered in my electorate. In so doing, I note that Defence is a shared responsibility. It is true that Defence does rely on local businesses to provide infrastructure and support services for its operational personnel. This year, an additional $78m of expenditure on infrastructure works in the Northern Territory will bring new business and employment opportunities on several projects.
The Bradshaw field training area infrastructure works at Timber Creek, is worth approximately $27m. I will be working to make sure that the indigenous people living in the Timber Creek area get the maximum opportunity to participate in this construction phase and the subsequent ongoing maintenance phase of this significant project. I know it is a push in many remote communities, and also urban communities, that local indigenous persons are being trained in such infrastructure. This is a great idea and it adds to the local economies. It is pleasing to hear from the minister that the last impediment to the project has been resolved and that it is likely to commence next month.
At the RAAF Base, Darwin, there will be development of operational facilities, a project worth $1m. Also at the RAAF Base Darwin, base redevelopment worth $3.6m; the Darwin married quarters electrical upgrade worth $2.6m; and Darwin vehicle shelters worth $3m. These projects are all work and opportunity for Northern Territory companies, and I know that the people who live in Millner who are involved in the construction industry, and others who supply service to firms, are keen to be a part of it.
I would like to briefly touch on the significance of NORFORCE, not only for our defence, but also the strong and positive influence on the young indigenous people living in communities across the Top End, who look up to NORFORCE members as great role models, giving them something to aspire to. Actually, in the past few months I have had the opportunity to speak to members of NORFORCE about their experiences in remote areas. I know they get a real positive buzz from the effect that they have on remote community indigenous youth. They report back that it is very positive and they feel that they are looked at by these remote communities as being role models. As many people would know, in remote areas role models are something that we should be promoting and putting up something to aim for. Possibly, NORFORCE will be offering a career path for indigenous youth and I will certainly be interested in expanding this role.
Tonight we have had the opportunity to listen to many members talk about their experiences. In particular, I thought the member for Karama highlighted some of the special roles that the Defence Force families have played over the history of the Northern Territory. I, too, have stories about Cyclone Tracy and the evacuation and efforts that those Defence Force families put in. Certainly, there are many local families who owe a great debt, in particular regarding the evacuation and the clean-up.
I also would like to briefly comment that I had the opportunity to attend the 100th anniversary at Robertson Barracks of 5/7 RAR. It was a fantastic cocktail party and everyone out there was very hospitable and very interested in my life and what I was about. I was amazed to listen to comments that they thought this was the most fantastic place to come as they were accepted in the community with open arms. They actually mentioned that, in many other communities, they were not shunned but certainly not accepted as well as they were in Darwin. They were very pleasantly surprised and very appreciative of the Darwin and Territory welcome that we all know and love.
Madam Speaker, I commend the ministers’ statement on Defence support to the House.
Mr HENDERSON (Defence Support): Madam Speaker, I thank all members for very fulsome contributions on this statement tonight. It was a detailed statement to bring members of this House and the Territory public up to date on what was happening and in the pipe line for the Defence Force - contributions not only to our economy but also to the social fabric of our society. I am not going to go through speakers one by one this evening, but the contributions stand on the public record. It just goes to show, as I said in Question Time today, that the support for the ADF build-up here in the Northern Territory is absolutely totally bipartisan. As the Leader of the Opposition said, a real role model for integration of Defence Force personnel and their families in a community which is second to none in Australia.
To sum up, much of the statement I made was focussed on the economic contribution that ADF personnel and infrastructure developments make to our economy. Also, to pick up on members’ comments, a huge commitment and contribution to the social fabric of our community both in urban and rural areas. That has certainly been well put on the public record tonight.
I pay tribute to ADF personnel and their families on their commitment to serving our nation, particularly as we are in very unstable global environment at the moment. They have our best wishes and all of our confidence in whatever they may be called on to do in the near future. As a government, we will continue to work with the ADF personnel and their families to support their vital strategic presence here in the Northern Territory. They are part of our community and a large part of our shared future.
Madam Speaker, I move that the statement be noted.
Motion agreed to; statement noted.
Ms MARTIN (Chief Minister): Madam Speaker, I move that the Assembly do now adjourn.
Madam SPEAKER: Are you sure you want to do this at five minutes to midnight, member for Johnston?
Dr BURNS (Johnston): It is fairly short, Madam Speaker, and it might be interesting to some. It is interesting to me.
I report on travel undertaken under the RTD to Brisbane to attend and deliver a paper at a conference hosted by the Brisbane Labour History Association. The conference was held at the University of Queensland on 7 and 8 September, and the focus of this conference was the social protest movements, and Labour movement in Brisbane during the 1960s and 1970s. These movements arose in the context of political and social oppression during the Bjelke-Petersen government, which was also subsequently shown to be corrupt by the Fitzgerald inquiry. I did say a little in my maiden speech about this, and I will just quote selectively.
It was quite interesting at this conference to hear some of the stories of people who were severely beaten by police at that time, some who were terrorised by police, including the notorious Don ‘Shady’ Lane who was a member of the special branch. Some of you might know that he subsequently became a member of parliament in Queensland for the Liberal Party, jumped ship to the National Party and was subsequently shown to be corrupt and spent some time in gaol. So there is a bit of poetic justice there. There were some horrific stories of people having guns put to their head. It was not a very nice time at all, so I am not really overstating the case to say that some people were vilified, oppressed, sometimes by force.
However, there were some people of intellect, courage and integrity who stood against Joh Bjelke-Petersen and his excesses, and I will mention some of these people a little later. It was particularly true when Joh Bjelke-Petersen declared a state of emergency during the 1970 Springbok tour. There were some pictures shown at this conference of a barbed wire barricade - it would have been about 15 feet high - built around the Brisbane Exhibition Ground. There was a track between there and where they played and it was full of policemen. So all of this for just one football game to support the Springbok tour and, I guess, apartheid.
In the long term, as I said in my maiden speech, the corruption of the Petersen government was exposed. The moral bankruptcy exemplified by support for the apartheid regime in South Africa probably does not even bear comment today, but what is worth remembering is the courage of those who stood up for what was right no matter what the cost. I am proud to be counted amongst those people. It was in this context I describe the genesis of my own contemporary political beliefs, I suppose.
So, far from being a purely retrospective or nostalgic get together, this conference drew heavily on history to enable individuals to constructively address contemporary issues. I might add that one of the contemporary issues that was prominent was the imminent prospect of war with Iraq, an issue of vital interest to all Australians. Some of the sessions included civil liberties and legal issues in the 1970s - and I would have to say, our old mate, Terry O’Gorman was there. I did not get to speak to Terry on FOI or the drug house legislation, although I would have been quite happy to speak with him about that; the role of trade unions; the women’s movement which was very active and had its genesis there in the University of Queensland; Springboks and racism I have already mentioned - and quite a lot of the Aboriginal rights movement in Queensland against the repressive acts in Queensland at that time grew out of this particular movement; and the media and relevance today.
There were many fine speakers, too many to speak about in the short time available here. Instead I will focus on just two: Brian Laver and Dan O’Neill. Both of these men have great intellects, courage and commitment. They are certainly not hairballs, that is for sure. Both are extremely eloquent speakers and, while I might not always agree with their views, I have always found them to be interesting, challenging and enlightening. I would certainly reject the label of ‘radical ratbags’ used against them by Joh and some of his offsiders over the years.
Brian Laver describes himself as an ‘egalitarian socialist’ who has a strong commitment to free speech and civil liberties. He has the distinction of being forcefully silenced by communists and Queensland conservatives alike. There is a very striking picture of Brian during that time, with the communists actually dragging him away from a microphone with their hands over his mouth, such was their dislike of what he had to say. In 1968, he also fought against the Russians when they invaded Czechoslovakia and actually took up arms against the Russians. So, he is someone with a fairly interesting life and experience.
He continues to articulate his vision of a utopian society which is not necessarily based on materialism and production, and which is free of oppression. He also runs a bookshop in West End in Brisbane and, if you are after some interesting books when you are there, go to the Emma Goldman Bookshop and you will find Brian there.
Dan O’Neill is a remarkable man who has worked as a lecturer in the English Department of the University of Queensland for nearly 35 years. I believe Dan is a true social democrat. His interest in politics grew out of his involvement with the Catholic Newman Society as a young man. Dan still has a deep commitment to a dynamic system of democracy, particularly participatory democracy. He is also one of the finest orators I have ever heard, and he carries that to the present day. He would be in his mid 60s to 70s. Certainly, Dan O’Neill and other academics, such as Ralph Summy and Phil Richardson supplied an intellectual education outside the lecture halls, which was very important for young students such as myself, who were involved in the more scientific disciplines. We were exposed to all sorts of thoughts, philosophies and arguments which I found quite stimulating. I know many others over the years have found, particularly Dan, to be quite stimulating and interesting.
It is difficult for me to capture the expansive debate and deeper themes explored within this conference, and the camaraderie of those who showed great solidarity against the overbearing political oppression at the time. Today we face new dangers and challenges: globalism, terrorism, war in Iraq, oppression of peoples in the Middle East, Europe and Asia on the base of religion and race, not to mention Australian issues such as refugees and equities for Aboriginal people. We would do well to listen to the thoughts of those who continue to be fearless in their thinking and their honesty.
I have mentioned Dan O’Neill, who is retiring from the English department after 35 years of service, and I would like to quote a more contemporary bard, probably from the ones that he is used to analysing, who recognise the shining example that he has set to younger people over many years through his evergreen and courageous commitment to truth and justice. It is Bob Dylan actually:
I believe these words are not about eternal youth and beauty - the cosmetic beauty, I suppose - but rather, they describe those special qualities of the purity of youth - noble qualities such as honesty, truth and joy that are often lost with age. To be honest, we all suffer from that. Sometimes we get a bit cynical, particularly in the work that we are in. Dan O’Neill, as I have said, is 65 or thereabouts, he would be 15 years older than I am. Certainly, that honesty, truth and joy flows through him and he enjoys tremendous respect from a whole range of people. Many of the people at this conference are very successful in life by general standards, many of them doing different things. But one thing in common was, as I said, that solidarity and commitment to social justice. I say again, that I am proud to be counted amongst those people. It was a privilege to attend this conference to deliver a paper - that I might say was very well received – but, more importantly, to participate in such a lively forum that was full of stimulating ideas and issues.
Mr MALEY (Goyder): Mr Acting Deputy Speaker, I place on the Parliamentary Record an executive summary from my experience of the 48th Commonwealth Parliamentary Association Conference in Namibia, Africa, between 2 and 14 September this year.
In line with the first and last rule of speech making, as articulated by one of the African delegates, commonly referred as to the five b’s - that is: ‘Be brief brother, be brief’ - I propose to give a short outline of my activities at the CPA conference and have a number of papers which outline, in more detail, the issues referred to in this overview.
The conference was held in Namibia, a country of 1.8 million people located on the West African Coast. Namibia is a relatively young democracy, which only secured independence from South Africa a little over 10 years ago. Australia, surprisingly, does not have a diplomatic mission in the country. The official currency is the Namibian dollar; however, both the South African Rand and the US dollar are also readily accepted tender.
I was the sole representative from the Northern Territory. In the company of the Chief Minister of Norfolk Island, his Speaker and two other representatives from the Australian Capital Territory, represented Australia at the Small Countries Conference held at Swakopmund in Walvis Bay on Namibia’s Skeleton Coast.
I received many compliments from delegates regarding the high standard of the 47th CPA Conference that was held in Darwin the year before, in 2001. In fact, our Clerk, Ian McNeill, was regularly asked after. Many people were surprised that he was not attending the Small Countries Conference. In fact, one of the recommendations I can bring back to this parliament, is that we endeavour to make sure that our Clerk attends as many of these as possible. They have a separate group that meet – they all know each other and the Clerk is a regular. Parliamentarians, of course, turn over and it is a new group. However, the people who understand how it works and really facilitate the transfer of information, are that core groups
It was an honour and a privilege to represent both the Northern Territory and Australia, and I would personally like to thank the Speaker of the Assembly of the Northern Territory, Hon Loraine Braham, for inviting me to nominate to attend the conference, and the Chief Minister for endorsing and supporting my nomination.
As the sole delegate, I worked feverishly at the Small Countries Conference, and attended every plenary session and participated in the workshops. I did not go to all the workshops because, obviously, if they had three in the one afternoon, you just picked the one which interested you. I gave the presentation about the sustainable development of marine resources in small states, and was part of the group which assisted the Chair, Mr Mike Summers, of the Faukland Islands, and the rapporteur to prepare a report which was prepared for the main body. I have a copy of that report available, if anyone is interested.
In short, the report deals with issues such as 70% of the reefs world-wide are threatened and 88 of the 126 species of marine mammals are also under threat now, and now is the time to look closely at our activities in the oceans of the world, particularly the coastal regions. In the last 40 years, the demand for fish has been growing at twice the rate of the population growth, and it is estimated that there are 400 million fishermen in the world and over 500 million people in the world who depend on coral reefs for food and income. It is estimated that, to sustain this growth and maintain a sustainable harvest of our natural fish stocks, by the year 2030 aquaculture will exceed the yield of wild fish capture. Marine protected areas must be considered as a priority, and governments should be encouraging the investment of real capital in the development of aquaculture. It is not only the way of the future, it is our only option.
I also prepared a speech on the independence of the judiciary, which fell within the broad category of a workshop on Parliamentary Systems in Small States – What Works. The latter topic, at first glance, seems particularly dry. However, it generated a lively discussion and a heated debate. Australia, as a democracy, generally enjoys a good reputation. I navely thought that our system of democracy, whilst not perfect, was an outstanding example of how democracies should work. I was mistaken. After proper consideration of the topic, and listening carefully to several speeches from people from around the world who share our basic democratic process, I am firmly of the view that our parliamentary system in the Northern Territory is in need of constant review. Parliamentary democracy should create an environment where all parliamentarians, regardless of party, creed or race, have a genuine say on the future of the country or community, and there is no one size that fits all.
Some countries do not have a party system and, rather than a minister, a committee system exists to review, in some situations, and overturn the decisions of the chairman who acts as a minister for any given portfolio. There was a view that a party system does not necessarily place the best people in government. In the party system, it was generally agreed that the leader and the ministers have too much power. There was a feeling that cronyism exists, and that people were too often chosen as ministers based on whether the leader felt they would conform to the leader’s wishes, or had served longer periods of time in opposition, not necessarily because they were the best people. As an example, the fall of the Soekarno government; all the people who had been there in the past, irrespective of merit, suddenly became ministers. I suspect there is a huge amount of talent and experience in the backbenchers and overlooked because that is the system – and sayonara; that is how it works.
This is what people are saying all around the world - 160 countries, and this is the conclusion: backbenchers are all too often reluctant to speak up against the government or ministers as this may create the impression of party disunity, and that person then reduces their chance of becoming a minister or leader. What occurs is executive government, not parliamentary government, since the executive controls the purse strings and makes all the decisions. That was generally considered to be unhealthy. Indeed, in several small countries with small parliaments like the Northern Territory, every member of the governing party were made ministers. If you think about it, in one sense, it would not cost the taxpayer any more. I am not saying the member for Johnston - hypothetically speaking, if they made every member of the government a minister, you do not pay him any more. However, that person gets a portfolio and he gets some responsibility, rather than just being a number and a backbencher with no real say, and not part of the government - well, not really part of the corporate entity.
So, quite genuinely, there are lots of options which lots of people consider. Imagine a parliament where there are no parties. Everyone votes at the beginning as to who they think is going to be the minister, and then at the end of that, every bill gets argued and debated, and it is just amazing. Of course, the party system gives people, probably, a more informed choice as to which manifesto they are going to rely upon. But there is very little difference, in a lot of regards, when it comes to populist politics in Australia.
The backbenchers need to be given a louder voice in parliament. An opposition - they also went on to say – with nothing to do, no real way to effect change and no real way to help their constituents, is not part of the system that works. Accordingly, charged with this broader perspective, I am certainly going to suggest, by way of a motion eventually, that some sort of parliamentary reform agenda be considered for the good of all Territorians, and our democratic process. Matters that should be considered include: the numbers of ministers that the government utilises; increasing the number of days in which the Northern Territory parliament sits; and implementing more parliamentary controls on executive government. I am more than happy to provide more detailed information to interested members, and look forward to constructive input into this reform process.
The second week of the conference was held at Windhoek, the capital of Namibia, at the Safari Court Conference Room. The number of delegates swelled to 450 politicians, which included a large contingent of federal parliamentarians and representatives from each state in Australia. The issues which governed the conference were broad ranging and included anything from gender equality, globalisation, and the parliamentary dimension to human security. I have a folder full of reports. There are those who will, no doubt, catch up with me later on and discuss in detail, some of those important issues.
I have to admit that what is strange is that it seems that every parliament around the world just reinvents the wheel in a sense. They are the same issues, one-liners and problems, but the conference, for me, actually has reinvigorated my enthusiasm for the process, and I am really glad that I was given the opportunity to go. It broadened my mind to the role of backbenchers and the opposition. Our system of government - this particular model - is one of about seven different variations. However, the one we have is the limited number of ministers and they are the body corporate which, as a government, really have to massage the backbenchers. However, they are not relevant, and the opposition will try and keep them out of it as well. There are lots of other ways which are, surprisingly, a lot more inclusive.
On a personal note, in my view, political parties do play an important part in the process and allow the public to determine which manifesto can best serve them. The primary difficulty with small parliaments that do have a party basis in which all members are independents, is that you do not know precisely what any new government policy will be. Since the attainment of an executive position, we invariably depend upon some compromise. What they do, it seems., is if I am going to stand as one of the 25 independent members of this parliament, I would say: ‘Look, I want to be the Chief Minister’ and they each set out little manifestos, but I am not sure if that is as effective as having two or three parties in any event.
There is no doubt that we should continually try to find ways to reform and renew our parliamentary democracy. There is a political sea change occurring in the world driven, to a large degree, by my generation, it seems. Politics must be about policies not personalities, issues not sound bytes, substance and not spin. Journalists have an important part to play in ensuring they promote an informed debate in the wider community. The 48th Commonwealth Parliamentarians Conference has given me a renewed focus, and the investment in my electorate and the people of the Northern Territory have made in me is one that I will ensure delivers a sound return.
Ms LAWRIE (Karama): Mr Acting Deputy Speaker, this evening I continue on in a sense of a theme started by the member for Johnston, and that theme to me is remaining young through joy. I participated in a extremely joyous occasion during Seniors Month when, as the member for Karama, I funded and hosted a barbecue lunch for the Malak Thursday Group Seniors.
This is a group of fluctuating numbers, but around 30 women and a handful of men, who get together on a Thursday at the Malak Community Centre. I noticed that Seniors Month was coming up, so I made an application as a lot of people did, to try and achieve some funding for a function at the Malak Community Centre for the Malak seniors. However, that application was unsuccessful. So not to be daunted, I figured we would go ahead anyway and we would make a really joyous occasion for everyone.
So with the able assistance of my electorate officer, Sandi Oldroyd, organised the Malak seniors barbecue. Now the barbecue consisted of me trying out a new model of portable barbecue that I have purchased for my electorate, which I have also tested at various sausage sizzles. It is a little ripper, I have to say, and I commend a portable barbecue to members as a way of food for thought.
The barbecue lunch for the seniors consisted of a variety of foods - salads made up by people in the electorate that were donated as well, as sausages, satays, lamb chops. I have to say the lamb chops and satays seemed to be the favourites amongst the seniors that afternoon.
In wanting to make it a really quite special occasion, aside from the fact that they were being catered for the first time - as many of them said, they had been going there for many years and no one had ever put anything on like that for them. I have to say I was a little saddened by that but, at the same time, felt quite proud that finally a local member was paying them their due attention.
To add a special element to the celebration of Senior’s Month, and the role that these seniors have played in our society - I commend them for that role. The people I hosted the barbecue for have been Territorians for decades. They are so ardently proud of their Territory and, particularly, their home town of Darwin. The idea I hit upon was to invite the nearby school, Malak Primary School. I have had the pleasure of listening to their school choirs. They have three tremendous choirs at the school. I got on to the local principal, Helen Dunchue, who was a very approachable woman, and asked whether or not the school would be willing to have choirs attend the Malak seniors barbecue and perform for the seniors. Well, the school was fantastic, they said: ‘Of course, we would love to be there, not a problem’. We arranged for a time that was suitable for the school and the seniors, and I have to say that the performance by the Malak boys choir and seniors choir went down an absolute treat. You could have heard a pin drop in the room. The senior Territorians absolutely loved the performances. The boys were a really entertaining mixed bag. They included a haka for us, which blew away the seniors in the room. They had so much fun watching it and participating in it.
I extend my thanks, particularly and especially to Merilyn Krink, who is the coordinator of the Malak Seniors Group. Marilyn works tirelessly, week after week, putting on a lovely lunch for the seniors in the Malak area. Marilyn, I know you do not live in my electorate, so this is certainly not a bid to get your vote. I thank you very, very strongly for the many hours of work you put in to make every Thursday a lovely day for seniors in the area.
I express my congratulations for the fine performance by the Malak school seniors choir and the boys choir - they are fantastic. I went and saw the Malak seniors choir again at the Beat. I cannot get enough of that school choir; they are absolutely tremendous. I recommend to all members of the Assembly, really, looking at the opportunity to provide those linkages between the schools and their seniors, because when it happens it is a very, very joyous, special and memorable occasion. I also thank the choir mistress, Ms Liz Veel. She puts in a tremendous amount of effort on her students and that effort really shows up; they are two great performing choirs.
I also had the opportunity on that day to present a Lotteries Fund cheque to the Malak Seniors Group, which will provide them with an excursion to the Territory Wildlife Park. I have to say they are so looking forward to that excursion. They will be bussed out there. The cheque covers their entry fee into the park, some food and drink for the day. They are a very excited group of people, because they do not get the opportunity, on the pension - they cannot afford to go and travel around and have a real ripper of a day out. So, everyone was looking very much forward with anticipation to that excursion.
Every chance we get, we really ought to take the opportunity to make a special effort to thank our senior Territorians. They have put in, over the decades, substantially to our community. They are tremendous people. The sense of humour in that room just kept me going for days. I still have a little giggle when I think of the conversations that were had, and the witticisms that were flying around the room, the memories that they shared, the jibes that they give each other in good nature. We could all learn a lot from the humility, the humour and the wisdom of our seniors.
I have to say, something that I felt particularly pleased about was, whilst some of the boys in the Malak area have a bad reputation amongst the residents because they are ratbags, that particular interaction that day changed attitudes. The kids those seniors would normally have looked upon with a little touch of disdain, due to their sometimes ratbaggish behaviour - they saw the boys choir perform and the seniors were absolutely thrilled. If, in some way, I have helped to weave a fabric of community in Malak through the seniors barbecue, then I feel particularly proud to be given the opportunity as the local member to do that. I have to say that I promised the seniors there will be a repeat performance, an annual event. We will be back there, having another barbecue and some more fun next year. Mind you, they put in the bid that they wanted it once a month. I said I could not afford it, but it will definitely be an annual event.
Mr ELFERINK (Macdonnell): Mr Acting Deputy Speaker, tonight I talk about the lead story in the Centralian Advocate, dated today, of course, Tuesday, 8 October. I am somewhat disturbed by the contents of the story. The headline on the story is: ‘Magistrate sends man to be bashed’. There is nothing particularly new in the process that Magistrate Ward has engaged in, in recognising the system that he is applying to his bail decision. However, I am somewhat concerned about some of the implications in relation to this process.
This being a bail application, of course, means that the person concerned who received bail, has not been found guilty of anything at all. Therefore, this person who has received bail has been sent off to receive a form of punishment under another cultural system. That leaves me with some strange questions.
I have checked the Bail Act. I certainly was not present during the bail application on behalf of the defendant, and I am not sure of all the details that were taken into consideration, so I am going largely off the news report - in fact, entirely off the news report in the Centralian Advocate. However, it does raise some concerns, because, as I understand the operation of the Bail Act, the presumption for bail for somebody charged with murder is, indeed, reversed - which means that it is up to the person applying for bail to apply to the court for grounds, to the balance of probability, to receive bail. It is not impossible to get bail for murder, and it is contemplated by the act, but the parliament has been quite clear in its intent, by reversing the presumption of bail when that particular charge is involved.
I am fully aware that the magistrate is allowed to take in any information, including hearsay evidence, in making a consideration of bail. However, the criteria of the Bail Act is quite specific. I go to section 24(1) of the Bail Act:
Nothing in there suggests that this person, or a person, can be bailed to go and receive punishment. I am somewhat concerned that perhaps some aspects of the Bail Act have been ignored in this instance, because in section 24(1)(b), it refers to the interests of the person having regard only to, and I go to:
Even if the person who is being bailed on this occasion is at liberty to acquiesce to this form of punishment that they are going to be subjected to, I am curious as to what would happen if that person should die as a result of the punishment that they are going to receive. Indeed, it is contemplated that this person will be stabbed in the thigh. I am deeply concerned that people who are stabbed in the thigh, from time to time, do actually die as a result of that injury. Usually, it is a result of the femoral artery being severed. I have experience of dealing with people who have been killed in this fashion, so I know it is a very real risk.
As I understand, it the process is going to take place at Nyirripi and I am concerned what position that may place the police officers there. I turn to the article from today where Mr Ward took into consideration that, at the payback ceremony, as he refers to it, the police would be present and not intervene. It is a requirement under the Criminal Code of the Northern Territory that, should a person see another person in danger and then fail to rescue them, then they are committing an offence. If that person is in very real danger then I am concerned at what position that may place the police officers in, when they have a duty to protect the laws of the Northern Territory.
Mr Ward relies on the fact that this has been done before and, indeed, I am aware of instances where punishment has been taken into account in terms of sentencing. I am not so sure in terms of bail, but I will take his word for it that it has been done for bail before. I am not entirely sure what this says for the judicial process in terms of whether this person is considered to be guilty or not. Certainly, under the European system of law, or the Westminster system of law, this person is not guilty until such time as the contrary is proved. The contrary, at this point, has not been proved and it concerns me that we are condoning something which is preempting a finding of guilty.
I am also concerned about the position that the magistrate might find themselves in if this person should die. This is not specific to this person and this instance but, more generally, I make the comment that I am very concerned that, where you have situations where these people are sent by the courts for these forms of punishment, they are put at risk. I am just wondering what damage would occur to the integrity of the court if a person should die as a result of this.
Probably the most contentious thing I have to say tonight is that I do pick up on a quote from His Worship in the paper today where he says:
I find that a contentious comment. We have a legal system in this country which has to accommodate any number of cultures. Indeed, in the Northern Territory alone, in terms of indigenous people, there are over 40 or 50 cultures represented. Then, of course, from migrant populations like myself, as well as other populations in this Territory, there are other cultures represented as well. We have different religions, we have different creeds, but all of those cultural groups are subject to the law of the Northern Territory, and the utmost respect should be placed on the laws of the Northern Territory which has been presented to the people through a democratically elected parliament.
I just hope that this does not go awry. However, it brings to our attention the nature of the difference in the use of cultural forms of punishment, when it is inconsistent with the expectations and beliefs of our own legal system. It is high time, if we are going to start seeing a Bench which is going to start relying on these processes, that this system be investigated thoroughly and completely. If we are going to have a Bench which is going to make these decisions, then they should be armed not with a simple bail application in the history of the fact that it has been done before, but a fully investigated, fully worked out, fully thrashed out system which can accommodate the laws of the Northern Territory which, in this instance, are supreme.
I urge the government to pay attention to this issue, and to start to formulate a process by which these issues can be investigated, because I am deeply concerned that, if a person in the situation as the particular defendant is in this situation, dies as a result of a decision handed down from the Bench, it will do a lot to harm the integrity of the court and may expose people who are at the place where the punishment is dished out, to further criminal charges. It is an absolute minefield and, if the courts are going to do this, then they should do it with full knowledge and full understanding of what they are getting into.
Motion agreed to; the Assembly adjourned.
MESSAGE FROM ADMINISTRATOR
Madam SPEAKER: Honourable members, I lay on the table Message No 9 from His Honour the Administrator advising of his consent to the proposed laws passed by the Assembly during the August sittings.
PETITIONS
Humpty Doo Rubbish Dump
Humpty Doo Rubbish Dump
Mr MALEY (Goyder)(by leave): Madam Speaker, I present a petition not conforming with standing orders from 29 petitioners relating to the Humpty Doo rubbish dump.
Genetically Modified Free Produce
in Northern Territory
in Northern Territory
Mr MALEY (Goyder): Madam Speaker, I present a petition from 335 petitioners praying that members allow a genetically modified free Northern Territory. The petition bears the Clerk’s certificate that it conforms with requirements of standing orders.
Reinstatement of 24-hour Medical Service
for Palmerston and Rural Area
for Palmerston and Rural Area
Mr MALEY (Goyder): Madam Speaker, I present a petition from 1321 petitioners praying that a 24-hour medical assessment service be reinstated and a 24-hour chemist facility established for the Palmerston and rural area. The petition bears the Clerk’s certificate that it conforms with the requirements of standing orders.
I do not propose that the petition be read. It is in similar terms to a petition presented in the September sittings.
STATEMENT BY SPEAKER
Death of Dianna Mary Harris
Death of Dianna Mary Harris
Madam SPEAKER: Honourable members, it is with deep regret that I advise you of the death on 26 September of Dianna Mary Harris. Dianna was an officer of the Legislative Assembly from 1989 until her passing. She commenced as a personal secretary to the former Clerk, Mr Guy Smith, and was then personal assistant to the present Clerk, Ian McNeill. Later, Dianna transferred to the secretariat of the Legal and Constitutional Affairs Committee as administrative and research officer and, during the last few years, she has worked in the education and information unit.
Honourable members would be aware that a memorial service was held on Monday, 30 September. Former and present members who contributed to this service included Mick Palmer, Barry Coulter, Syd Stirling, Terry McCarthy and Phil Mitchell. At the service for Dianna last week, the Clerk reflected on Dianna’s career with the Legislative Assembly.
She commenced, as I said previously, as the personal assistant to the previous Clerk and established a very highly successful, close, and professional working relationship. With Guy Smith’s unexpected retirement due to ill health and the succession of Ian McNeill to the position of Acting Clerk, it was Dianna who encouraged, advised and counselled him in those days. The Clerk concluded that they managed to meet the challenges of those early months, largely due to Dianna’s guidance and accumulated wisdom. In that role, and in other positions Dianna held in the department in the committee secretariat and the Parliamentary Education Information Unit, the most significant attribute that she possessed was as an expert in English usage and as a skilled and creative writer. Her knowledge of grammar and construction was without peer in the department. The quality of her written work is evidenced in a number of areas: both in committee report writing, in the production of educational resource materials and, also, in speech notes she produced over a number of years for speakers and delegates for presentation at conferences and significant commemorative events.
Dianna expressed an ambition to extend her work experience beyond a secretarial and personal assistant role; in 1998 she transferred to the committee secretariat where she worked as an administrative and research officer to the Legal and Constitutional Affairs Committee. It was in that role that she played a significant part in the production of the 1999 report of the Legal and Constitutional Affairs Committee into Appropriate Measures to Facilitate Statehood. Dianna’s valued contribution was acknowledged by all committee members at the presentation of the report, which has become accepted as a major reference for future directions in achieving statehood.
Later in her career, in the Parliamentary Education Information Unit, her talents as a writer were again to come to the fore in the production of a number of reference and resource materials currently being included in the Northern Territory curriculum framework.
As well as these attributes in her recent role in the education information unit and dealing with students, trainees and apprentices, Dianna demonstrated a gift as a skilled mentor and teacher. One of the sorrows of her passing is that some of the ambitious in this area have not yet been fulfilled. However, the products of her professionalism and skill will be a lasting tribute to Dianna’s memory.
On behalf of the members and officers of the Legislative Assembly, I tender a profound sympathy to Dianna’s children, Bridie and Simon, and grandchild Jordan. I ask honourable members to stand in silence for one minute as a mark of respect.
Members rose and observed one minute’s silence.
CONDOLENCE MOTION
Mr Horace Guy Smith and Mrs Jan Smith
Mr Horace Guy Smith and Mrs Jan Smith
Madam SPEAKER: Honourable members, it has, indeed, been a rather sad two weeks for the Legislative Assembly. It is also with regret that I advise honourable members of the death on 4 October of Horace Guy Smith, former Clerk of the Legislative Assembly and Officer of the Australian Senate, and his wife, Mrs Jan Smith.
On completion of debate, I will ask honourable members to stand in silence for one minute as a mark of respect.
Ms MARTIN (Chief Minister)(by leave): Madam Speaker, I move that this Assembly express its deep regret at the death of Horace Guy Smith and Mrs Jan Smith on 4 October 2002; tender its profound sympathy to their families; and place on record its appreciation of Mr Smith’s meritorious and dedicated service as an Officer of the Australian Senate and as Clerk of the Legislative Assembly.
It is my sad duty to speak today to this condolence motion for Guy Smith, long time Clerk of the Legislative Assembly and a former Usher of the Black Rod in the Australian Senate, who passed away at his home in Queensland on Friday 4 October 2002.
I knew the former Clerk only by reputation but my colleague, Deputy Chief Minister, Syd Stirling, will speak shortly from personal experience about Guy Smith on behalf of government. Mr Smith was well respected in Canberra as well as in Darwin and the Territory and we were very privileged to have had such a distinguished Commonwealth employee as our Legislative Assembly Clerk.
Adding his Commonwealth and Territory employment, Mr Smith chalked up 36 years of parliamentary service. He arrived in the Territory in 1983 after 25 years in the Senate including service as Usher of the Black Rod, Principle Parliamentary Officer and Clerk Assistant to Committees. Mr Smith’s moment in the national spotlight occurred during the dismissal of the Whitlam government on 11 November 1975. Many of the pictures of the time showing David Smith, the Governor-General’s private secretary reading out the proclamation dissolving parliament, show Mr Smith standing close by. Some of the photos of Gough Whitlam’s subsequent speech on the steps of the National Parliament also show Mr Smith in attendance. As Usher of the Black Rod it was his responsibility to ensure the security of the Senate. This was quite a challenge on that particular day as crowds of protestors and onlookers mobbed Canberra’s Parliament House.
Mr Smith moved to Darwin in 1983 as Clerk of the Legislative Assembly when we were still in the early stages of self-government. He was responsible for many important reforms including changes to the standing orders, parliamentary privilege rules and the parliamentary committee system. Guy Smith retired in 1994, and he and his wife, Jan, moved to Queensland. Friends of the family have been sorry to hear that both of the Smiths died in Queensland last week.
On behalf of the government, I would like to offer my condolences to relations and friends of the Smith family, particularly Guy and Jan’s son and three daughters.
Mr REED (Katherine): Madam Speaker, the member for Nhulunbuy and I are the only two members in the House today who would have worked with the former Clerk, Guy Smith, and it was a privilege indeed to have known him. Indeed, from this Assembly’s point of view, we should be very proud of the fact that the Assembly was able to attract a person with the experience, knowledge and understanding that Guy Smith had, that he brought with him to this Assembly from the Australian Senate.
The picture should be put on the record, too, that as Clerk of the Legislative Assembly he did not have the services and facilities that we have available to us today in both the building and the amenities that are available to us. Whilst the Assembly of his day was on this site, it was a much different facility. To demonstrate that I recall that when I was first elected in early March 1987 the first sittings were in late March/early April, as I recall, and was sitting in the building, which I think was at one stage of its prior life a car sales display building. There was all sorts of thunder and lightening crashing around the area and the attendant, Tony, who is now the maintenance officer in this building, entered the Chamber with a whole pile of green plastic buckets. He sat one on my desk. He lined it up with the ceiling and set the bucket there and I thought that was a bit unusual. The Clerk, Guy Smith, had the habit from time to time of sending the odd note. I received one on that occasion. I do not recall the precise words but it made some reference to the fact that he did not consider that I had some illness about to beset me, but it would soon start to rain - very heavily, obviously, with this big storm approaching - and the roof leaks, hence the bucket on your desk. There were other buckets placed strategically around the Chamber and Tony adequately judged precisely where they should be placed. When the storm did hit, it was not just the odd drop into some of the buckets, it was indeed quite a forceful stream of water that poured through the ceiling. On that occasion, a couple of the buckets had to be replaced because they filled up.
When you consider the changed circumstances in relation to the conditions under which Mr Smith worked in Canberra and those in which he found himself when he came to the Northern Territory, it was quite amazing in terms of the position that he held and, of course, the conduct of the parliament. The buildings were very old. He had an office that was along Mitchell Street before it was closed off, and just to the right of Parliament House, looking at the building. There was an array of other buildings, demountables, at the back of the Chamber that we used for various purposes, for offices and a tea room and the like. They were very different conditions that he had to endure here, but it did not detract one bit from the quality of the service that he provided as Clerk of the Assembly. I recall very clearly the support, guidance and assistance that he provided to new members. During the remaining years of his service as Clerk of the Assembly, he was always very supportive, always prepared to help and had all that wonderful knowledge to draw on.
The Chief Minister has made reference to the fact that he was a player, as Usher of the Black Rod, in probably one of the most turbulent times of federal politics in this country with the dismissal of a Prime Minister; historic, certainly, in those terms. His part in that enriched his level of experience and the difficulties that he would have had to face at that time. He never talked much about it, to me, anyway. He was a man who understood and revered the practices of his position in terms of the confidentiality of the work that he undertook and that in itself says a lot for Guy Smith as our Clerk and the services that he provided to us.
Our current Clerk, Mr McNeill, was his understudy and he was fortunate, if I might say, to have been able to have had such a teacher, such a mentor, and someone able to pass on to him the many facets of being a Clerk of a parliament. Again, in one way or another, perhaps the experience that Mr Smith brought to this Assembly lives on to some extent with the knowledge that he was able to pass on to the current Clerk.
It is a sad day to recognise the passing of Mr Smith and his wife, and ironically, within a very short space of time, a week or so, also the passing of Dianna Harris, the former Personal Secretary to Mr Smith. It is quite an unusual situation that they both should pass away at such a similar interval in time, and one that it does not hurt to reflect on in regards to the services that both those people gave to the Assembly.
It is rather unorthodox, Madam Speaker, but we have been known to be unorthodox in this House before in allowing different processes to be undertaken. Whether he wants to or not, it might be nice to extend the opportunity to Clerk McNeill for him to express some views in relation to Mr Smith and an opportunity for him to place on the Parliamentary Record, as unusual as that would be for the Clerk – it is entirely up to him - and with the leave of the House to take this opportunity to pay respects to the former Clerk.
Mr STIRLING (Leader of Government Business): Madam Speaker, I thank you for your testimony to Ms Dianna Harris who equally served this parliament very well. There is a sad irony in the fact that Dianna, Guy and his wife, Jan, being such close friends as they were, were all to pass away within the space of a week. In relation to the member for Katherine’s suggestion, that has my wholehearted support for the Clerk. I did feel that he would like to contribute to this condolence motion.
I first met Guy prior to the last sittings in 1990, having been elected in the October 1990 election. I came in for an induction process for new members followed by, I remember, a rather delightful lunch. I remember Guy attempting to explain parliament during the induction procedure as, ‘just like a big meeting, albeit with its own rules’ – rules that some 12 years later I still struggle to get across from time to time. In those days we were in the Chan Building across the road, and Guy controlled the Chamber with Speaker Dondas, always with an element of humour in the recommendations and advice that he gave to Speaker Dondas who equally, I think, utilised humour to good effect from the Chair. He equally controlled the rear corridors of the Chan Building, particularly on the opposition side of the building, because they led to the glass doors which led to the balcony outside where members would adjourn for a quiet smoke from time to time.
I remember, on many occasions, the former member for Arnhem, Wes Lanhupuy, Guy and I outside the back of the Chan Building having a quiet smoke and Guy, when relaxed, and he most often was – in fact, I do not recall him ever not being relaxed in his position – loved to tell tales of the days in the Senate and often with quite intricate details leading up to the punch line, but invariably with a sting in the tail, and if you listened closely, somewhat of a moral message in relaying perhaps, to a new and inexperienced member, of things not to do. I always felt very privileged to share those inside-type stories.
His knowledge of parliamentary procedure and standing orders was not just beyond reproach. It was not the technical mastery of the profession, and it was even more than a deep respect for the Westminster system of parliamentary democracy. I think it transcended – it was a profound love of the entire system. In the mid-1980s we know he rewrote entirely the Standing Orders pertaining to this Assembly, and he built the committee system, in its infancy in those days, into what we have today.
While the Northern Territory was indeed privileged to have someone of his expertise, experience and wisdom serve in this Chamber and serve the people of the Northern Territory through his position for a period of 11 years, it was also equally great for Guy. He was in a Senate that had its systems locked down, rock solid. Here he could move, he could advance and put into practice some of the things that he saw from the Senate, some of the sound practices that have served us and continue to serve us to this day. He was able to, in a sense, grow the Northern Territory system on the back of his experience.
I also worked with Guy between 1991 and 1994 as an opposition member on the New Parliament House Committee. He devoted a great deal of time to that, along with Speaker Dondas. He gave very close attention particularly to those aspects of the building relating to the Chamber and to the parliamentary aspects itself. As a small Assembly, as fortunate as we were to have had his services, I think it was good for Guy as well. By bringing our own Clerk, Mr McNeill, to the Northern Territory in 1985, having worked together in the Senate, his legacy has been much with us even after his retirement in 1994. Ian would be the first to admit a debt to Guy, who was his mentor in what we as outsiders would see as the somewhat closed and hallowed ranks of parliamentary Clerks in the Australian system. The Assembly owes much to his efforts.
On behalf of all who worked with and knew Guy and Jan, I express condolences on their behalf to Guy and Jan’s son and three daughters for the sudden loss of both parents almost at the same time.
Madam SPEAKER: Honourable members, we did discuss with the Clerk earlier whether he would like to speak or not. He tells me the only time Clerks are usually invited to speak in Assemblies is when they resign. I certainly do not want to encourage that. But I will ask the Clerk and give him the opportunity if he would like to make some comments.
The CLERK: Thank you, Madam Speaker and members. First, I would like to express my thanks for the kind words that have been spoken on behalf of Guy today. I want to record, on behalf of Guy’s colleagues and former colleagues, the high regard with which Guy was held by his Clerkly colleagues in Australian and overseas parliaments.
His professionalism and his significant contribution to the development of our practices, procedures and administration in this Assembly and its committees, I think, helped this Assembly achieve a parity of esteem with other Australian state and territory parliaments in a very short time after the Territory achieved self-government.
This building is a testament to his capacity in his role in the planning, design, construction and now, the functioning, of a Parliament House for the Northern Territory.
He was generous in sharing his extensive knowledge in parliamentary matters. He was an excellent mentor, and a good friend to all who worked with him. Guy and Jan will be sadly missed but their contribution to the Northern Territory and, in particular, to this parliament will be a lasting tribute to their memory.
Madam SPEAKER: Before I ask you to rise as a mark of respect, I would like to record the request from a number of former members and officers of the Legislative Assembly to be associated with this motion of condolence. If you will bear with me, these included former Speakers with whom Guy served: Nick Dondas, Roger Steele and Terry McCarthy. Former members who have requested to be associated with the motion include: Peter Adamson, John Bailey, Neil Bell, Gary Cartwright, Barry Coulter, June D’Rozario, Bob Collins, Brian Ede, Paul Everingham, Fred Finch, Tom Harris, Steve Hatton, Maggie Hickey, Bern Kilgariff, Danny Leo, Daryl Manzie, Noel Padgham, Mick Palmer, Eric Poole, Jim Robertson, Rick Setter, Terry Smith, Shane Stone, Marshall Perron, Grant Tambling, Ian Tuxworth; and former Clerk, Ray Chin; and former parliamentary officers, Paul Stewart and Felicity Middleton.
It is a mark of respect that so many people have been in touch with the Clerk to record their condolences on this significant occasion.
I advise the Clerk will represent the Assembly at the funeral service to be conducted later this week in Queensland for Guy and Jan, and he will deliver the eulogy on our behalf at that service.
I now call on members to observe one minute silence as a mark of respect.
Members rose and observed one minute’s silence.
Madam SPEAKER: I thank honourable members.
MINISTERIAL REPORTS
Office of Territory Development
Office of Territory Development
Ms MARTIN (Chief Minister): Madam Speaker, I rise to make a report to inform honourable members of some of the work that my Office of Territory Development has undertaken recently in relation to investment attraction activities associated with the development of the AustralAsia trade route, and the establishment of new value-added industries in Darwin.
As I am sure all members are aware, it is my government’s vision to establish the Territory as Australia’s Asian gateway for international trade between Australia and Asia. It is clearly articulated within my government’s policy blueprint for social and economic development, Building a Better Territory, just how this vision will be realised. Indeed, it is clearly articulated exactly what strategic approach and priority actions will be pursued.
For the benefit of all honourable members, I will quickly reiterate those strategic approaches and priority actions. The strategic approaches are: to develop international trade by building Territory trade capability; developing market awareness and overseas markets; expanding the AustralAsia trade route and capitalising on Territory links and services; maximising value adding and other opportunities from land, sea and air infrastructure; and to develop efficient inter-model linkages to maximise economic development opportunities associated with Darwin’s role as Australia’s Asian gateway.
The priority actions are:
during 2002-03, work with the rail consortium and its potential customers to develop
international trade through the port of Darwin to achieve a target of 50 000 containers
per annum by the end of 2007;
by July 2002, in conjunction with the rail consortium, interview 100 Australian and Asian
companies that could potentially send their products via Darwin;
during this financial year, help targetted companies establish value adding operations in the
Territory so that by 2007 up to 30% of products land bridged via Darwin, are subject to value
adding activity within the Territory;
complete the AustralAsia Railway and East Arm Port integrated transport project by January 2004;
provide land at East Arm Peninsula to establish an inter-model freight terminal and supporting
facilities to increase the level of value adding logistics processes;
establish the Darwin Port Corporation as a government owned corporation by January next year;
and
directly promote the benefits of the AustralAsia trade route to the head offices of leading international
shipping companies by 2003.
Work on these priority actions is well advanced and, in some cases, completed. However, this ministerial report will concentrate on the most recent endeavours of my staff in the Office of Territory Development to fulfil` my government’s goals and objectives. In June 2002, my staff participated, in partnership with the Darwin Port Corporation and FreightLink, in the Supply Chain Asia Pacific Summit in Perth. The summit offered access to over 70 major international companies from a broad cross-section of Australian industry including the automotive, food, dairy and computer manufacturing sectors, with significant domestic and international market destinations in the Asia Pacific region.
The joint Northern Territory FreightLink delegation that participated in the summit provided a wide transport and logistics focus and was able to engage other participants and advise them of the current state of play with the port and rail project developments and capabilities. The team conducted 22 face-to-face meetings during the course of the summit. The information gained and relationships established with senior executives encouraged further dialogue beyond the summit. In particular, strong relationships were established with the automotive industry such as Mitsubishi Motors, Nissan, Tenneco Automotive and South Pacific Tyres, and also with food manufacturing companies such as Nestl Australia, National Foods and Simplot.
Other opportunities also eventuated, such as with Darrel Claasz, who is with ING Australia Ltd, and is the Chairman of the New South Wales Institute of Purchasing. He extended an invitation to the Territory government and the FreightLink team to address its members in the development of the AustralAsian trade route at one of its regular monthly meetings. Scott Laden of Hewlett-Packard was yet another example. Australia’s Asian gateway team discussed his company’s activities and, in particular, its land bridging operations via the Port of Fremantle.
The ultimate benefit of the summit was the access to a broad range of empowered decision-making from some of Australia’s most significant companies. These companies willingly gave information of their existing operations and future strategic directions. The opportunity to promulgate the AustralAsia Railway and the positioning of Darwin as Australia’s Asian gateway was widely accepted as a real opportunity for those with markets in Asia or, indeed, with future aspirations of obtaining or increasing their markets in Asia.
This report confirms my government’s commitment to maximising the opportunities for the Territory from the development of the AustralAsia trade route.
Mr BURKE (Opposition Leader): Madam Speaker, I note the report from the Chief Minister with regards to initiatives by government to develop the AustralAsia trade route with the lofty ideal of having 50 000 containers across the Darwin Port by 2007. Certainly, that is a focus I hope the government achieves.
I have to say to you that, based on what I have heard the Chief Minister say, there have been a number of meetings but not one outcome. Some of the things with regards to the development of the port have all been put in train. I wonder, Chief Minister, who is actually driving this? Is this being driven by public servants from the Office of Territory Development? If that is the case, they want to move faster than they have moved so far, because it took six months to find an office, and it has taken 12 months to finally arrive at a CEO, and I applaud the appointment of the CEO.
The development of the AustralAsian trade route requires a minister focussed on that task. It is not good enough to come to this Chamber and talk about what public servants are doing, what meetings they are attending, what links they are trying to establish, what relationships are starting to be built. What I would like to know is: which minister is in charge of it, which minister is driving it, what are the minister’s priorities, and how the minister intends to achieve those priorities to at least get one additional container across this port by 2007, if not before.
So, I look forward to hearing further details. It is a subject, as I have mentioned before, of a full ministerial statement so it gets appropriate debate. You and I know, Chief Minister, that the priority of the railway group at the moment is to establish their own tonnages in achieving freight within Australia from the southern ports into the Northern Territory, and from the Northern Territory to the southern states. That is their priority. What it requires government to do, driven firmly by a minister, is to start moving this AustralAsian trade route along in advance of the efforts of, but also in cooperation with, those railway constructors and freight forwarders.
Whilst I welcome the statement, it contained nothing new, nothing of substance. I look forward to something of substance being brought into the Chamber.
Ms MARTIN (Chief Minister): What an extraordinary response from the Leader of the Opposition …
Mr Henderson: Churlish.
Ms MARTIN: Churlish, negative - absolutely churlish and negative. An extraordinary response to what is a great Territory project. If the Opposition Leader - in his role of being interested in the railway and the port development and the land bridging opportunities - had sought a briefing, he would understand that the driver here is FreightLink, not only for freight to the port of Darwin, but also the land bridging to Asia. We are working in conjunction, as I said quite clearly in my report, with the Office of Territory Development and FreightLink to achieve these important developments for the Territory.
To hear the Opposition Leader come here and bag both FreightLink and OTD and make pathetic and superficial comments, is more an indictment on him than FreightLink, OTD or this government. It is very sad to hear.
Future Direction of Secondary Education
Mr STIRLING (Employment, Education and Training): Madam Speaker, I take this opportunity to report to parliament on the government’s plans to develop the future directions of secondary education in the Northern Territory government schools.
On Wednesday, 25 September, the Chief Minister and myself announced the commissioning of a comprehensive report into secondary education, commencing January 2003. The report is expected to be delivered in September 2003, with the ability for government to implement those recommendations it can at the commencement of the 2004 school year.
It is the first time in 10 years that secondary education has been reviewed, and we see the report as crucial to ensuring Territory students are receiving education that meets the challenges and opportunities of a rapidly changing and technologically advanced world. The report will consider all aspects of secondary education provision in urban, rural and remote government secondary schools throughout the Territory. It will examine the impact of information technology, vocational education and training options, broadening education and career options, retention rates, access to secondary education in remote communities, and the impact of national developments in education.
We need to ensure the changing needs of students are being met by making sure a wide range of education and vocational options are available to them, and we need to build real pathways from school to training to skilled employment.
A highly qualified external consultant will be contracted through an open tender process to conduct the review. There will be wide consultation with all stakeholder groups throughout the Territory and we will seek input from the non-government sector. Education is of the highest priority for this government, and the government has commissioned the report to ensure that Territory students receive an education comparable to or better than that available in the rest of Australia.
Mr MILLS (Blain): At the outset, Madam Speaker, I welcome the scope of this review. Secondary education, particularly, will benefit from a review of this nature. I am, though, concerned about the volume of reviews that are currently on foot, particularly when we have school-based constable review process apparently concluded with no outcome. Also the SHAPES, Sport Health and Physical Education, review has been on foot and closed since April. There has been no result to that. In acknowledging that this review, though welcome, does not actually come into effect until 2004, it creates an atmosphere where there is a sense of activity and decision-making when, in fact, it is prolonging a process, perhaps unnecessarily.
I also draw attention to setting off on a course like this when we have such a plethora of reviews, that expectations are raised significantly. I am expressing my concern that we are able to manage this process right through to the very end and make an actual difference to the education outcomes for secondary students.
Mr STIRLING (Employment, Education and Training): I will clarify a couple of points. I thank the member for his general supportive comments. The review process will commence in January 2003 and report back to government by September next year. That will give government the ability to implement those recommendations that it can, in the first instance for school year commencing 2004. There has to be a process of time. It is a bit cute to compare it to something such as the school-based constable review, that is quite small fry compared to this. This is a very major review - all aspects of secondary education on the table. Advertisements will go out very soon so that the selection process has time, and we would expect to be up and running in January 2003.
In relation to other reviews going on inside the department, as a minister and wanting to make decisions on a whole range of matters in these areas, I want the information before me. If it is necessary to have a review to get that information, I will continue to conduct them.
Arafura Sports and Community Club Inc
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I would like to place on record the action this government has taken on the Arafura Sports and Community Club. Far from acting in haste and without due diligence, as the Leader of the Opposition has claimed, this government responded to concerns raised by club officials and creditors earlier this year.
At that time, the Registrar of Associations, with the club’s concurrence, took action to appoint Ernst & Young to thoroughly investigate the club’s financial position. Ernst & Young advised the government that the club had been operating under heavy debt and interest commitments. Club creditors included: superannuation and wages entitlements of staff - $50 000; unsecured members’ loans - $25 000; loans from other sporting bodies, including the Disabled Sports Association and the Darwin Football Club - $65 000; a secured members’ loan - $234 000; and other creditors, including tradesmen - $154 000. The position of the club was eroded in April 2001 when it committed to around $160 000 in building and improvement work, apparently in the belief that the former government would provide financial assistance.
During Ernst & Young’s investigation, when it became apparent the club was at risk of trading insolvent, we appointed judicial managers, reducing potential legal exposure to the current office bearers. Ernst & Young managed the club until the end of September to maximise its financial position through the traditionally higher trading levels over the dry. By the end of August, the club was no longer trading profitably and its position was unsustainable. The judicial manager was obliged, in this situation, to move to have the club wound up.
The Arafura Sports Club has operated for more than 40 years in the Darwin community, providing facilities for the community and members alike. The demise of the club was a sad event for members and the wider community, and I can understand the disappointment, especially of long-term members and bowlers. However, unlike the CLP’s approach to these things, this government took a very responsible action through the appointment of a judicial manager. Without the intervention of government, the club would have been wound up by its creditors earlier this year, with a liquidator supplier selling assets and receiving first call on funds raised. The committee would have received no protection from trading insolvent and exposure to personal liability for the club debts. Bowlers would not have had the use of the greens for the past six months over the peak bowling season, the creditors would not have been paid out in full, and the interests of creditors like the Disabled Sports Association, club members and the entitlements of staff, would not have been protected.
When it was clear that the Supreme Court would order the winding up of the club, the government decided to purchase its land at fair value, as determined by the Australian Valuation Office, at $550 000 under the current zoning provisions. Far from profiteering, the government has moved to protect a community asset which was sold by the previous government to the club at the concessional price of $85 000 in 1996. The government has not yet made a decision about what we will do with the land; there are many different options. However, when we do, that decision will be a responsible one guided by the best interest of Territorians and any profit made will go back into bowling and to other community purposes.
In summary, this government has acted responsibly and has worked with the club for much of this year. The action which we have taken has ensured that all creditors can be paid out, and an asset which was sold to the club at a concessional price has been protected on behalf of the Territory taxpayers.
Mr BURKE (Opposition Leader): Madam Speaker, as the Minister for Justice and Attorney-General said, unlike the CLP government, the Labor government purchased a $1.4m windfall property gain for the cost of $550 000 and, in doing so, destroyed the ambitions and amenities of Territorians who had survived Cyclone Tracy but could not survive a Labor government when they had to make a decision with regards to the sports club. The degree of concern of those people is apparent to us and will be apparent, I imagine - I heard on the radio today that some of them intend coming to this Chamber.
I advise the Justice minister that the opposition is in possession of tapes of conversations that were held by the Chief Minister, by staff of the Chief Minister. We have the Auditor-General’s report, and we have our own avenues to investigate the basis of the government’s actions. I can tell you, in essence it is this: that the immediate liabilities of that club were as little as around $200 000 and, for as little of around $200 000, the government was not even prepared to stand as a second mortgagee, was not even prepared to do for that club what it itself will do now - now it has purchased the land - in bringing up the equity that that club had itself in the amenities - as little as the units that are there.
So it is a sorry saga, frankly. The people involved in that club want to know: are they going to bowl at that club in the future? That is a pretty simple answer that might be able to be provided by government. Will they be able to bowl at that club in the future, because the Chief Minister is on the record of giving them those promises. A day after attending the meeting with the club, they were informed by officers of her department that the caretaker of those greens would be sacked within days of the government finally deciding what to do. We have the sorry saga of three ministers - including the Chief Minister - making contradictory statements with regards to the actions of government and the future of that club. Those things will be interrogated in detail. The government has not conducted due diligence on this club, has acted hastily and irresponsibly …
Madam SPEAKER: Order! Your time has expired, Leader of the Opposition.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I would certainly like to see the Leader of the Opposition take a bit less overtime on each of his answers.
If you want to have a close look, and continue to have a close look at our decision - we are very pleased about our decision and we are very comfortable with it.
Mr Burke: We have had a close look.
Dr TOYNE: I can guarantee to you, if you want to play with this any more, some of the stuff that will come out will not suit you at all.
Information and Communications
Technology Forum
Technology Forum
Mr HENDERSON (Business, Industry and Resource Development): Madam Speaker, I rise to brief members on the outcome of the Information and Communications Technology Forum held in Darwin on 3 and 4 September this year, and on initiatives which have commenced since, as a result of the very successful forum.
The forum was a significant moment in the history of ICT in the Territory, being the first time that the ICT business community had come together with government to plan the future of their industry. At the outset, I must thank all the people who contributed so much to the success of this forum, both from the private and public sectors. It was a real team effort and I know that my colleague, the member for Stuart, played a significant role in shaping the forum, and was very disappointed not to have been able to participate in the event itself due to a significant family illness.
There are four key themes that have come out of the forum. From a technical point of view the clear message from the meeting is that ICT is an enabling industry but that it is the development of useful applications and content that will drive the growth of ICT to include all Territorians. From a commercial perspective, the key messages are that we need to understand what we currently have, both with respect to ICT export business and intellectual property, and to leverage off that for growth.
With the role of government ICT business currently 25% of total industry sector turnover, it will decline proportionately over time and needs to be seen as a declining opportunity. In 10 years, 90% of ICT business needs to be business to business and business to consumer. For this to occur, ICT exports must be the big growth area. From a social equity point of view, the forum recognised that the disparity of access to ICT between urban and non-urban centres needs to be addressed. I am pleased to note from progress reports given to the forum from LGANT and ODN and others, that this issue is being addressed.
Indigenous people in remote communities are more than clients. The most difficult task for the ICT industry is to develop business relationships and business to customer relationship models that respond to the needs of indigenous people, both as customers and commercial partners.
Finally, in terms of industry development, the strategic planning for growth in the ICT industry, the forum discussed the need to produce, attract and retain appropriately skilled professionals who can participate in and drive growth of the NT’s ICT industry. If we do not do this the industry will not grow as it should
I note that the good work did not stop with the close of the forum. A combined ICT industry and government group has been formed and held its inaugural meeting on 9 September this year. The group comprises six ICT industry members, three NT government members: DCIS, DBIRD and OTD, and one Commonwealth government member, Austrade. The group aims to drive initiatives from the forum to allow the NT industry by creating benefits for Territorians. It will establish targets for industry growth, prioritise and steer joint industry and government agreed initiatives, and provide advice to the ICT industry via the Australian Information Industry Association and government via the Minister for Communications. This group is chaired by the NT Chair of the Information Industry Association, Jim Carew, and it will meet at least bi-monthly and report back to the ICT forum before the end of 2003. A further initiative is that Austrade has coordinated participation in an overseas delegation for the Australian ICT industry to Shanghai for the Australian Multimedia and Digital Effects Showcase from 12 to 15 November, and has invited applications for the NT ICT industry to participate.
In the wake of the previous government’s decision to outsource government’s ICT services, the challenge for our government, along with the industry, is to manage the costs of services provided to government and to work in partnership to leverage growth and industry development opportunities as a result of this spend.
In closing, I note that the recent ICT forum was the start of that partnership, and I look forward to providing further updates to the House on progress.
Dr LIM (Greatorex): Madam Speaker, I welcome the minister’s statement. I believe the ICT forum was a very successful one. I took the opportunity to duck in to a couple of sessions to listen to industry and government interact with the business at hand.
I believe the outsourcing of IT services by the CLP government has been a very good initiative that has allowed the growth of ICT in the Territory. It is one of the positive actions that we have taken to encourage the continuing growth of ICT expertise, particularly in Darwin. It is unfortunate that a lot of the activity has not transferred to our other regions as much as we would like to have seen.
I was a little disappointed that, while I was able to attend some of the sessions, that I was not invited to attend by the minister. It was something that the opposition has a lot of interest in and it would have been good to be invited to attend and to mix with industry. It is something that I believe I have some significant expertise in, and it would have been good to be able to rub shoulders with our ICT industry leaders in Darwin in particular. However, I did have the opportunity to meet with the people there and had occasion to make a couple of suggestions to the people privately.
Let me welcome the minister’s statement. I thought it was a very good initiative.
Mr HENDERSON (Business, Industry and Resource Development): Madam Speaker, I thank the member for Greatorex for his general supporting comments. This industry is vital for the future economic prospects for the Northern Territory economy. We really have to grow this industry in partnership with industry and, as I said in my statement, we are about 25% of government spend.
One of the key things that we have to do was acknowledged by the forum; that we do have to contain the costs so we can maintain the confidence of the people in the Northern Territory in the outsourcing initiative. I have always stood in this House supporting the initiative in concept but the attention to detail by the previous government was not there. We have seen significant cost blow-outs to the tune of about $10m as a result of that. We aim to rein those in. We will be working with the industry to lever economic growth and opportunities from that. It was a great forum. It was very well received and I am glad the member for Greatorex took the opportunity to attend some of the sessions.
Reports noted pursuant to Sessional Order.
MOTION
General Business Day
General Business Day
Mr STIRLING (Leader of Government Business): Madam Speaker, I move on behalf of the Chief Minister, pursuant to Standing Order 93, to nominate Wednesday, 9 October 2002 as the next sitting day on which General Business will have precedence over the government business.
Motion agreed to.
TABLED PAPER
Information Bill Regulations
Information Bill Regulations
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I take this opportunity to table the regulations that accompany the Information Bill for debate today. I think honourable members have copies of those already, but I want to point out to them that this is inherent to the debate today. We will be looking at both the regulations and the bill itself.
Mr BURKE: (Opposition Leader): Could we have those distributed now, Madam Speaker?
Madam SPEAKER: Could they be distributed now, please?
Dr TOYNE (Justice and Attorney-General): Absolutely.
INFORMATION BILL
(Serial 85)
HEALTH AND COMMUNITY SERVICES
AMENDMENT BILL
(Serial 86)
OMBUDSMAN (NORTHERN TERRITORY) AMENDMENT BILL
(Serial 87)
(Serial 85)
HEALTH AND COMMUNITY SERVICES
AMENDMENT BILL
(Serial 86)
OMBUDSMAN (NORTHERN TERRITORY) AMENDMENT BILL
(Serial 87)
Continued from 14 August 2002.
Mr MALEY (Goyder): Madam Speaker, I place on the Parliamentary Record some of the opposition’s observations on the eve of the passage of the Information Bill (Serial 85) and the other consequential amendments which affect some of the related legislation.
I intend to do that by taking the honourable members to the FOI debate and make some general comments about that and, secondly, the Labor government’s response to that debate and some of the submissions that were made. Thirdly, I wish to take honourable members specifically to the objects of the Information Bill, and talk about the exemptions and also the enforceability of the bill and some of the appeal processes. Finally, I intend to make some specific remarks about the bill and the practical effect that it will have and the implementation of the provisions.
I can say from the outset that any criticisms about the mechanics or the drafting of the legislation should, of course, not reflect at all upon the Parliamentary Counsel. If the administrative lawyers have had some input into the drafting they are, of course, governed by the instructions of their political masters.
Probably the words with which most people are familiar with regarding the Information Bill, are the ‘freedom of information’ debate, FOI legislation. The entire debate has been poorly understood. I hope I am proved wrong on this, but I suspect that debate in the Chamber will be difficult because it is complicated legislation. To really understand and to debate it in a full and frank way, there has to be an enormous amount of work put in to understanding the mechanics and the effect that it is going to have.
I am not an administrative solicitor. I am indebted to the assistance I was given by a couple of members of the Administrative Lawyers Association of the Northern Territory. They were not, of course, acting on behalf of their association but, rather, just providing me with some direction and assistance in understanding the mechanisms which are contained in the legislation.
I suspect that the bill’s current proponents, the Labor Party, not only do not understand the legislation, but they are probably not interested in the real mechanisms or the merits or otherwise of the legislation and its practical effect. The FOI legislation is probably the ultimate political football in that regard. However, credit where credit is due: with a great deal of political skill, the Labor Party, my friends opposite, have certainly manipulated the debate very well. They have oscillated between free and open access to all information whilst in opposition, to the restrictive model which comes before parliament today whilst they are the government. I will say a little more about that later.
If we are to introduce laws of a similar vein as that contained in the Information Bill, as a parliament we should make sure that such laws are not heavily compromised ones which have little prospect of achieving their perceived goals. In some other jurisdictions there is, unfortunately, a carefully stage managed process that is more illusionary than real. We should, hopefully, through parliamentary debate into considering and reviewing what has occurred in other jurisdictions, learn from those mistakes and pull together what can be described as best practice legislation.
There have been some submissions and, certainly, some concern raised about the cost of implementing the legislation. I am not in a position to really debate in a constructive way the potential cost. We heard the Attorney-General say on radio yesterday that there is about $750 000 in the cost of the Office of Information Commissioner and perhaps the support staff at this stage. There are some figures which have appeared in the budget. However, at this stage there is no other material in the public arena which I can usefully take honourable members to regarding potential cost on the community of dealing with this legislation.
There is no doubt that open and accountable government is not cheap. From my reading, it seems that many commentators have discussed the issues of cost. Indeed, in New Zealand’s High Court, Justice Thomas made some observations about the cost to the community of the legislation. I take honourable members to that; it was published in a book by P D Finn, Essays on Law and Government, a Law Book Company book. At pages 182 to 227, there is a discussion about costs and the like and, at page 225, Justice Thomas is cited. I will read this into the Parliamentary Record:
- Democracy and open government go hand in glove, the nexus derived from the sovereignty of the people.
Government is delegated with the authority in power to act on the people’s behalf and the official information
it gathers, in whole pursuant to the devolution of power, is gathered and held on the people’s behalf. For
representative government to be responsible and accountable, it must take the information available to the
people and they do have …
And in his emphasis:
- … a right to know. Other essential features of democracy are implemented, irrespective of the cost burden
they might impose …
He goes on to talk about the cost of parliament and makes some other observations of a general nature.
The true cost of implementation of this legislation will be something this parliament will have to monitor carefully. Perhaps in a year or two, this Chamber will, through probably a review of the budget Estimates Committee, have to make a proper inquiry as to the real cost of compliance to the taxpayer.
I am informed that there were approximately 52 submissions from interested organisations who had an opportunity to examine the discussion paper, which was the draft bill, before it became the bill which has fallen to be considered by parliament today. An examination of the draft discussion paper/bill and this bill, reveals that in substance there has not been an enormous amount of change. In fact, it reveals there was little change. There were a number of submissions, and the Attorney-General in his second-reading speech talked about giving them consideration. Well, he certainly has not given them much consideration; if anything some of the exemption provisions have been amplified and made even tighter. I understand that there will be other comments made specifically about the changes that were made or not made a bit later on by other speakers.
If you really want to, you can look at the legislation and understand the rationale behind it. The starting point, of course, is trying to determine what the objects are. This particular piece of legislation has, quite conveniently in clause 3, ‘Objects’. It states that the objects are – and there a very noble type objects. I am not going to read them all onto the Parliamentary Record, but it talks about actuating a general right of access. It talks about making information available to the public and protecting privacy. Then, at clause 3(2) of the bill it goes on to say:
- This act is intended to strike a balance between competing interests by giving members of the Territory
community a right of access to government information with limited exceptions and exemptions for the
purpose of preventing a prejudicial effect on the public interest as described in subsection 1(a)(ii).
If you read through the act in a logical way, on a cursory examination, you will soon come to clause 7, and it really flies in the face of what the stated objects are. Clause 7 is headed ‘Nature of rights created by this act’. So we are looking for the rights which Territorians have:
- Except as expressly provided by this act –
(a) this act does not give rise to a cause of action or create a legally enforceable right; and
(b) a contravention of this act does not create criminal liability or make a person liable to be
prosecuted.
We have, it seems, in a clumsy way talking about giving members of the Territory community a right of access and then, a bit later in the same act, clause 7 specifically says that it does not create a legally enforceable right.
While we are talking about the draft, I had an opportunity to look at the submission made by the Ombudsman, Mr Peter Boyce, some time ago. Of course, many of the observations and comments he made about the draft legislation certainly apply to the bill which is before parliament today. If you have a look at page 3 of his written submission, where he is talking about the draft:
- If government ultimately chooses restrictive and limited FOI legislation such as the current bill proposes then,
at the very least, it needs to be upfront as to why, and to be able to acknowledge the issue and divergent views
that they promised.
Remember, in terms of exemptions this particular piece of legislation is even more restrictive. He goes on to say at the bottom of that page:
- The course being followed seeks specific comment on a bill that, at first reading, appears to provide a very
significant degree of access and addresses areas such as privacy and record management extremely well.
However, those who have some understanding of the issue in debate, in respect of FOI, are quickly able to
perceive that the bill does not, in truth, give effect to real access to information due to the inclusion of
restrictive provisions and broad-based exemptions.
The debate today should revolve around the issue of exemptions. I trust that members opposite - particularly the backbenchers - discharge their duty and obligation to carefully read the legislation, and to participate in an informed debate on the subject.
I am fearful that – and this is perhaps a more systemic problem – some of the backbenchers are all too often reluctant to speak up against the government or ministers, as this may create the impression of some sort of party disunity. That person then, of course, reduces their chances of becoming a minister or, potentially, a leader. What we get then is executive government and not a parliamentary government since the executive, which is the body corporate which is Cabinet, controls the purse strings and makes all the decisions. It is really an onerous duty, and one which should not be discharged lightly. Backbenchers, as well as the opposition, should carefully examine all legislation that comes before this parliament to ensure that only good laws are enacted for the people of the Northern Territory. Indeed, it was one of the pledges I made in my maiden speech, to ensure that I would do all that I could that only good law would be considered by this parliament. Indeed, the people of the Northern Territory deserve no less.
The objects of the bill are noble – I said that - and then the balance of the bill then goes on to focus on restricting the degree of access and making it clear that there are no rights. The restrictive golden threads which permeate the entire bill are also similar to the ones which the Ombudsman quite appropriately drew parliament’s attention to before the final draft of this bill was settled. We can take it from that, that this Labor government has deliberately included those restrictive threads into the bill because they were made aware of those concerns, those restrictions, by a number of submissions, not the least, of which came from the Ombudsman; he says it in his report. If I could just paraphrase a portion of it; he says that the failure to recognise the importance of the right to access is a major component of democratic government. The bill as it is currently, says it is not a legal right, but it is something else. It is some step down from a legal right to access.
There are just too many broad-based exemptions: the very powerful tool of exemption certificates is not able to be reviewed in any way - that is something which may be remedied if the government is open-minded enough to consider one of the amendments which the opposition will suggest; the exemption of a deliberative process; the negative focus on disclosure generally; the restrictive powers of the Information Commissioner; and the rigid formality of the complaint process.
History is a great teacher, and it is certainly no surprise to any students of politics and those who are well read, that all of the issues which we are considering today have, in one way or another in the past, fallen to be considered by parliaments in other jurisdictions, in other countries. Of course, the commentators - solicitors and barristers and academics with an interest in the area - have reviewed that process and made certain observations. We also have a number of journalists who have written reviews and articles on the effect, if any, the FOI legislation in that particular jurisdiction has had on their capacity to obtain material and do their job properly. By way of example, the Associate Professor of Law and Legal Studies at La Trobe University, Spencer Zifcak, in a paper entitled Thinking Clearly About the Right to Know, at page 39, where he was talking about Britain’s white paper on FOI – after reading this, I thought it only appropriate that it be put on the Parliamentary Record:
- It is frequently said that it is practical to introduce effective FOI legislation only within the first few months
of a new government. After that, power and cynicism prevail to overwhelm the principal commitment to
more open and accountable government.
There was an article written by a journalist who is also, I understand, a solicitor. From the Australian Centre For Independent Journalism, the article is headed Still Too Much Trouble: FOI in Journalism. He deals with some of the problems journalists have endured trying to gain access to information. There was a national conference, it seems, where journalists considered, amongst other things, access to information, open and accountable government. The conclusion was this; at page 17 of the article:
- Most participants of the FOI conference were cynical about the commitment of government, both ministers
and senior bureaucrats, to the openness objective. Opposition parties which rail against secrecy and
abuses of FOI mechanisms to deny them access to potentially sensitive documents soon changed their tune
when in office.
I do not have to remind the member for Fannie Bay, of course, what was recorded in Hansard on 22 April 1999, but I can remind the other honourable members of this House, including the backbenchers, of course. If you have read the transcript, you have the then Leader of the Opposition on behalf of her party and, of course, the now government, saying things like:
- Let’s have freedom of information legislation. Let’s knock out every single exemption and show Australia
what the Territory can do. What a challenge! Let’s show Australia.
… we will have an awesome piece of freedom of information legislation.
It wasn’t just an off-the-cuff comment because a few moments later, the then opposition representative, the government, said:
- We look forward to the next session of parliament when I will reintroduce the piece of legislation without any
exemptions and then we’ll be able to join together and support the legislation.
Now, today really is that day. The proof really is in the pudding. This is the legislation which, according to the then Leader of the Opposition, would contain no exemptions, would be an awesome piece of legislation and would really put the Northern Territory in a category all of its own.
Unfortunately, what was said has not been carried into fruition. Even more disturbingly, and I certainly do not wish to play the man here, but the Attorney-General - doing his job promoting the legislation which the government is producing - yesterday on the radio advocated - he was talking to Fred McCue and endeavouring to promote the merits of the new legislation. The issue of exemptions was clearly something which the reporter, Fred McCue, was interested in. The learned Attorney-General said there is a mountain of government documentation and then, dealing with the issue of the Chief Minister’s capacity to issue an exemption certificate:
- But the Chief Minister can put an exemption certificate on in very exceptional circumstances.
That is interesting: exceptional circumstances. He went on to say:
It is meant to be an extremely exceptional case.
I thought, well, that is interesting, because I cannot recall reading the words ‘exceptional’ or ‘extremely exceptional’ in clause 61. It talks about the issuing of an exemption certificate, and if I can just read it on to the Parliamentary Record:
- The Chief Minister may issue an exemption certificate certifying in writing that government information
identified in the certificate is exempt because it is –
It goes on to give a couple of categories.
- The Chief Minister is not required to confirm or deny in the exemption certificate that the information
identified in the certificate exists.
Reading the balance of that part, up to Part 5, reveals that there is no reference to the words ‘exceptional’ or ‘extremely exceptional’.
If a representative of the corporate body, which is the government, is going to promote legislation - which is indeed the government’s job to inform the community - then to infer that it contains some safeguard, ‘exceptional circumstances’, ‘extremely exceptional cases’, is misleading. It seems to be a deliberate untruth and calculated to mislead Territory people into thinking that there is something contained in this legislation, when there clearly is not.
Whilst I am talking about some of the minutiae of the legislation, if honourable members keep in mind the general objects of the legislation that are contained in clause 3, I can perhaps, in a summary fashion, touch upon a couple of the exemptions contained in Part 4: Part 4 - Exemptions in the Public Interest. Perhaps, for the sake of clarity, I make this point: in the second-reading speech when the Attorney-General was specifically dealing with the issue of exemptions, he was, in his usual fashion, just parroting out a speech which sounded like he had not read before. In any event, a copy of this was provided to me through the Hansard process:
- All other exemptions specify harm test of disclosure.
Now we have the word ‘harm’, and we are talking about harm. I thought for a second he might be referring to clause 3, if they were exemptions for the purpose of preventing a prejudicial effect. Okay, so we have this – an exemption will apply if it is going to have a prejudicial effect – and we now have the Attorney-General using, in the second-reading speech, ‘the harm test of disclosure’. He goes on to say and he makes it even clearer:
- … there has been placed within a category of absolute exemption, because of the identifiable and clear
harms that would arise from its disclosure.
However, clause 45 goes on to say: ‘Information is exempt under clause 44 if …’ and it has a number of examples. None of those subsections in clause 45(1)(a)(i) to (vii) have any reference to the term used in the objects - that is, of course, the purpose of preventing a prejudicial effect on the public interest - nor is there any reference to this cavalier phrase which the Attorney-General used in his second-reading speech about identifiable and clear harms. Rather, we have a number of categories which, if a public sector organisation can squeeze a piece of information into, will suddenly come and discover clause 44, ‘Exemption’. An example of that is the first one:
- (i) was brought into existence for submission to and consideration by an executive body, whether or not
it has been submitted to or considered by the executive body …
Executive body is defined at the end of that clause to mean Cabinet or the committee of the Executive Council.
So, the very core of some sort of administrative review of freedom of information is to ensure that, if a decision has been made, that the person who made that decision considered all the relevant matters. There is, in my view, absolutely nothing - unless there was a real and demonstratable harm - that should stop the raw material upon which a decision is made being available to the public. Obviously, the deliberation of the Cabinet is a different category, but the raw material upon which those deliberations are made should be made available to the public and be subject of this process.
If you read the subsection (vi):
- would disclose a communication between ministers about the making of a decision or the formulation of
policy if the decision or policy is of a kind generally made or endorsed by an executive body.
Therefore, if you read that literally, that means that a briefing given to a minister on a particular subject matter - a briefing providing the raw data - and that minister was going to discuss that with another minister, that would automatically come within this scope of this blanket exemption - even if that information would not be prejudicial and not do any damage to the government, would certainly not be an identifiable and clear harm, and nor would it create a prejudicial effect on the public interest.
What I am saying is that, if you are going to have these blanket exemptions, there needs to be some very specific reference to it being the subject of the exemption, because of the specific prejudice or the specific harm. Then to say: ‘generally may or endorsed’, well, there is a use of the word ‘generally’. I suppose it is not ambiguous literally, but it is just so broad. If something was ‘specifically made or endorsed by an executive body’ well, fair enough, you could arguably say it is in a category which would need closer review before it is disclosed. But ‘generally may’? Once again, it is broad. It is difficult to find a piece of information which would not be capable of being covered by one of the exemptions contained in Part 4. Then subsection (viii) talks about the drafts of that particular information.
I am not the only person who has talked about making available the raw material upon which those decisions are made, and perhaps even the explanatory notes. The Ombudsman, in a very good report - and full credit to him, he is a very thorough researcher - says at page 13, and I will just read this onto the record from Peter Boyce’s report:
- It is not, in my view, necessary to propose blanket exemptions which automatically rule certain documents
exempt. The one possible area where this might not be so would be in regard to the decision of Cabinet for
obvious reasons. What I believe is a more appropriate way to approach the exemption process is to
provide for a presumption that all government information should be made available in the public interest.
Then he talks about the New Zealand model which says that, effectively, documents should only be held to be exempt when they fall within certain specified criteria and then only if it can be demonstrated that their disclosure would result in demonstrable harm. So once again, it sounds like a play on words but this legislation is written in the negative. Rather than saying: ‘Okay, all information is available in the public interest and here are a couple of exemptions’, in my view it really says quite the opposite. It says: ‘Here is a blanket exemption and you can try and argue and weave your way through the provisions to get your anticipated and sought after disclosure’. The Ombudsman, at the bottom of page 13, goes through and quite logically argues the case why these particular broad-based type provisions are not effective.
Clauses 45(1)(a)(vi)and (vii) are provisions which were not in the original discussion paper and there has not been an opportunity afforded to some groups which are interested in discussing at length and giving an informed view on the effect that that wording will have. But people whom I have forwarded a copy to, and specifically drawn their attention to the provision, have asked quite logical questions. The clauses need to be made clearer. The asked questions like: why isn’t background information which is provided to a minister made public? We are not talking about the deliberations, we are talking about the raw factual material. The exemptions are broad and, in my view, certainly too broad.
The other provision which was the subject matter of a number of submissions and still causes some real concern to some members of the community - particularly those who practice in administrative law - is clause 52. One view put to me was that the entire clause should be repealed as it is just too broad and does not assist. If honourable members have a close look at clause 52 - I have some general comments before I go through it specifically. Clause 52 deals with preventing the disclosure of information which is to the very core of this whole process. Clause 52(1)(a):
- an opinion, advice or recommendation brought into existence by or on behalf of a public sector organisation
in the course of, or for the purposes of, the deliberative processes that are part of the function of that organisation ...
That goes to the very heart of the decision-making process. What if those deliberations, that material, did not prejudice the public interest? What if that material clearly did not do any harm? To use the Attorney-General’s words which, of course, don’t appear in the legislation: ‘there is no identifiable and clear harm’, then why can’t that information be disclosed? There is absolutely no reason why it should not be.
For those honourable members who are following the debate, you have to read clause 52 in light of clause 50 which says:
- … information … is exempt only if it can be shown that, in the particular case, it is not in the public interest
to disclose the information.
And then in clause 51:
- Information may be exempt under clause 50 if disclosure of the information …
were disclosed. Then clause 52 goes on to assist the making of that decision under clause 50.
A practical example might be the recent review of the taxi licence system and scheme. What if a person who was aggrieved by the minister who made a decision in relation to taxi licences, made an application under this legislation, his argument being that he wants to know exactly what raw material went to the minister? He wants to know exactly what the recommendation that came from the public sector department to the minister was, and it turns out that a crucial piece of information was not before that decision-maker when that recommendation was made. That is crucial information. That is the type of information which this legislation should be giving to people who make the application.
Ms Martin: You do not understand. It would be; it would be available. You do not understand, Peter; that is the problem.
Mr MALEY: Well, I will be interested to hear the learned comments from the member for Fannie Bay.
As I said, I am just going upon what is written in the legislation, not the rhetoric, not what was said in parliament. It has clearly been demonstrated that little weight or reliance can be given to what is said by certain members of the government in parliament and, indeed, you cannot rely upon what they say on the radio.
That is a real and practical example. There would be no harm, there would be no prejudice, yet that person, potentially, would not be allowed to access that information because it would come within the category of clause 52.
Of even more of a concern is that we are talking about deliberations of a government department; we are not even talking about heading off to Cabinet or at the ministerial stage. We are talking about restricting Territorians’ rights to access information and the basis upon which decisions are made by a government department which may affect them or someone they know. It may not affect them personally, but it may be something that should be in the public interest, should be in the public arena and they have made an application to have that disclosed.
There is a new clause 52(5) that has been inserted in light of the submissions that were made and are contained, it seems, nowhere else but in the new bill. It says:
- To show that, in a particular case, it is not in the public interest to disclose government information
referred to in subsection (1) …
So, once again, where all these subsections are trying to amplify and explain what category of information can come within clause 50:
- … a public sector organisation may have regard to the following factors:
Ms Martin: He has only 55 seconds. Are you going to support it or not? Are you going to support it? We cannot give you extra time. You have wasted 45 minutes.
Mr MALEY: Well, it is part of the parliamentary process, and I am courteous to you when you speak, quite frankly.
Ms Martin: No, you are not.
Mr MALEY: One of the considerations in clause 52(5)(a) is it talks about:
- the more senior the person who created … or considered the information … the more sensitive information,
the more likely it will be … information should not be disclosed …
Here we have enshrined in legislation some principle that, if you are higher in the ranks in the bureaucracy, then that is a consideration which would have some bearing on whether or not that information should be disclosed. I am not sure how the thousands of public servants feel …
Mr BURKE: Madam Speaker, I move an extension of time for the member to complete his remarks.
Motion agreed to.
Madam SPEAKER: I am mindful of the fact you have had 45 minutes.
Ms Martin: Say something. We have given you an extension, say something relevant.
Madam SPEAKER: Order!
Mr MALEY: Okay, well …
Ms Martin: Are you going to support it or not?
Madam SPEAKER: Order! Chief Minister, let him get on with it.
Mr MALEY: I have obviously struck a bit of a chord here.
So that is an example. If you go down to clause 52(5)(c), one of the considerations which has been enshrined in the act:
- the disclosure of information that will inhibit frankness and candour in future pre-decisional considerations
is likely not to be in the public interest;
That is saying that secrecy is okay. The whole purpose of this act is to avoid any sort of pre-decisional considerations. The whole process is to make sure that people have access to the criteria which the bureaucrat relies upon in making the decision. This flies completely in the face of the whole rationale behind the legislation.
Then it goes on to say, at clause 52(5)(d):
- the disclosure of information that has the potential to inhibit the independence of the decision-maker
because of the possibility that the disclosure could result in the decision-maker being unduly pressured
or harassed …
Well, if there is a perception of bias, or certainly if there is actual bias, that is all the more grounds for that particular decision-maker not to be making that decision – decisions about ensuring that there is no perception of bias as well as ensuring there is no actual bias. As I said, I cannot think of an aspect of governmental activity which these exemptions could not be stretched to cover. Indeed, perhaps the Attorney-General could give honourable members an example of material which would be available as a right under this legislation, which these exemptions could not be extended to cover.
I am mindful of the time and I am indebted to the honourable members for that extension, but briefly, there is absolutely no logical reason why the Information Commissioner cannot look behind the issuing of an exemption certificate. Of course, the Chief Minister, at the time, will have to be personally satisfied that the material that is formally to be considered by her would come within the scope of one of those exceptions; and that decision itself is most certainly reviewable.
As to who should be the Information Commissioner, in other jurisdictions the Ombudsman is, I understand, one and the same. He also has the role of Information Commissioner, and that seems an inherently logical step. If you look at the role of the Ombudsman, and it seems the purpose as stated in the objects of this act are very similar and the rationale is similar; it seems logical to me that the Information Commissioner and the Ombudsman should be one and the same.
There is a concern about the lack of independence in terms of the five-year appointments. I know that is something which is taken directly from other jurisdictions, but it is a semi-judicial appointment and it is an important role. Perhaps some lengthening of that appointment period and as the Auditor-General, you get appointed for one term, and that is it. Just to ensure that there is, at least, the perception of independence.
In conclusion, the devil really is in the detail of this bill. There is a fairly complicated appeal provision which I have not taken honourable members to. However, I am happy to provide you with briefings if you want. There are also a number of raw exemptions which will lead to some frustration and delay and the haphazard provision of information. I suspect that, in reality, time will be the true test to see how this bill operates at a practical level.
The bill does not affect, of course, the bleatings of the then opposition, and the Labor government continues to mislead Territorians about the true effect of the bill, as recently as yesterday. I suspect the Labor Party minders will be working overtime to persuade any intelligent members of the media that the bill is anywhere near what they say.
I give this one final example: if you look at clause 124, the hearings are closed to the public; there is no right to representation in clause 123; there is no appeal except on questions of law to the Supreme Court under clause 130; and under clause 155, there is a specific exclusion, it seems, preventing review in the Supreme Court and also by the Ombudsman. So, here we have, potentially, a person who is not allowed to have a lawyer - perhaps it is a person whose English is the second language …
Ms Martin: How will they survive?
Mr MALEY: So you have this person not only having to run the gauntlet of the complicated procedures here, but they go into this hearing by themselves. There are no members of the public there, it is all in secret. It flies in the face of what FOI is supposed to be in its purest sense.
The opposition does have an amendment to the legislation, and we will not be supporting the legislation in its current form.
Ms MARTIN (Chief Minister): Madam Speaker, we had – what? The best part of 50 minutes and more from the member for Goyder. In that 50 minutes, very sadly, we did not have one relevant comment to this bill.
We had someone who comes to this parliament as a lawyer, who should be able to read and understand legislation a bit more clearly than this; and was simply misinterpreting legislation all over the place. The interesting thing is that here is the shadow Attorney-General who has not once asked for a briefing – not once asked for a briefing. It is a real indictment on the opposition and the Opposition Leader that you have a shadow Attorney-General who comes in here, takes extra time - over 50 minutes - has not had a briefing, and simply makes mistakes about what this legislation is about.
It is very sad, and is a real indictment on what the opposition is doing about this bill, that we should have this as the first performance from the opposition, talking about a very important bill - not only ill-informed because he has not had a briefing, but simply wrong on how he is interpreting the legislation. So, we have a particularly Maleyesque, Goyderesque interpretation of the legislation, and simply: it is wrong, wrong, wrong.
I hope at least there is going to be somebody else from the opposition who is going to speak on this, because we now have the position where we have an opposition who, for 27 years in government - 27 years - never introduced freedom of information. Now we introduce freedom of information …
Mr Burke: We have a government that cannot even draft their own without adding more exemptions. You couldn’t even put together your own legislation, you used ours.
Ms MARTIN: … freedom of information legislation …
Mr Burke: And then put in more exemptions. What hypocrisy!
Ms MARTIN: Madam Speaker, we have a government that has made a commitment to introduce freedom of information. Here we have excellent legislation; legislation that has a balance between open, accountable government and access to information …
Mr Burke: You should not be speaking, you’re on the Hansard record.
Madam SPEAKER: Order.
Mr Burke: Don’t take any notice of anything I say on the Hansard record, I’ll change my mind next week.
Madam SPEAKER: Leader of the Opposition, order!
Ms MARTIN: Madam Speaker, we are getting a very rude response here from the Opposition Leader - very rude. This legislation, which gets that balance right and is excellent legislation, and we have the hypocrisy from the Country Liberal Party …
Mr Burke: That’s the balance between no exemptions and more exemptions is it?
Ms MARTIN: If you go back and read the Hansard you will see the context of that, Opposition Leader. You will see the context of that, and that is not what was said. It had a different context, and we were talking about the introduction of a bill by the Opposition that had exemptions, quite appropriate ones. But it was you, with your pathetic little privacy legislation you were promising, saying that is all Territorians wanted: ‘Territorians did not want freedom of information they wanted my privacy legislation’. That is what the argy-bargy in the House was about and don’t be ridiculous. I had a bill that had proper exemptions in it and this bill likewise, like every other government in the country, every other parliament has proper exemptions; proper exemptions that are defined, they are limited, and they are appealable. They are appealable to the Information Commissioner.
To just demonstrate the ignorance of the member for Goyder, he said whatever clause it is, if you do go to an appeal it is not a public process, you do not have the community there; we do not have the community there. Of course, if you are discussing whether something should be made public or not, why should you have the public there when the discussion is under way? How ridiculous, how stupid! How absolutely stupid, and demonstrating you cannot test public interest if you have an open hearing. If it is not in the public interest to release it, you have had that discussion in public already – how ridiculous!
If we had a shadow Attorney-General who understood the legislation and who had even asked for a briefing - not one member of the opposition has asked for a briefing - and is standing in here and I expect we are going to hear more of the same …
Mr Burke: You don’t need a briefing on this stuff.
Ms MARTIN: … making ignorant comments. Well, you do not understand the legislation and we had 50 minutes from your shadow Attorney-General not understanding the legislation - not understanding it. We gave support in an extension of time to see if he might; and we still did not hear it.
Members interjecting.
Ms MARTIN: Did the shadow Attorney-General talk to the Ombudsman? No. Did the shadow Attorney-General even discuss with the Ombudsman about the current legislation? No. We have a very, very ignorant and poor performance from the opposition on this very, very important bill.
My government is very proud to be able to fulfil this election promise; a very important election promise to introduce legislation to provide access to information and protect the information privacy of Territorians. We are very proud today. The Labor Party has spent many years trying to convince our predecessors - and failed - that this legislation was needed and wanted by Territorians. Every other jurisdiction in Australia has legislation like this but, for too long, the Territory was denied the right to this information. The Country Liberal Party, for reasons best known to itself - and we never really understood except it was a secret of an unaccountable government - has always been opposed to this legislation. The former Chief Minister said repeatedly that he did not believe this legislation was necessary. Let us quote him, February 1999:
- I certainly don’t believe that that’s what Territorians want and I don’t accept it.
He was talking about freedom of information: ‘I certainly don’t believe that’s what Territorians want and I don’t accept it,’. The former Chief Minister and now the Leader of the Opposition said in 1998 - let us go back a year and quote him:
- I do not believe there is a real need in the community for freedom of information legislation.
I believe Territorians are comfortable with the sort of information that they can access.
In this one - the absolute cynicism of the CLP - he went on to say in this same quote:
- They …
Meaning Territorians:
- … have the opportunity to pass judgment every three or four years if they do not trust their government.
Last year says it all. The people of the Territory did pass judgment on the inactivity of the previous government. The people of the Territory voted for change; they voted for a more open and accountable government, one that believes in people’s right to understand the process of government and access to that information. That is why we have brought in a raft of changes to make the Territory a better governed jurisdiction with more accountable and transparent procedures.
Among our major reforms has been financial management reform. We recently prepared our first Territory budget under the new Fiscal Integrity and Transparency Act …
Mr Burke: 3000 reviews.
Ms Carter: Estimates!
Mr Burke: Economy going down the gurgler.
Ms MARTIN: Have they finished, do you think, Madam Speaker?
This means that, unlike in previous years when the budget was prepared in the Treasurer’s office, we have had a fully accountable and transparent procedure for which CEOs take full responsibility. There have been major changes to the budget related papers so that they are presented in a far more informative and accessible format, and meet accounting standards that apply in other jurisdictions at state and federal levels.
We recently transformed the budget scrutiny process by introducing, for the first time a proper Estimates Committee procedure. What this means is that ministers come before a committee of the parliament and answer for each and every portfolio on the public account. While we still need to refine the process further, it is generally acknowledged by parliament and the community at large as a vastly improved process than we had previously. For the first time CEOs and senior public servants were able to assist with a full response to parliamentary questions.
We also introduced many reforms to the parliamentary process to improve public scrutiny, such as televising Question Time and bringing forward debate on legislation earlier in the day.
Freedom of information is another of the major planks of our reform agenda, and is one that Territorians have embraced enthusiastically. The government has been very interested in comments made in the public consultation period and we’ve made amendments to the bill, particularly in the areas of retrospectivity and exemptions. Retrospectivity has increased from five to 10 years, and the ability to issue exemptions has been tightened by removing that role from government agency CEOs and placing it with the Chief Minister. In terms of retrospectivity, for information relating to a person, it goes back as far as self-government. So, as far as the records are there for personal information, it is open, it is accountable.
This is an historic day for Territorians. From this day forward, we will have the same rights as other Australians to government information. That is important to recognise: from this day, Territorians will have the same rights as other Australians to government information. The Leader of the Opposition, only four years ago, said: ‘Territorians do not want that right; they do not need that right, and they trust their government’. We see how wrong he was.
Let us look briefly at what this historic legislation will do. First, it provides for public access to information held by the public sector. It also provides for people to correct personal information held by the public sector that may, for various reasons, be incorrect or inaccurate. It also provides for responsible collection and handling of personal information by the public sector and provides appropriate records and archives management.
The bill also sets up an independent statutory officer, the Information Commissioner, to oversee the processes of privacy and access. Again, an appalling comment coming from the member for Goyder, our shadow Attorney-general, saying: ‘Maybe it sets up the perception of independence’. What a load of rubbish! What a cynical CLP attitude! This is an independent officer, set up in a statutory way under legislation that we are now discussing. The best the shadow Attorney-general can say is: ‘I think it might set up a perception of independence’.
The right of access has limited exceptions and exemptions and we have worked hard to make sure that this is the case. There must be some exemptions to protect the confidentiality of some processes of government. The opposition has had a few things to say about these exemptions. It is hard to reconcile the current attitude of the opposition with the former Chief Minister’s statement in April 1999 that, and I quote it again:
- The other thing that happens with freedom of information legislation, is that it invades the privacy of
individuals. Under this so-called notion of ‘I need to get this information on government or some
other certain public affairs’, individuals’ privacies are being abused.
Mr Burke: How about commercial-in-confidence information you said you would remove?
Ms MARTIN: Prejudice security and law enforcement. So the opposition would like public access to information that would prejudice security and law enforcement for Territorians. Is that what you are saying? Is that a good idea? Is that what you mean when you say: ‘You have too many exemptions’?
Madam SPEAKER: Chief Minister, direct your remarks through the Chair, not to the opposition. You know that.
Ms MARTIN: Sorry, Madam Speaker, I was severely baited by what they said before. No one except our opposition who, in a gross act of hypocrisy, would never introduce FOI, and are now saying everything must be available; there is no need for any exemptions. Talk about the 180! No one could dispute the needs for these exemptions; they follow other jurisdictions throughout Australia. There are also some exemptions that would protect information that would hurt inter-governmental relationships - quite appropriate - and an unreasonable interference with an individual’s privacy for business undertakings.
Mr BURKE: A point of order, Madam Speaker! The Chief Minister is actually misleading the Chamber by suggesting that the opposition is asking for FOI with no exemptions. I suggest she either withdraw that or apologise for her incompetence in deliberately misleading.
Madam SPEAKER: Leader of the Opposition, you will have a chance to respond to that comment when you rise in the debate.
Ms MARTIN: Madam Speaker, there are also some exemptions that would protect information that would hurt inter-governmental relations and an unreasonable interference with an individual’s privacy or business undertakings.
The power to issue exemption certificates may be utilised to protect particularly sensitive information and, in this legislation, may only be exercised by the Chief Minister over Cabinet and Executive Council information, security and law enforcement matters, and privacy and cultural information - quite appropriately. If you look at the Western Australian experience, they have had that part of legislation in for three years and it has never, ever been used. So it really is an exceptional circumstance.
The entire bill contains a fine balance, and a very appropriate balance, between allowing access to what is in the domain of the public’s right to know, with the need for privacy and confidentiality over some matters of government and state. I want to thank my Attorney-General, Peter Toyne, for his energy, commitment and enthusiasm in getting this legislation into parliament and fulfilling our election commitments. I also want to thank the Department of Justice and officers in government agencies who have worked so hard on this bill. It is always difficult singling anyone out, but I would certainly like to thank the Department of Justice’s Sue Oliver for her unstinting work to this legislation. Finally, I should thank the people of the Territory who voted for FOI and who have worked with us to make this legislation better.
STATEMENT BY SPEAKER
Presentation of Bible by Frontier Services
Presentation of Bible by Frontier Services
Madam SPEAKER: Honourable members, I lay on the Table a Bible presented to me by the Reverend Tony Davis, Minister for Frontier Services of Alice Springs, upon completion of the Last Camel Train journey from Oodnadatta to Alice Springs Telegraph Station as part of the Year of the Outback celebrations. The Bible was accepted on behalf of the people of the Northern Territory as a reminder of the dedication and commitment of the padres who endure much hardship in bringing comfort and support to those who live in our vast inland.
We must remember that Oodnadatta was the base for the first AIM patrol padre in Central Australia, Padre Robert Plowman, and Alice Springs was the half-way mark in his epic journey travelling across his parish of 100 000 square miles.
This Bible travelled on the Last Camel Train, a journey that honoured all those who travelled inland Australia by camel. The inscription in the Bible presented to me is from the book of Joshua in the Old Testament and I would like to record it for you:
- Remember that I have commanded you to be determined and confident. Do not be afraid or discouraged
for I, the Lord your God, am with you wherever you go.
Members: Hear, hear!
INFORMATION BILL
(Serial 85)
HEALTH AND COMMUNITY SERVICES AMENDMENT BILL
(Serial 86)
OMBUDSMAN (NORTHERN TERRITORY) AMENDMENT BILL
(Serial 87)
(Serial 85)
HEALTH AND COMMUNITY SERVICES AMENDMENT BILL
(Serial 86)
OMBUDSMAN (NORTHERN TERRITORY) AMENDMENT BILL
(Serial 87)
Continued from earlier this day.
Mr ELFERINK (Macdonnell): Madam Speaker, I also speak in relation to the Freedom of Information Bill which comes before this House today for our consideration. Freedom of information is certainly not a new concept to this Chamber and, in the past, I have argued against the Freedom of Information Bill which was put before this House by the then Leader of the Opposition - if memory serves me - Maggie Hickey.
One of the concerns that I raised the last time we discussed freedom of information in this House was the process of using exemptions to make freedom of information anything but freedom of information, and often freedom from information. I have to say that, on this occasion, I am not entirely convinced this act is substantially different from the particular principle. However, I do want to discuss some aspects of freedom of information before I go on.
Freedom of information is part of what is colloquially known in legal circles as the new property, and what new property refers to is not like old property: cars, houses, chairs, tables, those sorts of things. The new property has a body of the administrative law which is the possession of a person which is capable of being owned but is essentially intangible. A driver’s licence is an example of the new property - not the little plastic thing with your photograph on it, but the actual licence itself; it is an intangible thing, it is merely permission. Information is seen in that light. There are certainly good arguments for the law surrounding new property because new property has developed quite substantially over the last 50 years or so as a concept.
The reasons that has occurred is because the size of government has increased substantially over the last 50 years or so, which means it is far more invasive in our everyday lives than the governments of old used to be. Indeed, if you look at the Commonwealth parliament’s legislative program of the first 20 years, it actually fills up a bookshelf of about 12 inches thick. However, I am sure that if you look at the Commonwealth parliamentary legislative program for the last 12 months, it would take up three yards of a bookshelf. So, that gives you an idea of the amount and the volumes of legislation and the amount of intrusion into everybody’s lives in a daily process that government does as a matter of course. There may certainly be very many good reasons why government chooses to do so. The philosophy of how society is managed has certainly changed in the last 50 years. Then freedom of information then becomes part of that process of a philosophy of change.
However, the idea of freedom of information can be visited in documents such as the Australian Law Reform Commission and Administrative Review Council’s discussion paper 59 where freedom of information is outlined as a product of democracy. The process of bringing freedom of information is a process of bringing open government. Seeing that government is far more invasive than it used to be, we have to provide information to the people and the community of Australian.
I have found researching freedom of information particularly enlightening on this occasion, as I have done so far more thoroughly than I have done in the past. I am prepared to be persuaded that, perhaps, changes need to occur. Indeed, the discussion paper that I have already quoted said that in a democratic society there is also a strong emphasis on accountability. This is indeed a democratic society in which we live, and there must be that strong emphasise on accountability. That is exactly the position that the then Leader of the Opposition, now Chief Minister, was coming from when she announced in this House that there should be freedom of information legislation which was completely devoid of exemptions. We have heard through interjections today that that is obviously unreasonable, and it is. You cannot expect to have freedom of information legislation without certain exemptions built in. I will return to the exemption shortly. However, I will argue that if you are going to do it you must try to do it properly.
What we have had from the Attorney-General here before us, is what he calls the great freedom of information great leap forward. The Attorney-General wants to be able to go to the next election saying: ‘We are the government that introduced freedom of information; you are now free to received information from the government that the government holds on you, and you can also have under this piece of legislation your privacy protected’. So what we basically have happening is a government taking us on the great leap forward, so they say: ‘This is our piece of legislation and here comes our great leap forward’, and they have actually gone that far.
The process for trying to bring forward an open, honest and accountable government - which is the mantra that they members opposite chanted prior to the last election - was that they were going to bring forward a freedom of information act that could be trusted and had real teeth in it. I remain cynical about that after having read the bill before this House.
If we go to the bill itself - and I do not intend, in general ways, to drill down into the bill because we do not have enough time and that is what the committee process is for, should we end up in committee - I point out that the position of the government on this bill does not appear to be contrary to what I have been talking about. Indeed, when we look at the objects of the act in clause 3(3)(b):
- does not limit in any way access to government information other than personal information that is
publicly available.
The thrust or the object of the act is to try and demonstrate that the process is open, and that we want to, within reasonable parameters, be able to give out as much information as the public wants. But this is where we have to start asking questions: what are reasonable parameters? Basically, the process that the government is coming to us with in this bill is that we will have the right to ask for a search; then we will have a decision as to whether or not we will get the information that we are after. Then we will have a process of complaint in terms of the fact that we are not happy with the decision that we have been given because, for one reason or another, the information we are seeking is not forthcoming. Then we are pushed into a process of mediation. If we are not happy with the mediation of the government department, we then take the next step into the commissioner’s hearing process. Then there is a very limited way that we can then appeal to the courts if we are not happy with what we have received through the decision-making process. Now, the court process is extremely limited under this freedom of information bill, but I will return to that as well.
We then come to the public interest test. I thought to myself: ‘Gee whiz, where do we get the public interest test in relation to the exemptions?’ These are the processes of getting applications for searches and the government saying: ‘No, you cannot have this piece of information because it is not in the public interest’. Of course, we have the famous letter from Paul Keating to Lois O’Donohue which was mentioned the last time this came up. Basically, by the time the freedom of information process was finished with it was: ‘Dear Lois, signed Paul’, and everything else between had been blanked out. So that is an example of how the freedom of information process has, unfortunately in the past, not been as free and as open as we would like it to be.
Indeed, when I read the legislation that is before members at the moment, we have the issue of the public interest being raised in clause 52, if memory serves me correctly, which are the grounds that people can turn their attention to in overturning or refusing to give information. I turn to page 103 of Douglas’ and Jones’ Administrative Law which deals with, in general, the processes of freedom of information and public interest tests - public interest tests which allow for consideration of public interest in favour of disclosure. In truth, Douglas and Jones are talking about the federal Freedom of Information Act; however, it is useful as a guide as to what are public interest tests in this case.
The first provides for the disclosure of a document which would otherwise be exempt because it falls within a particular category of exemption, where there are matters in the public interest that outweigh those against disclosure. These are documents affecting relations between the Commonwealth and the states, financial property interests of the Commonwealth, or documents concerning certain operations of agencies. These are specific sections in the Commonwealth act, but you could template these public interest arguments on to the Territory legislation without a great leap of imagination.
The second type of public interest test is the deliberative process exemption, and that is certainly mentioned in clause 52(5).
There was a third type of public interest test, which is basically the one that is implicit in personal privacy. Indeed, this is something that the Chief Minister has referred to, and it was also in the legislation that was drafted by the former government, as I understand. They had already set the wheels in train.
It becomes very interesting as you start to drill down into what Douglas and Jones had to say, because they quote a case called Howard v Treasurer of the Commonwealth of Australia (1985), 7 ALD 626, Justice Daley’s decision. In that case, Justice Daley creates what are called the Howard Factors. For the sake of the debate before the House today, I turn my attention to the Howard Factors. It is interesting because I believe that the draftsman of this legislation was reading Howard at the time that they put the legislation together. I will give you an example – clause 52(5)(a), and I quote:
- the more senior the person who created, annotated or considered the information, and the more sensitive
the information, the more likely it will be that the information should not be disclosed …
And the Howard test is: the higher the office of the persons between whom the communications pass, and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed. Clause52(5)(b) from the bill:
- the disclosure of information that was brought into existence in the course of the development and
subsequent promulgation of policy tends not to be in the public interest;
The Howard test mark 2:
- Disclosure of communications made in the course of development and subsequent promulgation of policy
tends not to be in the public interest.
Clearly, we have a draftsman who was relying very heavily on the Howard test in Howard v The Treasurer of the Commonwealth. That is not necessarily a bad thing. This is by no means a criticism of the draftsman but, intriguingly, where there are five tests in Howard, the government gives us seven. So I have marked out through the different tests, and the wording is almost exactly the same, so it is very easy to separate out the different tests that we are talking about. The ones that are left over, when you go through the bill, are clause 52(5)(d) and (e), and I quote (d):
- the disclosure of the information that has the potential to inhibit the independence of the decision-maker
because of the possibility that the disclosure could result in the decision-maker being unduly pressured
or harassed is likely not to be in the public interest;
I would like to know from the Attorney-General where this extra subclause has come from. There may be a very good case on record that I am unaware of that demonstrates that there is good reason to have this particular subclause in there. Indeed, I think that decision-makers should be protected in terms of the decisions they make. It is not one of the Howard tests, but I do not think there is anything particularly dark or foreboding in that particular subclause.
However, I now turn my attention to 52(5)(e):
- the disclosure of information where the risk that the disclosure will result in a mischievous interpretation
of the information is not likely to be in the public interest;
‘Mischievous interpretation’ – now, I am not entirely sure what that means, and I am a little confused as to exactly what ‘mischievous interpretation’ may be interpreted to mean. Looking into the definitions under the act, certainly ‘mischievous’ does not appear there, and mischievous could mean any number of things. Mischievous could be a reference to unlawful and, in that case, perhaps that would be a particularly good subclause. Indeed, perhaps the word ‘unlawful’ should be the word substituted there. I would encourage the Attorney-General to turn his attention to that. But, no, I think the word ‘mischievous’ is much, much wider in terms of interpretation than simply the lawfulness or otherwise of a particular recipient of information, or the lawful intention or otherwise. Despite the cluckings of the Chief Minister, Attila the Hen, the fact of the matter is that the …
Dr TOYNE: Madam Speaker, a point of order! I would ask that that be withdrawn. He is referring to the Chief Minister as …
Madam SPEAKER: Member for Macdonnell, withdraw that remark. But be careful.
Mr ELFERINK: Madam Speaker, I withdraw the remark - very sensitive that they are. I am actually trying to draw the attention of the parliament to this particular issue.
The fact of the matter is that, if the interpretation of mischievous is to mean that we could be, in some way, embarrassed by the information that is received by the recipient - that is therefore mischievous, therefore we are not going to let the information go out - I wonder how consistent that is with the objects of the act. The question I ask is: is it at all consistent with the objects of the act? If we read clause 3 in terms of the objects of the act; no, it is not.
The government is introducing freedom of information legislation into which they are building the processes already of being able to break away from their own accountability. If they think that the information that goes out is going to be, in some way, mischievous – that is, embarrassing to them or used mischievously - the journalists will not be able to access that information, the opposition will not be able to access that information and much more importantly – much more importantly - the public of the Northern Territory will not be able to access that information.
So it is now a judgment call by the bureaucrat - whomever that may be - in terms of what is mischievous and what is not mischievous. Remembering that the final power of veto in this legislation does not rest with the bureaucrat but the Chief Minister itself, then the politicisation of this act is not only possible, it is likely - dare I say, almost inevitable. I am certain that the tick and flick sheet that the Chief Minister will have on her desk in saying: ‘That goes through, that does not, that goes through, that does not’, is going to somehow miraculously favour the government of the day. It is an astonishing thing. Is it one of the tests in Howard? ‘I will check it. Oh dear, no it is not’. Mischievousness is not a test in Howard, so I would ask the Attorney-General to turn his attention to that particular issue.
Now we have to understand how the decision works. The processes: now that I have my application in - I want some information out of the government and I get told: ‘No, you cannot have it’; because one of the exemptions I cannot have the information. There may be a good reason for that. So, what are my options for review? Well, according to the minister, I am now supposed to go into mediation with the department concerned.
This is interesting because this FOI legislation does not operate like any other FOI legislation in the country. The reason for that is that it does not have a surrounding appeals process built into it which is independent of the system itself. If we look at the Commonwealth example, there is the Administrative Decisions (Judicial Review) Act as well as the Administrative Appeals Tribunal Act, which are two options which may be considered for somebody seeking information under the federal legislation. That, of course, deals with federal issues.
However, unfortunately, in both the Administrative Decisions (Judicial Review) Act, as well as the Administrative Appeals Tribunal Act - which is both of those two structures I just referred to - the problem is that they do not extend to operation within the Northern Territory. It is in the definition of both of those pieces of legislation. Consequently, there is no appeal process available under the Administrative Decisions (Judicial Review) Act; there is no appeal under the Administrative Appeals Tribunal.
What appeal process is there available to a person who is unhappy with the decision of the decision-maker in a freedom of information application in the Northern Territory? Well, mediation. Then the person goes and says: ‘I want to have mediation with the decision-maker responsible’. You cannot question the certificate; the certificate is absolutely beyond question. Clause 63 it is quite clear on this. However, it is worth visiting:
- Exemption certificate not to be queried.
- Despite any other act, no person or body is entitled to investigate, inquire into, review or otherwise
call into question -
government information.
Stop, end of message, that is as far as it goes.
So I cannot question the certificate. I can be told: ‘You are not getting the information you want and you are not allowed at law question the certificate itself’. So what exactly am I allowed to do? Well, what I am allowed to do, without my lawyer, is go up to the government department and seek redress through mediation process. So we all sit down, group hug, have a quick talk and at the end of that we are not happy. So I am not happy with the fact that I have been given reasons for a decision, but I cannot question the certificate, so I want to go one step further. So I go to the commissioner. Now the commissioner is a strange and weird and wonderful beasty, and I would love to hear a few more details from the minister as to how he envisages the commissioner, or the office of the commissioner, is going to work.
I am not entirely sure what the powers of the commissioner are. In clause 87, functions of the commissioner, give a whole raft of functions as to what the commissioner can do. I am not going to read out the whole clause but, for members elucidation, I will read out a couple to give you a flavour of the process Clause 87(1):
- In addition to the functions conferred on the commissioner elsewhere in this act, the function of the
commissioner includes the following:
(b) to promote within public sector organisations an understanding and acceptance of the
principles of freedom of information;
(d) to provide advice and training for the public sector organisations on freedom of
information …
Etcetera, etcetera. And those are not necessarily bad functions. In fact, I would have hoped that the commissioner would pursue those functions.
However, where is his power to make an order in relation to making a decision after he has held an inquiry for an unsatisfied customer? The closest I can come - and I am prepared to be corrected on this - is that clause 120(1):
- The making of a complaint under section 104 …
Which is a complaint process:
- … does not effect the operation of the decision complained of unless the commissioner orders otherwise.
That is not a particularly strong power in terms of what the commissioner may and may not do.
This then takes us to the point that I am most concerned with regarding this legislation. Let us say that I am not happy with the commissioner at the end of the day. Now, a commissioner acts as a quasi-administrative appeals tribunal - except I think that his powers are fairly limited and he is bound in some ways by the limiting aspects of this act. But there are, in the system that we have in western law, an idea that you can actually appeal to a court - some body outside of the executive arm of government, and bearing in mind that the commissioner remains within the executive arm of government - where you can turn to that court and say: ‘I need succour, I need some sort of results from the court because I am unhappy with the process that has been available to me’.
This is the difficult part in this legislation. There is no criminal prosecution that flows out of the limits of the legislation other than those sections which specifically say these are prosecutions. Therefore, if the government flatly refuses to send out any information in breach of its act, no criminal prosecution flows from it.
No process other than a question of law itself can be brought to the Supreme Court, so the facts cannot be examined by the Supreme Court, only a question of law arising out of this act. That means that the Supreme Court opens up the problem says: ‘Um, this is a question of law, this is my decision’, and then sheets it straight back to the commissioner so that he can make whatever decision he does not appear to be empowered to make under this legislation.
So, what about the court reviewing the whole process? This then takes me to clause 155 in Miscellaneous, buried deep down in the act, which says:
- Despite any other act and except as provided by this act –
(a) no person or bodies is entitled to investigate, inquire into, review or otherwise call into
question an act or decision of a public sector organisation or commissioner under this act;
and
(b) no proceedings for an injunction, a declaration or an order for prohibition or mandamus are
to be brought in relation to an act or decision of a public sector organisation or the commissioner
under this act.
This section says to me - a member of the public of the Northern Territory - that I cannot go to a court and get an order from the court saying to the government: ‘Government, I want you to go through the process of this act’. I cannot force the government to do anything through a court process. I cannot get a writ of mandamus; which means that I cannot get a court order preventing the government from doing anything, injuncting the government from doing anything, or even to make the government do anything. This means that the Attorney-General is now coming into this Chamber, with his responsibility under section 6 of the Self-Government Act, to pass legislation for the good governance of the Northern Territory, but he is not prepared, in any way, to expose any government department to do its job under this legislation.
That clause 155 is so in breach of the good governance of the Northern Territory that I would suggest there is possibly a case - and I am not a lawyer by any stretch of the imagination - for clause 155 being ultra vires. If not, it is certainly in breach of clause 3, the objects of this act. This act seeks to provide open, honest and accountable government, but there is no way I can get a court, in any function or capacity, to force this government to do anything.
It has a commissioner who, unfortunately, has been given an education role but no apparently real powers arising out of this act. It has a process from search/decision/complaint/mediation through the commissioner’s process, and a very limited question of law process for the courts to go through which all takes time, and no time limits are built into this. If I start with a search now, when will I be able to get a result? Two, three years time? Will that be too late?
I also note very quickly that the minister, at the very last moment today, drops his regulations for this legislation on the Table. They are down here somewhere in amongst the bits of paper. The problem with freedom of information is that it is extremely expensive to access some types of information. If you ask for a fairly wide search, you are going to be charged $25 an hour - according to the Attorney-General - for somebody to go out and do the search for you, and every copy is going to cost me 20. There are cases where freedom of information searches have come back with bills in tens of thousands of dollars. How are Mr and Mrs Average going to possibly afford a larger search? The fact of the matter is that they cannot afford such a search.
This freedom of information bill is part of the cynical process that I used to complain about; and the cynical process is that if you are prepared to do this, then do it properly. This government has the mandate as a result of the last election to govern the Northern Territory. I would never dispute that; I am a great believer in the democratic process. The fact of the matter is that they bring this bill before this House claiming to be bringing freedom of information and open and honest and accountable government to the people of the Northern Territory. What they will have leading up to the next election is freedom of information legislation but, unfortunately, it is not going to go a huge distance.
However, considering that they have the mandate they have, I will generally support the thrust of this legislation. I believe there are some amendments in terms of what they are planning to do in the committee process, and I would urge the government to visit those amendments, as I understand they will be circulated. I would urge the government, in line with the objects in clause 3, to allow those amendments to occur so that they can have a better act which is not halfway as cynical as this legislation here.
Ms SCRYMGOUR (Arafura): Madam Speaker, I would like to make some comments today on the submission made by the Ombudsman on the draft information bill; a submission relied on heavily by the member for Goyder in his speech today.
First, let me place on the record that the Ombudsman’s submission was supportive of the privacy and records management aspects of the bill, describing them as ‘well structured’. In particular, the records management aspect is described as ‘cutting edge’ and representative of best practice from an Australian-wide perspective. The Ombudsman did make a number of comments on the FOI component of the bill. However, I am pleased to be able to report that many of those comments were taken up in the final bill. Maybe the member for Goyder should have checked, or sought a briefing on the bill we are debating today.
Let me comment on some specific issues raised by the member for Goyder. He commented on clause 7 of the bill based, no doubt, on the critical comments of the Ombudsman in his submission. The Ombudsman said he thought clause 7 deliberately attempts to reduce the significance of the right to access, and hence its importance in the process of democratic government.
Maybe the member for Macdonnell should stay in and listen to some of this, because they stand up and I think some of these things are deliberately to mislead the public. However, this displayed misunderstanding of the effect of clause 7: that clause simply made it clear that the act is not intended to create any independent course of action, such as a tort of privacy for which someone might sue or be sued. FOI is not about creating new courses of action for more litigation. It is important to understand that the clause does not diminish the statutory right of access created by the act itself. This is made clear by an addition to clause 15, Right to access government information. It reads:
- Every person has a right, enforceable under this act, to access government information other than
personal information.
Clause 16 confers the same right on an individual to access their own personal information. It is no different, in effect, than the provisions in other jurisdictions that also confer a right of access, but limit that right to that particular information act. Again, I say that maybe the shadow Attorney-General should have sought a briefing.
The Ombudsman was also concerned that the exemptions were broad-based and do not make the public interest test the overriding central core to the legislation. However, all the exemptions in the bill are based on a public interest test; they are not blanket exemptions. However, to ensure there is no misunderstanding, the final bill has been amended to make this absolutely clear. Let me quote from the relevant parts of the objects and purposes of the bill:
(1) The objects of the act are -
(a) To provide the Territory community with access to government information by -
(i) making available to the public information about the operations of public sector
organisations and, in particular, ensuring that the rules and practices affecting
members of the public in their dealings with public sector organisations are readily
available to persons affected by those rules and practices; and
(ii) creating a general right of access to information held by public sector organisations,
limited only in those circumstances where the disclosure of particular information
would be contrary to the public interest because its disclosure would have a prejudicial
effect on essential public interests or on the private and business interests of persons in
respect of whom information is held by public sector organisations;
To ensure the shadow Attorney-General understands this important legislation, let me give some examples where disclosure would not be in the public interest. The exemption in relation to security and law enforcement, for example, covers cases where release would endanger the life or physical safety of a person, or prejudice the investigation of a breach of the law. These are clear cases of circumstances where it would not be in the public interest to release information.
The Ombudsman was also supportive of the New Zealand FOI legislation. The Ombudsman’s submission suggested that a public interest test similar to that within the New Zealand legislation would be the most appropriate premise upon which to proceed. However, our Information Bill, in fact, proceeds on an almost identical basis in terms of applying a public interest test to exemptions. I would also like to point out that the New Zealand legislation, like the bill we are debating today, identifies absolute exemptions. They are referred to as conclusive reasons for withholding information.
The Ombudsman’s submission also made a number of valuable points about the exemption certificates which, again, have been taken up in this bill. The Ombudsman was critical of the ability for the certificate power to be delegated to the CEO of an agency. This has been changed in the bill. Now the power to issue exemption certificates lies solely with the Chief Minister. As members have already heard, this is appropriate. The powers will be used rarely, and it follows the WA model where there has not been the need to issue a certificate. The draft information bill has been formulated and then followed by taking into consideration the vast amounts of previous work that has been produced on FOI, both in Australia and overseas.
Mr Rick Snell, a national expert on FOI and an academic based at the University of Tasmania, has commended the government on the amendments made to the bill following public comments. It is a pity that the member for Goyder did not seem to be able to catch up with those critical changes.
I am pleased to see that Territorians will finally have access to a state-of-the-art freedom of information regime. That access has been achieved long after all other Australians, and I am proud to be part of a government which is delivering on another key plank of its election commitment to open and accountable government.
Mr BURKE (Opposition Leader): Madam Speaker, it is certainly not my want to criticise the member for Arafura because I believe that she has immense potential in this Assembly. Nor do I wish to try and lecture her on how she should conduct herself but, it is disappointing, may I say - one of the privileges of government is that you have a wealth of advisors, many of them lawyers, who can sit back and scribble out responses to concerns that have been raised by the opposition. It is very easy for a backbencher to be handed the script and the backbencher stands up …
Ms Scrymgour: I find that most insulting. What, you do not think people have the intelligence to do it?
Mr BURKE: Well, you have been pretty insulting to the member for Goyder and a few others in your comments so, if you find it a bit insulting; what you throw is what you get back.
Ms Scrymgour: No, no, saying that I could not write this …
Mr BURKE: The member for Arafura actually belittles herself, I believe, by not taking the time herself to look at the act in detail, prepare her own comments and contribute to this debate herself, because really, the strength of democracy - as the Labor government is so keen to instruct us upon - rests pretty well upon the efforts of the members in this Chamber. It does not rest upon the efforts of public servants who sit down and do most of your work for you. I believe if more of these brand new backbenchers in government - who came to this Chamber with such lofty ideals on how well they were going to contribute to the Northern Territory - did a little work themselves in looking at just what their own executive is bringing forward into this Chamber, and how that compares to the aspirations and utterances that their own party and now, their government, is making and how that sits with the comments that they themselves have made in the electorate and continue to make. Probably, at the very least I would think, there would be pause for thought as to where they are heading in some of the comments they make when people shove a script in front of them.
This legislation will be well received, I would imagine, by those who are interested in the fact that the Northern Territory government has finally proceeded to bring forward FOI legislation in the Northern Territory. It is something …
Dr Toyne: It is over one year. How long did it take you?
Mr BURKE: It is something that I believe was inevitable. Certainly, in my time as Chief Minister, I took the opportunity to progress a great deal of the work that was done on this legislation. If the Minister for Justice and Attorney-General is nodding, so he is certainly not going to be churlish enough to suggest that a great deal of that work was not done by the previous government.
The Minister for Justice and Attorney-General said that it took great courage for this Labor government to bring forward this legislation because the CLP government was too cowardly to bring it forward. Okay, that can be your interpretation of it and you can stick to that. The reality, whether you accept it or not, is simply this: that given the expectation that the Labor Party gave to Territorians as to what sort of FOI they would introduce if they came into government led to a belief that, when they did bring forward FOI legislation it would be certainly at the forefront of any other legislation in Australia, and they have had the opportunity to do that. They have had the opportunity for more than 12 months to look at the work that the CLP did, refer to all of the submissions that have been made, interrogate the legislation that has come forward in other states and see where they could improve on it, and improve on it in a way that the other states themselves would sit back and say: ‘Gee whiz, the Northern Territory government was the last government to bring forward FOI. All of the other governments have had their legislation in place for many years; we have tickled around it at the edges. A whole new benchmark has been set by the Labor government that is now showing states like Western Australia and New South Wales that, if you are going to move forward with new FOI legislation, here is the opportunity to do it and this is the way you do it’.
It seems to me to be disappointing, to say the least that, when given that opportunity, the most that the Labor government can do is refer to the fact that it pretty well meets the legislation that exists in some other states, which they know from their own research have been roundly criticised by those who take an interest in FOI matters. Certainly, universally, all of those jurisdictions have been criticised for the fact that the exemptions are too broad, the actual access of information is quite limited etcetera. So this is not a courageous act that the government is doing today, it is actually going through the motions.
It is being able to say to Territorians who have some faith in politicians: ‘Now you have FOI legislation, aren’t we great? There is the FOI legislation, everything will be sweetness and light’. The reality is that you know it will not be sweetness and light for them. You know that, for those who wish to seek access to information other than information on themselves, it is going to be extremely difficult. You have done everything possible in this legislation to make it as difficult as possible and, for that, it is disappointing to say the least.
On issues of records management and privacy information, you yourself know that, almost without a word change, that was all prepared prior to the election. There might be one or two word changes in there. The real issue was how you got access for government information and how well that access would transpose in fact, rather than in words.
Rather than me trying to suggest what the benchmark should be, the benchmark was set by the Ombudsman who, in his submission, did no more than really encapsulate this whole concept of FOI and how it needs to be translated into legislation so that it actually does meet the expectations of the general public. What he basically did was set a number of comments about the draft legislation, with the expectation that the act itself would change from that draft bill. So, in terms of how we then analyse this act today, it seems a pretty simple process to me; and that is you look at the draft bill, you refer to the weaknesses in the draft bill coming from the Ombudsman’s comments, and see where this new act actually reflects those comments, has improved upon them, and brings forward new legislation. The fact that the government has chosen not to do that is one thing; the real issue is that the government itself said it would.
You are the ones who set the benchmark, you are the ones who said you would take the submissions from the public and would respond to them. You are the ones who said the Ombudsman’s comments would be taken into consideration and would be reflected in the new bill. People like the member for Sanderson was quoted in the Hansard as saying:
- In this new legislation we would do such things as making sure …
I have just lost his quote.
- Our freedom of information legislation will ensure that requests are responded to within time lines.
Labor will also address the issue of ‘commercial confidentiality’ that has been used to conceal
government activities in some jurisdictions to restrict the information provided in response to
inquiries of concerned citizens.
Look yourself at what you have in terms of the exemptions for commercial-in-confidence, all of the caveats that you have put on the ability to get access by so-called commercial-in-confidence documentation that the Auditor-General himself has said should not be privy to government, should be accessible. Certainly, from the expectation of your Labor Party, I can only refer back to what your own documentation said, and this is quoted by the member for Sanderson, what the freedom of information whistle-blower legislation that the Labor Party would introduce - it is on page 1060 and 1061 of Hansard debate Wednesday, 6 March 2002 and he said:
- Labor will address the issue of ‘commercial confidentiality’ that has been used to conceal government
activities in some jurisdictions to restrict the information provided in response to queries from concerned
citizens.
However, if you go to the act itself and you look at the exemptions in the act, one of the large exemptions that there is commercial-in-confidence information. It gives you all of the reasons why you will not get access to commercial-in-confidence information, if that meets the parameters under section 57 of the new act, Commercial and business information, research, examination papers. It goes through a whole series of six subclauses with sub-subclauses; a whole series of reasons as to why the public will not get access to that information. Now, if that meets your own parameters, fine, go out there and explain that to your Labor Party supporters. Certainly, on the utterances that you made prior to coming to government, and the legislation that you bring forward into this parliament, it falls short of the test. It falls short of the member for Sanderson’s test that he himself put in.
The Minister for Justice and Attorney-General, in his contribution to the debate, said:
- We now have almost a sacred responsibility …
… to take the output of many, many groups that have responded to the chance to assess the discussion draft
and come back to us with their issues.
I will table …
Which you have not done:
- I will table an up-to-date list of the submissions. I think there are just on 50 now either in hand or
on the way …
You went on to say that, basically, you were going to incorporate all those submissions into your new legislation. Various comments in there to say that this is in draft only, this act: ‘It has a long way to go, there really has to be a lot of public consultation yet, and when we bring forward the eventual act it will be something that everyone will be proud of’.
Let us see where this act actually differs from the draft. In doing that, it seems to me that it needs to meet the parameters that the Ombudsman himself said. He said with regard to the draft legislation - legislation that was prepared by the CLP when in government, legislation that I believed would not meet the expectations of Territorians, would be attacked and attacked soundly by the Opposition at the time - let us see where this legislation actually meets the Labor Party’s own test because the Ombudsman, when speaking about the draft, said:
- I believe that the proposed bill is inherently flawed and misguided.
He goes on to say:
- From my understanding of the current state of FOI legislation and particularly some of the law reform proposals
in regard to FOI, the proposed bill, together with the exemptions as proposed within the bill, are headed in a
direction whereby any legislation will fail to meet the requisite requirements of basic FOI design principles.
- Fundamentally, the draft bill fails to provide any real opportunity or scope for the public to access government
information, to participate in the decision-making process and, ultimately, to influence government policy and
procedures. This is, in my view, a key focus and value of FOI legislation in a truly democratic society.
Mr O’Gorman this morning - I know the Minister for Justice and Attorney-General said he is not an expert. I can tell you what he is not: he is certainly not a supporter of Denis Burke, that is for sure, because he and I clashed on many occasions over mandatory sentencing. However, even someone like Mr O’Gorman says the Territory legislation has picked up the worst, not the best, the worst of the regime from other states.
So you can sit and grin. You are the guys who have to sell this stuff. Enjoy your time in government, but try and be honest with yourselves, and that is that your draft legislation has not changed one iota. The only area where your draft legislation has changed has been in terms of more exemptions, more areas where the public service can restrict information, and ultimate power to a politician. We have seen that before: a pretty glaring example of the trust that Australians have for politicians was the republican debate. Remember the catchcry of those who were against a republic? Let us not have a politician’s republic. What they have with this legislation is a politician’s FOI, and a politician’s FOI is FOI that leaves ultimate power in the hands of politicians. If you could not even improve it to ensure that you had an independent commissioner who had the ultimate authority and say on what would be released and what would not be released, I believe you will fail miserably.
Regarding the Ombudsman’s comments about the draft legislation, he said that the bill failed in a range of areas - and this is the draft bill he is talking about – and the range of areas he laid down were:
- The lack of significance in terms of the purpose and objects of the bill; the failure to recognise the importance
of the right to access as a major component of a democratic government …
That is not a legal right but something else:
- … the broad-based exemptions; the very powerful tool of exemption certificates not being able to be reviewed
in any way; the exemption of deliberate process information under clauses 48 and 50 of the draft bill; the negative
focus on disclosure generally; the restrictive powers of the Information Commissioner; and the rigid formality
of the complaint process.
Now, when he looked at the draft, he said:
- This draft doesn’t meet the mark. This draft fails in terms of being FOI legislation that any jurisdiction should be
proud of, and it fails in the areas that I have laid down.
If you look at the objects clause in the draft bill, and in the actual bill that has come into the Chamber today - we are talking about Part 1, clause 3 of the draft bill and the same clause of the actual act. The words have changed slightly. If you actually look at the way the words are constructed, they are constructed differently, so I do not dispute that. And I do not dispute the lofty ideals that the objects of that particular clause state. But that was not the Ombudsman’s complaint; that was not the concern he had. Again, it was disappointing - particularly if it came from a lawyer who wrote the script for the member for Arafura - to suggest that that is what the Ombudsman was concerned about. He was concerned about the fact that it is one thing to have lofty statements in an objects clause, it is quite another thing to see the objective of those objects flow through in the content, structure and intent of the bill. He said it failed because the objects were in total contradiction to the actual construction of the bill.
Now, that has not changed. The wording of Objects has been construed slightly differently, the intent of the objects have not changed, but the structure of the bill - the way the bill deals with those objects - has actually become worse. Certainly, on that test alone, you have failed in meeting the Ombudsman’s parameters. He says that the objects in the bill should fail in favour of that person seeking information. The balance should not be a balance in fact, it should be a skewed balance; it should be a balance that is skewed in favour of information being provided, rather than information being withheld. That is what he wanted to see coming through in the bill, and that is what is not there in the way the bill has been constructed.
So, the first one: ‘lack of significance in terms of the purpose and objects of the bill, the failure to recognise the importance of the right to access as a major component of a democratic government’, I believe this final bill has not met those parameters, and it simply has not met those parameters because, in fact, it has hardly changed at all, in words or otherwise, from the original draft bill.
The next point he made was that the broad-based exemptions in the draft bill did not meet the mark. In the draft bill, the broad-based exemptions are in Part 4. Those exemptions that are supposedly in the public interest as to why information will not be provided, flow through from clauses 42 to 56. In the actual act, those exemptions are from clause 43 to 56. I have been through all of those exemptions and all I can say to you is that, word for word, they do not change except that …
If I could have your leave for a moment, Madam Speaker, to find my place in the bill. In the bill, the exemptions that will go through are: clause 42, public sector organisations not required to provide access; matters confidential to government are then listed. The reason I got confused; I was on the draft act.
If we go to the actual act, in clause 45 we see: ‘Executive Council, Cabinet, Territory economy’. In looking at those exemptions we now have two additional subclauses. In the draft bill you have subclauses (i) to (v). We now have two more exemptions: subclause (vi) which says an additional exemption would be:
would disclose a communication between ministers about the making of a decision or the formulation of a
policy if the decision or policy is of a kind generally made or endorsed by an executive body;
and (vii):
- was brought into existence to brief a minister in relation to a matter the subject of consultation between
ministers about the making of a decision or the formulation of a policy if the decision or policy is of a kind
generally made or endorsed by an executive body …
I ask the Attorney-General, in the submissions that he received, where was the submission that said you would need to put in those two subclauses? I am particularly interested that, not only did the Ombudsman say that the exemptions were too broad in relation to clause 45 in the draft bill but, as a result of this culture of getting more information out to the public, in that area alone the government has seen fit to put in two more exemptions.
I say it in this context: in government, I cannot remember the number of occasions when the member for Wanguri, as shadow health minister, stood in this parliament and used draft reports that had not actually been endorsed by the department let alone actually made their way to the Cabinet process, as ways of criticising government; of ways of saying: ‘This draft policy reflects what you intend to do in government’. He was quite strong in their right to have that documentation and to bring that documentation to the public, either in this Chamber or in press releases, as allegations that this is what the government intended to do - knowing full well that those draft documents were simply that: they were drafts, and had not been endorsed by the department, did not reflect government policy and certainly, had not even made their way through the Cabinet process at all.
Under your legislation, a simple thing like that is exempt. There is no way in the world, under your legislation, you can go and ask for that sort of draft and get it provided for you, because it discloses a communication; it discloses information about the deliberations. If you look at the ‘Executive Council, Cabinet, Territory economy’ exemptions, clause 45, there is nothing, practically, with regard to government policy; the making of government policy; the correspondence that occurs with relation to possible government policy; the communications, written or otherwise, that exist with regards to the formulation of government policy, that can be disclosed. It simply fails. It fails your own test, it fails the Ombudsman’s test and, it is quite simply, more restrictive than what was there before.
There is an additional one to the draft, clause 47. I would ask the Minister for Justice and Attorney-General - I am sure he can explain it - I do not necessarily criticise it, but the new clause 47 refers to information exempt under corresponding FOI laws so that, if information:
- … that originated with, or has been received from a person, appointed or a body established, by or under
a law of the Commonwealth or of a state or another territory …
that:
- … person or body would not be required to disclose the information under the corresponding FOI law of
that jurisdiction.
It seems to me that is problematic. I can certainly see times when you would not do that, but I could also see times when it would be in the interest of the Northern Territory that that information would be provided, notwithstanding the restrictions that might be there in other states. If it was in the public interest, it should be provided. But under that exemption, it gives a blanket exemption to say: ‘Notwithstanding any information, it is not in the public interest for that to be revealed’.
So, in comparison with the draft bill and the actual bill, what we see is the same exemptions except there have been two additional exemptions imposed on the information that can be provided from the Cabinet or government process, and an additional exemption with regards to information that could come into our possession from another state that may have different FOI legislation.
He talks about the deliberative processes as a criticism that the deliberative processes that people have to go through to get information are too harsh. In making that criticism, remember he is referring to the draft legislation. When we actually see what the government has brought forward, not only have they kept, in its entirety, everything that was in the draft legislation, but they have now added under clause 52 a whole new subclause (5). And the whole new subclause (5) adds to, gives guidelines to, the public service that essentially says: ‘When in doubt, when not clearly specified in this legislation that it may not be in the public interest to provide it, here are a few guidelines that will help you say “no”’. Not say ‘yes’, say ‘no’.
It is worth recording this in Hansard because most Territorians will not have this legislation and they will not get a chance to read it in its detail. But the guidelines simply says in clause 52(5):
- To show that, in a particular case, it is not in the public interest to disclose government information … a
public sector organisation may have regard to the following factors:
(a) the more senior the person who created, annotated or considered the information and the
more sensitive the information, the more likely it will be that the information should not be
disclosed …
So, that is another way of saying: ‘We will not burn the CEOs or the senior echelons, but you can happily burn any junior who might have done something’. What a crazy comment to put in there! It is nonsensical to my mind. It adds to the culture of preventing rather than aiding information being released, and I wonder why it is put there in clause 52(5)(b):
the disclosure of information that was brought into existence in the course of the development and subsequent
promulgation of policy tends not to be in the public interest;
Just listen to that:
- the disclosure of information that was brought into existence in the course of the development and subsequent
promulgation of policy tends not to be in the public interest;
Well, I would have thought it was entirely in the public interest to find out about information that was brought into existence that had an impact on the development of government policy. I thought that was what FOI was all about. It was people saying: ‘Why did you do this? What information did you have that led you to do this? Can you tell us about that?’ An open and accountable government, I would have thought - in your own words, not ours - had nothing to hide. But it seems that the whole thrust of this says: ‘You’re damned tootin’! Whether we think we have nothing to hide or not, don’t give it to them’. If that is the culture of FOI you want to produce, well, it will be a very disappointing culture. It goes on to say in clause 52(5)(c):
- the disclosure of information that will inhibit frankness and candour in future pre-decisional considerations is
likely not to be in the public interest;
So, do I take it from that that a comment on a report with regards to saying: ‘This information is incorrect’, shouldn’t be given any authority by government? That sort of information would be precluded because, somehow, it might prevent a public servant from making those annotations in the future? I would have thought the culture of the public service is this: ‘Do not write anything if you do not want it out there. If you do not want it out there, go and talk to someone’. If you have a culture of government that involves minutes and recordings and data bases and everything, people are smart enough to know that, if you put it on paper, it might eventually end up out there for someone to read it. The culture of the FOI should be to encourage that thinking, whereas this FOI that you have introduced encourages a culture that says: ‘Do not worry about it. Keep doing it the way you are doing it because, by these catch-alls, you can be assured that it will not get out there to the public’.
It goes on. All of subclause (5) I believe is a clear indictment, not only of the structure, thrust and intent of this FOI, it really demonstrates to me that, somehow, this Labor government has been nobbled. I thought this Labor government had a bit more of the intestinal fortitude they have said so often that they have. Where is the intestinal fortitude that you take the draft that has been prepared for you by the old, awful CLP government, you go out for public consultation, you talk to your public service and the end result is: ‘Whoops! Add more exemptions, give more guidelines to the public service. Just get something out there that is called FOI, and if we can get something out there called FOI we can con the great masses out there that, somehow. they have access to information’? Of course, they have not.
The Ombudsman says in his parameters:
- The very powerful tool of exemption certificates not being able to be reviewed in any way …
The way the government has responded to that criticism is to take the exemption certificate authority away from the Secretary of the Chief Minister’s Department and put that entirely in the hands of a politician. The simple fact is this: again, this is an opportunity lost. It is no good saying: ‘What is your problem? It is in the hands of a Premier of Western Australia, it has hardly been used, so it is good’. This is supposed to be the new, enlightened Labor Party. Why couldn’t you, and why won’t you …
Madam SPEAKER: Order, Leader of the Opposition!
Ms CARTER: Madam Speaker, I move an extension of time to allow the member to complete his comments.
Motion agreed to.
Mr BURKE: Madam Speaker, I accept the fact that the Minister for Justice and Attorney-General and his Cabinet may have been led along on the fact that: ‘They have this in Western Australia, it has hardly been used, so let us do it here’. All I ask you to do is consider the amendment that we have proposed. It is a very important amendment. It seems to me it goes to the heart of this legislation because it refers to clause 63 of your own act. At the moment in your act, you have the exemption certificate being entirely in the hands of the Chief Minister, an exemption certificate that, notwithstanding the fact that it has never been used or is rarely used, cannot be reviewed in any way, requires no explanation, and there is no appeal.
If you follow your own logic, minister, I would have thought that, seeing it has been rarely used in the past, why wouldn’t you allow the Information Commissioner to have some ability to investigate that rarely made decision; to inquire into that rarely made decision; to review or otherwise call into question that rarely made decision? If you cannot support that amendment, you have been nobbled. If you cannot support that amendment, you are not bringing forward FOI legislation that is of any great note in the Northern Territory.
You have exemptions right through this legislation to ensure the information cannot be provided, and you have the ultimate veto in the hands of the Chief Minister. Notwithstanding what you say out there, it will not take long, once people start to use this legislation, that they realise that the avenues of getting information are not only costly but they are almost prohibitive in terms of the information that can be provided. When it comes to anything that is really sensitive to government, that might embarrass government, the sorts of information that FOI applicants seek to access, the sort of information that Australians and Territorians - you believe - think they should access and think this legislation will give them, has the ultimate veto in the hands of a politician.
If Territorians believe that that is a better method than to put it in the hands of an independent commissioner, that is most disappointing and unfortunate. On those lines, I would say to the Minister for Justice and Attorney-General and the government this: if you support the simple amendment that I have proposed, an amendment that simply asks that the Information Commissioner be able to inquire into, report or investigate that very rarely used mechanism - which you have repeated so often - if you refuse that amendment, your FOI legislation does not stand. It just does not stand; it is more secretive than the draft, it is more constrained in the drafted terms of the procedures and access and processes the people have to go through, and it puts ultimate power in the hands of a politician, which is certainly not the intent - or should not be the intent - of politicians, because FOI is supposed to do away with those particular powers.
There is another one that I refer to, and that is clause 130. I would ask the Attorney-General again why - there may be good reason, once again - the appeal to the Supreme Court in ‘Appeals from decisions of Information Commissioner’ has now been changed to refer to ‘a question of law only’. The change - you might wish to help me - what is the reference from the old draft? Is it 103 in the act. In the draft - I cannot find the wording at the moment - I think it says ‘on a serious matter only’. In the act itself it says ‘on a question of law only’. I ask the minister to explain to the House why, when it comes to an appeal against information being provided, a decision has been made by the Information Commissioner, and the appeal against that information goes to a higher body such as the Supreme Court. Why could it be on a question of law only because, as I understand it, this is not legally binding in terms of caveats anyway. It seems to me that there is no appeal, in fact, if it can only be an appeal in law only. I ask you to enlighten us in that regard.
I will not labour it any longer. The government is intent on putting through this legislation. The government will certainly sell that legislation to the public as best it can. There is no way in the world that the public will get any indication as to the workability or otherwise of this legislation until some months or years hence, when people start to access information and realise how limited that access is. Then, I believe that, sadly - I say sadly, not from the CLP’s point of view but from the Labor government’s point of view - people will quickly realise that, when given the opportunity to bring forward FOI legislation, a government that has no preconceived values, that could have led the way for Australia, has failed miserably. It has failed miserably on a pretty simple test that, as one commentator who has encapsulated the views of many said, failed at every one. The legislation that has been brought forward in the House is more restrictive than the legislation they brought forward in draft.
The government is keen to say that somehow Burke is now a champion of FOI - the CLP government had 27 years to bring it in and they did not do it. The champions of FOI are those who expect to get access from FOI legislation, and get good access. I have always believed - and I am not afraid to say it now in this Chamber - that FOI legislation means nothing if it is just words. To walk out there to the public and say: ‘We have FOI legislation, aren’t we terrific?’, all it does is mislead people. It gives them the feeling that they will have greater access to government information than they had in the past, when it seems to me - and one of the areas that I have felt that legislation such as this would do in the Northern Territory is - it does not provide a step forward at all.
What it does is encapsulate in legislation all the reasons why you do not give out information. It encapsulates it in a way that, if it is not there clearly written, you will not provide it. There is a whole range of broad guidance as to why you should not give information to the public. But that is not the culture that exists in the Northern Territory now. If you can point me to areas where the previous CLP government has withheld information that was reasonably expected to be given …
Dr Toyne: Where would you start?
Mr BURKE: I am happy, if you want to give me examples, there are your advisors; the advisors might be able to give it to you. They could certainly give, in my time as Chief Minister, information that should have been made available to the public. Under your legislation – and point to the clauses in your legislation that would then allow that information to be made available to the public, and would be made available in the future - I would be interested to hear it - information that would not have been given through the Auditor-General; through a PAC inquiry; through an MLA writing to a minister on behalf of a constituent; but information provided by a minister, Ombudsman or whoever as a direct reference to an inquiry from a constituent.
This legislation is supposed to take a large leap forward from that culture, and I cannot see that it achieves this. It certainly did not achieve it in the draft; it certainly has not achieved it in the act that has been presented to the parliament. Certainly, in having good FOI legislation in the Northern Territory that the government said it would put forward, I believe they have failed their own test. They have not failed my test, they have failed their own test, and the test that Territorians expected of them in bringing forward that sort of legislation.
Mr VATSKALIS (Transport and Infrastructure): Madam Speaker, I speak in support of the freedom of information. I have to admit that the Leader of the Opposition may be right - no legislation is perfect. Certainly, our legislation is not perfect, it is not 100%. I do not think any parliament has introduced any legislation, ever, that satisfied 100% of the population. At the same time, it surprised me that, all of a sudden, the CLP have become the champions of democracy, of freedom of information. They want everything done now, and they want it in a perfect, open way - everything to be open.
Ms Carter: Our job is to be a scrutineer of your work.
Mr VATSKALIS: That might be true but, at the same time, I recall very well that, as early as 1999, on 2 February 1999, the Leader of the Opposition stated publicly - and it is recorded in Hansard - that he did not believe in FOI legislation; he thought it was unnecessary. It did not suit the Northern Territory; the Northern Territory did not want to know things about their government, did not want to have information about how things worked in their government. I certainly do not believe that is what Territorians want, and I do not accept that. What Territorians wanted, because we went to the elections with a platform that said we will introduce freedom of information – it did not - and the ultimate test was on 18 August 2001. The outcome is well known.
There is a government here that is committed to freedom of information and put in place the first freedom of information legislation in the Territory. If you are so serious about freedom of information, you had 27 years to do it – it was never done, because Territorians did not want it – that was your opinion: because this is the Territory, because Territorians were second-rate citizens. They will soon have the same rights as everybody else in Australia who have their freedom of information.
I consider this legislation is very important. I grew up in a country where you never questioned the decisions of the government, ministers or prime ministers; you were not entitled. As a citizen, you had rights and obligations, but your rights were not extended to question the government of the day - whatever it was - about their decisions. Coming to Australia, I was impressed by the openness of the Australian government - it does not matter whether it was Liberal or Labor - by their willingness to be questioned by the citizens, and to make sure that this happened by the introduction of appropriate freedom of information legislation in parliaments in other states and territories and the federal parliament.
So, today I am very, very pleased to see freedom of information legislation being introduced in the Territory. This is done by the Labor government because we responded to the wishes of Territorians and we have delivered. It might not be perfect, it might have some shortcomings. However, Territorians who want freedom of information are prepared to accept that and, certainly, if they are not satisfied with the legislation we put in place, would talk to us and, as a government that listens, we are prepared to come back and have a look at what was proposed and, if necessary, make the necessary amendments. We are not afraid to come back and say: ‘Yes, we did not do that right, we might do it better’. However, my belief is this is legislation that is going to work. This legislation is the best freedom of information legislation ever introduced in the Territory. As a matter of fact, it is the only freedom of information ever introduced into the Territory and it is 27 years too late.
The Leader of the Opposition and the shadow Attorney-General made comments about the certificate of exemptions. It is very interesting to see that, out of 12 categories ‘not in the public interest to be disclosed’, there are only four categories that we can absolutely grant certificates of exemptions, and this can be done only by the Chief Minister. They are very concerned that there is no right of appeal, there is no right to review but, at the same time did not mention that actually every year the Information Commissioner will come and state in parliament how many certificate of exemptions have been issued and how many times these certificates have been reviewed and been reissued. So there will be some form of assessment. Certainly, I do not think that the Chief Minister would be that brave to issue certificate after certificate for some of these issues.
At the same time, looking at the certificate of exemption that would be issued for different categories for matters not in the public interest, I have no problem with extra documents being excluded and certificates of exemption being issued. I have no problem, as a citizen, for briefs and drafts for Cabinet to be excluded. I also do not have a problem for security and law enforcement issues and matters to be excluded through a certificate of exemption. Definitely private and cultural information has to be excluded and I have no problem with certificate of exemption being issued for these issues. I repeat that, not as a parliamentarian, and a member of the Labor Party, but as a citizen. If I was out there I would still not have a problem. I am certainly going to support the freedom of information and these certificates.
This legislation creates a legal right of access to government information and personal information held by government. Of course, in doing so it strikes a balance between an open house approach and the need for government to protect privacy of individuals.
Several tests are in place and these would be administered, essentially, by the Information Commissioner. The aim would be to ensure accessibility. To ensure that citizens also have a right to privacy, the government has utilised the modern provisions of the federal legislation. It is already in place in the federal parliament. We had no problem to find some of these clauses of the federal legislation that are applicable to the Territory, and either adopt them or incorporate them appropriately.
A series of the commercial privacy principles will also apply. My colleague, the Attorney-General, has outlined those same principles for privacy. Essentially, they provide rigorous guidelines for the way organisations collect, store and use private information, for access by the relevant person, to that information. They also provide for the ability of the person to correct that information where it is wrong. That is a first for the Territory, and that is a significant piece of legislation that will not only protect the privacy, but sometimes governments collect data and a lot of this information is not absolutely correct. That piece of legislation will give you the ability and the right to correct this information where they are wrong.
There is no doubt the implementation of this legislation will take some time and careful thinking. There is much that needs to be done for us to be prepared for the legislation, and to make sure the legislation can work as we intend. Much has already happened in preparation of this legislation. I asked the Attorney-General, and he said elements of the legislation will be phased in over time to allow for the public sector to become conversant with it.
I noticed the Leader of the Opposition was talking about the public sector and how is it going to prevent information that it thinks is not in the public interest, and that the answer would always be ‘no’ instead of ‘yes’. That may happen in a public service that works with the CLP frame of mind. In this government, the public service will work totally different. Let us not forget that the public service worked very closely with the relevant minister and each minister might have something to say if the public service continuously refuses information to the public, claiming that it is not in the public interest for various reasons, and at the same time, against the commercial-in-confidence that seems to create a lot of problem with the other side.
I wonder how many times the other side, as a government, did not disclose information claiming commercial-in-confidence, because they signed an agreement, a contract with the company, that they could not disclose trade secrets; they could not disclose tendered information. If they are brave enough, they can come out and tell us how many times they did not do that, or the number of times they did. Then they have the right to actually accuse us that we are going to use commercial-in-confidence information to stop anything being disclosed in the public.
As I said before, I grew up in a culture that did not question governments, courts or ministers. I have lived in Australia 20 years and, suddenly, I have learned a different way of living and I want to question government, as a member of parliament and as a private citizen. I will question government when I am given the opportunity or I have something to question government about. I believe freedom of information, as introduced by the Attorney-General gives me the capacity, the ability and the right to question government and, certainly, it will give me the ability to get the appropriate answers.
As I said before, no legislation introduced in any government of the world is 100% perfect. Legislation is made by human beings and humans are fallible. However, at the same time, this is the best legislation with regards to freedom of information introduced to the Territory - it is the only piece of freedom of information ever introduced in the Territory. I am very pleased to say that it is one very good piece of legislation.
On the other hand, this piece of legislation produced today in parliament is not going to be cast in stone. It could be reviewed in two years time when we hear the people, the citizens of the Territory, A members of parliament, we have another opportunity to come back and criticise it, introduce amendments, find out if it works properly, see what the shortcomings are, and try to fix it.
I am very pleased to be able to speak in support of the Information Bill and I commend my colleague, the Attorney-General, for the introduction of the bill.
Mr WOOD (Nelson): Madam Speaker, I would like to preface these comments by congratulating the government on this bill – well, maybe most of this bill that which deals with records management, privacy and the creation of the Office of the Information Commissioner - although I have an amendment to propose in relation to the appointment of the commissioner and that basically deals with making sure that the commissioner is independent.
My criticisms lie mainly with the sections dealing with access to information and exemptions, especially in relation to government processes, policy making and decision-making. I will be moving a number of amendments relating to exemptions at the committee stage. I thought I should make a note relating to the question I asked during Question Time regarding a summary of the 60 submissions. The Attorney-General gave me a list of submissions received, but I do not believe that that was the intention of what he said in parliament on 6 March:
- What I will undertake to do is we will get a working summary of all 60 submissions which will be distributed
to all members providing information on the issues that have been raised without identifying the source,
organisation or individuals. So that is what I will do. That will get everyone across the issues to the extent
that we are.
I do not believe that that summary did occur. Without having that summary, it has been difficult to look at what other people have said when they have put their submissions in, and perhaps add them to my comments today.
What rights will members of the public have to access information? In 1994, the Australian Law Reform Commission reviewed the Commonwealth’s Freedom of Information Act and some of its general comments are worth noting. The commission believed that government information was a national resource, that information was an important defence against corruption, and that access to information was closely related to the notion of a healthy democracy.
It said that the aims of FOI were to increase public scrutiny of government and increase government accountability, leading to improved agency decision-making, to increase public participation in the process of policy making and government. In New Zealand’s Official Information Act the purposes are listed as:
- … enabling the people of New Zealand more effective participation in the making and administration of laws
and policies, and to promote the accountability of ministers of the Crown and officials and thereby enhance
respect of the law and promote good government.
The Australian Law Reform Commission recommended the objects of the federal law should explain the purpose of the act; that is, to provide a right of access that would enable people to participate in the policy and decision-making processes of government; that would open the government’s activities to scrutiny, discussion, comment and review; and would increase the accountability of the executive.
The South Australian government has just tabled new objects for its FOI act that explain the purpose of the act as promoting openness and accountability, and emphasising the importance of government held information being made available to the public.
Despite the Territory Labor government’s promise of more open and accountable government, it seems reluctant - unlike the new South Australian Labor government - to enshrine those words in its legislation. Instead of a list of purposes like those in the New Zealand act, or objects like those recommended by the Law Reform Commission, in the Territory we have a list of objects that do not mention processes, philosophy or policies - only a right of access to information. However, I note that it is not a legally enforceable right of access.
The Victorian Freedom of Information Act goes a lot further than the Territory’s bill in setting out the responsibilities of government agencies in providing general information to the public, so that the public knows what an agency does and whom it consults. The law requires agencies to publish their decision-making powers and other powers that they hold affecting the public. They must state the documents they hold and any material that they publish. They have to list all the boards, councils, committees or other boards that have been set up to advise them, and whether their meetings are open to the public, and if the minutes are available for public inspection. I imagine that, if all the Territory’s agencies started meeting such requirements, we would double the amount of information in the public arena without anyone making an application under the new information laws.
What is the impact of the wide-ranging exemptions? The Australian Law Reform Commission found that the Commonwealth’s Freedom of Information Act had had a marked impact on the way agencies made decisions and recorded information. It said the act had focussed decision-makers’ minds on the need to base decisions on relevant factors and record decision-making processes. However, you have to ask to what extent a member of the Territory public is going to have access to decision-making processes and whether this legislation will have any impact on the way agencies make decisions.
Part 4, Division 2 exempts Cabinet documents from disclosure, and I acknowledge that the provisions are generally in line with other FOI legislation around Australia, and that they protect the convention of the Westminster system; that of Cabinet confidentiality. The idea is that Cabinet deliberations are protected so that there will be a vigorous debate within Cabinet on issues, policy and spending.
The Law Reform Commission noted in 1995 that this exemption had always been controversial, because it seemed to contradict the principle of open government: that Cabinet was the peak body for government decision-making, but its deliberations were secret. However, the commission considered Cabinet documents warranted a class exemption. But, the scope of Cabinet exemptions in the Northern Territory’s bill are comparatively wide. There are seven provisions that cover information that has been to Cabinet, has been prepared for Cabinet, or might go to Cabinet. This is information that is exempt because, according to clause 44, it is not in the public interest to disclose it. There can be no argument about public interest and no appeal.
The most worrying of these seven exemptions are the last two, the ‘might go to Cabinet’ category. Clause 45(1)(a)(vi) says information that:
- would disclose a communication between ministers about the making of a decision or the formulation of
a policy if the decision or policy is of a kind generally made or endorsed by an executive body.
Clause 45(1)(a)(vii), information that:
- was brought into existence to brief a minister in relation to a matter the subject of consultation between
ministers about the making of a decision or the formulation of a policy if the policy or decision is of a kind
generally made or endorsed by an executive body.
I suppose you could say it is hard enough to understand just trying to read it in the first place but, basically, what is says is that if something is generally being prepared - either a brief or a discussion paper - then you have a fair chance of not being able to see that information. This appears to me to be just the kind of information that would give members of the public insight into government policy and decision-making processes. It also suggests an easy excuse for claiming exemption: that the information sought is of that kind that might generally go to Cabinet, even though it does not. That is a very broad clause.
Under Division 2, the only information that can be released is information that is at least 10 years old, or purely statistical, technical, scientific or factual; and even that statistical or technical information cannot be released if it discloses a Cabinet decision or deliberation.
The state of Victoria has exemptions covering some Cabinet document and deliberative processes, but it also has other provisions that spell out the kinds of documents within an agency that are available, and that might have informed the decision-making process. The Victorian act requires agencies to publish submissions prepared within the agency for presentation to Cabinet. It also requires agencies to publish documents and reports that have been prepared within the agency, or for the agency, that contain recommendations, policy advice, study results, assessments of policy, programs or projects, assessments of the feasibility of programs and projects, report on agency restructures and instructions to Parliamentary Counsel. That is in a Victorian Labor Party government act. You certainly do not see that in our legislation.
The Premier in Victoria is required to publish, on a continuing basis, a register containing the terms of all Cabinet decisions and the date on which they were reached. The Premier has some discretion to keep decisions off the register, but at least the public gets an idea of what is going on in Cabinet and whether the decision they have been waiting for has been made.
In South Australia, a parliamentary committee reviewed the state’s FOI laws in 2000. It suggested that the exemption for all Cabinet documents could be used as a device for refusing the release of documents that had only a peripheral connection to the Cabinet process, and that the provisions had been used to avoid releasing information that should have been made available. The South Australian government has recently moved to restrict its Cabinet related exemptions, and only those documents that had been specifically prepared for submission to Cabinet will be exempt. It also prepared amendments so that access to Cabinet documents will be allowed if the Cabinet has approved their disclosure.
So we now have Victoria and South Australia each allowing the possibility that not all Cabinet documents contain sensitive information. The South Australian government was also concerned that, under the previous Liberal government, documents not normally exempt from FOI legislation will be attached to Cabinet submissions in order to give them exempt status. It has moved to clarify the status of attachments in the state legislation. However, the Territory laws make no distinction and, in fact, suggest that any document that is even remotely linked to Cabinet will be exempt.
I draw the attention of members of the Assembly to the catchcry of the new Labor government in South Australia: its honesty and accountability. The Premier even has an honesty and accountability portal on his web site. It is obvious that, as far as freedom of information legislation goes, the South Australian government is prepared to go further in trying to achieve openness and accountability than the Territory Labor government. That said, I realise that this government has gone much further than the previous government was ever prepared to go. I believe it was in 1994 that Territorians were first promised freedom of information legislation.
Other worrying exemptions in the Territory bill are those found in Part 4, Division 3. Clause 52 covers documents relating to deliberative processes. In my mind, these documents are the ones that go to the heart of government decision-making, policy adoption and accountability, and they should be available to the public. Under this section, information that may be exempt in the public interest includes: an opinion, advice or recommendation brought into existence for the deliberative processes that are part of the functions of the agency; or a record of consultations or deliberations of a public sector agency in the course of the deliberative processes. This is the kind of information through which interested people could determine what factors were taken into account when a decision was made and, through that, improve accountability.
To quote the Territory Ombudsman in his submission on the original draft in relation to these provisions:
- Information of the type sought to be made exempt is the very type of information that members of the public
would consider fundamentally significant in terms of being able to access and consider whether or not
there is true accountability and good governments arising.
Mr Maley: And the member for Goyder.
Mr WOOD: And the member for Goyder. But I have concentrated on three that I believe are so broad that they really should not be in there.
The provisions say it may not be in the public interest if - and these are the three clauses that I will speak to later during the amendments. Clause 52(5)(e):
- … there is the risk that the disclosure will result in the mischievous interpretation of the information …
Well, I am sure if you told that to the NT News - or first of all there is always a risk, if you are giving it to the press, the NT News or the television, that they will make mischief of it. That is the make-up of the media in this country. So, you could probably that just about say anything, if you are not careful, could have that risk. Clause 52(5)(f) is:
- the disclosure of information that will lead to confusion and unnecessary debate resulting from disclosure
of the possibilities considered tends not to be in the public interest …
That clause actually confuses me in reading it again, but, basically what it is saying is that, if it is likely to have unnecessary debate, it is possibly not a good thing to have. So, that could be a reason for exempting the information. Also clause 52(5)(g):
- the disclosure of information does not fairly disclose the reasons for a decision subsequently taken and may
be unfair to the decision-maker and may prejudice the integrity of the decision-making process.
I would have thought by having that there you are not encouraging people to make sure they disclose the reasons for a decision. They should be much more careful before they give someone a decision, so all the reasons are there so there cannot be any embarrassment. And if there is some embarrassment, so what? That is part of government. It seems to me that with the last provision the easy solution would be to disclose all the relevant information that led to the decision.
Clause 57 deals with commercial and business information. Everyone here would be aware that a favourite government excuse around Australia for rejecting FOI applications for information about contracts has been: it is commercial-in-confidence. The former Victorian Premier, Jeff Kennett, raised the practice to an art form. Kennett fought long and expensive court battles to prevent the release of details of contracts between government and the private sector, creating the impression that he had something to hide. One of the Bracks Labor government’s first actions was to conduct an audit review of the Kennett government’s major contracts. The reviewer found that, in the vast majority of cases, it was the government and not the private sector which had insisted on the contract details being kept secret. Why did the government want to keep these contracts out of the public eye? The reviewer found those processes, in terms of consultation and determining environmental impacts, whether a project would be effective in meeting with the government’s aims, or whether it would be economically viable, had been cut short. That is the sort of behaviour and decision-making that was covered up under the cloak of ‘it is commercial-in-confidence’.
In South Australia, the previous Liberal government found that commercial-in-confidence exemption valuable in avoiding disclosure of contracts and commercial deals. One opposition frontbencher remembers being denied access to information about government’s payments to a company on such a basis, but he later found it in the company’s annual report. The new Rann government has tabled amendments that more tightly define the exemption. The bill proposes that all future contracts will be disclosed under FOI applications; an exemption will still apply if the contract contains a confidentiality clause approved by a minister. But the exemption will cover only specific provisions of the contract and only the contract, not the pre-contractual documents or those generated in the course of administering the contract. Getting access to this pre- and post-contract information would be particularly important to any individual or group concerned, say, with the effectiveness of outsourcing.
The community needs to know that the government is not involved in secret dealings, but the Territory’s legislation is quiet on contracts and confidentiality, just this vague heading under Exemptions of commercial and business information. Surely the matter should have been explicitly dealt with by this bill, or does the fact that contracts get no mention mean they will all be available for disclosure under the information act?
Overall, Part 4 of the act dealing with Exemptions in the Public Interest, contains almost 80 different provisions that provide grounds for exempting information from disclosure. My worry is that, with such a range of exemptions, the government and the public sector will always have an excuse to exempt material if they are looking for one.
That leads me to look at the challenge presented by this legislation. The Commonwealth Ombudsman warned that, after 12 years of the federal FOI act, many government agencies still did not operate within the legal framework, and certainly not within the spirit of the act. The new South Australian government has also come to similar conclusions after re-examining its Freedom of Information Act. The government says its review highlighted a problem with the way that agencies dealt with members of the public. It is currently examining public sector culture and decision-making, and plans to announce non-legislative measures to address the issues identified.
In the Territory, there will be a need for senior agency managers to understand and support the principles of freedom of information. A culture of openness will have to be encouraged and that will probably involve a big shift, given the past difficulty in accessing government information in the Territory. It appears that the job of educating public sector workers and members of the community will fall to the Information Commissioner, so the recruitment of a highly skilled and dedicated person to that position will be pivotal to the success of the legislation, especially in the early days.
As the Victorian experience has shown, government departments have lots of information that can be released as a matter of course - information that belongs to the public. The taxpayer pays for the staff and the resources that are used to gather and collate that information. I would hope that the Information Commissioner would encourage agencies to publish - on the Internet for a start - a lot of the information that it has as a matter of course. That way, the legislation would just become a back-up.
The Labor government has delivered on its election promise. It promised freedom of information legislation, and we have it. It promised the laws would be a force for disclosure, and it meets those criteria. It also promised that the laws would enable scrutiny of the processes of ministers, their officers and government agencies. But it did not define those processes and it did not specifically include decision-making or policy-making processes. We will have to wait and see whether or not that is the case, but a good government should not fear scrutiny or openness.
I believe governments should work on the theory that all information is open to the public. That should be the foundation stone of FOI legislation. Exemptions should be exceptional and exceptions should be minimal. Government should ask themselves: what harm would it do? What harm would it do to release documents to tell the community what you are doing, to let them know how the government developed a certain policy? None. It certainly would make our government more accountable and would make government departments more careful about the advice they give government, because that advice could be scrutinised by the public.
I make two references to documents: one from the previous and one from the present government. There is certainly one document that I do not believe is available for public scrutiny, and I certainly do not think it would do any harm now - it is the document regarding the study done on the effects of damning the Elizabeth River. There was a document that, as far as I know, is still not available. When I asked for a copy of that document, it was certainly not allowed. I know the Leader of the Opposition queried whether there were any documents that his government would not allow access to. That is one of the famous documents that dealt with mud, biting insects and water quality - the stuff of absolute secrets. So it was difficult in the previous government.
In the new government, I know the minister for health is there, but when asked about the review on the Palmerston Health Clinic, the 24-hour health clinic, that review is covered by Cabinet confidentiality. Yet, you would have to ask: if there is no problem with that review, why isn’t it open to the public? What harm does it do? You have to work on that. That has to be the top of the pyramid: what harm will it do? We seem to have now come up with 80 exemptions because we are scared there might be some harm.
Perhaps government’s fear of allowing too much information to be released to the public is based on a fear of knowledge, even a little knowledge. Thomas Huxley, who I studied many years ago, once said …
A member: Aldous Huxley.
Mr WOOD: Aldous Huxley, I beg your pardon.
Mr Kiely: Thomas was his cousin.
Mr WOOD: Thomas was his cousin - thank you very much. Mr Huxley once said:
- The saying that a little knowledge is a dangerous thing is to my mind a very dangerous adage. If knowledge
is real and genuine, I do not believe that it is other than a very valuable possession, however infinitesimal
its quantity may be. Indeed, if a little knowledge is dangerous, where is the man who had so much as to be
out of danger?
This bill is a good start, but it is certainly not the finish. This bill allows a little knowledge. If the government does not want to be accused of being the author of the saying ‘a little knowledge is a dangerous thing’ then I believe the government needs to promise a review in 24 months - and I was pleased that that is possibly going to happen - to include in that independent review a benchmarking against other legislation and a willingness to change the bill to make it more about access and less about exemptions.
As a start towards this, I hope the government supports the amendments that I will introduce today, and allow this bill to really be a bill of knowledge, openness, transparency, and information, and a bill about good government and a healthy democracy.
Mrs AAGAARD (Health and Community Services): Mr Acting Deputy Speaker, today I speak in support of the passage of the Information Bill. By enacting legislation that will grant a statutory right of access to government information, this government continues to provide Northern Territorians with a confidence in the operation of government through its open and transparent policies.
In attempting to balance the competing interests of the desirability of freedom of official information with the need to provide sufficient protection to personal privacy, the Information Bill endeavours to ensure that any such access regime is based on national and international best practice. To achieve this, the Information Bill provides a framework for the management of government information in the Northern Territory in one single comprehensive legislative package that provides for freedom of information, or FOI, the responsible collection, handling and correction of personal information or information privacy, as well as promoting appropriate record keeping and record management in government.
This bill is unique in Australia in that it has both a privacy objective and a democratic objective, encompassing goals of participation, open government and accountability. It is important to understand that complete and unfettered freedom of information is unattainable and, in a free and democratic society, undesirable. Every FOI law in the world sets limits on what is to be made freely available. Such limits include the coverage of the law itself, the range of rights and duties and the reasons for limiting disclosure where other important public interests need to be protected. It is a matter of balancing competing interests.
There is a general presumption that it is in the public interest for access to government information to be granted, and the key underlying principle of the Information Bill is that information shall be made available unless there is good reason for withholding it. However, one good reason for withholding official information is to protect peoples’ privacy, including that of deceased persons. If an agency decides that it is necessary to protect privacy interests, then it must consider whether, in the circumstances of a particular case, withholding the information is outweighed by other considerations which render it desirable in the public interest to make that information available.
This is a balancing exercise that must be sincerely entered into by the agency if the disclosure is to obtain protection against any subsequent complaint to the Information Commissioner. While the Information Bill regulates access to one’s own personal information, the bill does not claim to exclude other means of obtaining access to information. Other access to personal or factual information may best be achieved through one of the more informal and flexible arrangements already established outside of the statutory screen.
However, the formal processes established by the Information Bill will often be the preferred way of dealing with the more complex applications where, for example, there is an issue of disclosure of third party or confidential information, or mixed personal and non-personal information. While there may be some perceived tension in any interface between freedom of information and privacy protection, for the most part, privacy and FOI work together in harmonious accord.
As Minister for Health and Community Services, I would like to focus on the information privacy aspects of the Information Bill, particularly health information privacy. But I would first like to touch briefly on the recent history of privacy. Privacy is a broad concept that covers a wide range of concerns about forms of intrusive behaviours, including the misuse of personal information, surveillance, phone tapping and body searches. At its simplest, privacy has been described as the right to be let alone. However, it is important in the context of the introduction of this bill to draw a distinction between privacy and information privacy.
The word ‘privacy’ is now commonly used in Australia to describe the second more specific category of data protection, or information privacy, and it is information privacy that is covered by the Information Bill. Information privacy is not a new concept. The OECD published international privacy guidelines in 1980 that were intended to ensure that an individual’s personal information was adequately protected, as well as to assure the international free flow of data. It was felt that failure to protect the former would result in an impeded data flow if individuals and nations addressed this issue in an ad hoc manner by developing inconsistent or incompatible national legislative schemes.
Although Australia provides no constitutional guarantees for the privacy interests of individuals - as do some countries - privacy is nevertheless a fundamental human right that should not be infringed without compelling justification. This was recognised by the Commonwealth government when it formally adopted the OECD guidelines in 1983, and the Commonwealth Privacy Act 1998 contains a set of information privacy principles based on those OECD guidelines.
In Australia and elsewhere, the most effective way that has been found to address issues of the protection of personal information is the development of privacy rules that govern the way in which health and other personal information is collected, used, disclosed, kept and otherwise dealt with. The central focus of any privacy framework must be to ensure that individuals have a choice about how their personal information will be handled, enabling them to maintain some control over who has access to it.
The Commonwealth’s Privacy Act 1988 established a regime for the protection of personal information held in the Commonwealth and ACT public sectors. In December 2001, this legislation was extended to provide privacy protection to personal information held in the private sector and, through the national privacy principles, establish a framework for the collection and handling of personal information. They also contain an access and correction principle that grants individuals the right to seek access to personal information, and to seek to have it corrected if it is inaccurate, incomplete or out of date.
The Northern Territory Information Bill has not been developed in isolation from other privacy regimes in Australia, and complements the Commonwealth’s Privacy Act 1988 by applying a set of information privacy principles to the Northern Territory public sector, which are drawn from the national privacy principles. Coverage of the Northern Territory public sector will ensure equivalent and consistent protection of personal information in the Northern Territory, regardless of whether a public or private sector organisation is involved.
Under the information privacy principles, those whose personal information is being held by an agency should be made aware of the purposes for which it has been obtained, and for which it may be used or disclosed. This openness introduces accountability and a quite proper democratic pressure to be fair and reasonable in those informational handling processes and practices. Openness and accountability are essential ingredients of the information and privacy principles, but nothing in the principles derogates from any statute or regulation which authorises or requires information to be collected or disclosed.
All Australian governments are committed to the positioning of Australia as a global player in the information economy. The majority of Australian governments have also been keen to deal with privacy, as it is widely considered to be a potential impediment to the uptake of electronic commerce and online government. While it is well recognised that the private sector should lead in terms of the development of commerce, and e-commerce in particular, governments have a responsibility for ensuring that a supportive, regulatory framework is in place. A facilitated regulatory environment will remove barriers to participation in the information economy and build trust, confidence and certainty in electronic forms of communication and business. A robust and pragmatic privacy regime is seen as an essential component of such a regulatory framework, and this is what has been delivered to the people of the Northern Territory with the Information Bill.
Just as a rapid development of information and communication technologies has changed the way in which individuals, businesses and government conduct their activities, these same technologies also permit health care to be planned and delivered in new and innovative ways. Development such as electronic health records, telemedicine and remote access to diagnostic facilities, involve the distribution of sensitive health information through computer and telecommunication systems across long distances. In order to realise the benefits of these e-health initiatives, safeguards need to be established to ensure that the information collected, disclosed and shared through these systems, is kept confidential and is protected from misuse and unauthorised access.
In short, the success of national and Northern Territory e-health initiatives depends on the establishment of a robust and comprehensive legal and regulatory framework that will assure all stakeholders that appropriate protection is provided for all the highly sensitive personal health information that is embodied within all forms of health information systems, and which will provide them with legally enforceable privacy rights and remedies. Ensuring that personal health information is protected by robust and effective privacy safeguards has become one of the most important issues on the national health agenda. People regard information about their health as one of the most sensitive and private categories of their personal information. Protecting and safeguarding a person’s health information is a fundamental health care issue. It is clear that, if people are not sure that their health information privacy is respected, they will not seek the health care that they need or, if they do, the information they provide health care providers will be inaccurate and incomplete.
The Information Bill establishes a rigorous and appropriate level of privacy protection for personal health information collected and handled by the Northern Territory public sector. Most importantly, the bill provides for complaints and enforcement to be dealt with locally in the Northern Territory by the Information Commissioner. The Information Commissioner has the capacity under the legislation to ensure that the rules that apply are suited to local conditions. This flexibility ensures that the privacy protection provided in this legislation suits the needs of all Territorians, regardless of where they live. The Information Bill is ground-breaking legislation for the Northern Territory in the way that it promotes openness and real accountability in government and provides robust health information and privacy protection in the Northern Territory public sector.
Mr Acting Deputy Speaker, I am very pleased to support this legislation.
Mr KIELY (Sanderson): Mr Acting Deputy Speaker, today I support of the Martin government’s Information Bill that, as the Attorney-General has stated, it is another pillar of our good government strategy. The interest in this bill shown by the broader community of not only the Northern Territory but also from other Australian jurisdictions, is a clear indicator of the need for this type of legislation in a democratic society.
One of the challenges of government is maintaining open, accountable and democratic structures. Transparency and openness is the greatest weapon the public has against misuse by government of information obtained in the course of the stewardship of institutions within our society. Governments today have become the custodians of a vast amount of information upon which decisions are based that can affect, for better or worse, the lives of ordinary citizens. Government information is normally accessible to the public in a number of ways including the parliamentary committee system, through local members of parliament, in the annual reports of agencies, and government publications. However, no society can consider itself truly democratic if its citizens must be satisfied only with the information fed to them by their leaders.
Access to information laws have their champions and their critics: promoted by politicians, usually when they are in opposition; supported by investigative bodies such as royal commissions; championed by the media and enlightened social commentators; written off as next to useless, too costly or a sham by governments who have little desire to become more accountable to the electorate. Such was the case in the Northern Territory under the previous CLP government. As an example of this observation, let me recall for members of the Assembly, comments made by the member for Brennan on several different occasions. These have quoted quite a number of times by other speakers before me, but I feel that they are important enough to get back onto the record. The first one that I make mention of occurred on 11 August 1998, when the member for Brennan, the Opposition Leader who was, I think at that stage, vying to be our Chief Minister, stated:
- I do not believe FOI works …
I certainly believe it is not needed in a jurisdiction as small as the Northern Territory …
I do not believe there is a real need in the community for freedom of information legislation.
I believe Territorians are comfortable with the sort of information that they can access.
This is from the person who was up there championing it not long ago. The same person then said in February 1999, in response to a question from the member for Fannie Bay in relation to the freedom of information:
- … I can say up-front that I don’t believe in FOI legislation ...
- … I can say up-front that I don’t believe in FOI legislation. I think it’s unnecessary. I think it’s overly
bureaucratic. I think it’s not suited to the Northern Territory.
Well, not all Territorians feel the same way I am glad to say. He went on to say:
- I don’t believe it’s necessary in the Northern Territory.
I certainly don’t believe that’s what Territorians want and I don’t accept it.
Well, Territorians did not accept his point of view and they showed that quite well.
The final illustration of substantiation of my observation occurred on 22 April 1999, a date that he seemed to bandy about quite a bit. The member for Brennan said this in response to a question from the member for Fannie Bay in relation to freedom of information:
- The reality is politicians too often lie to the general public, in my opinion, and suggest to the general
public that they will somehow deliver presents that they have no intention of ever delivering.
That is the member for Brennan’s view. He fed to this parliament, to members of the Legislative Assembly, the view of his own self-image. It says a lot for the person that they are in this game here, and they believe the reality is that politicians all too often lie. Maybe that is the view of the CLP; it is not the view of the Labor Party. I do not subscribe to that view, and I really think that that man ought see about a new career move if that is what he thinks his job is all about. He goes on to say:
- The other thing that happens with freedom of information legislation is that it invades the privacy of
individuals under this so-called notion of ‘I need to get this information on government, or some certain
public affair’, individuals’ privacy is being abused.
All these comments that he made a year, two years ago, are contradictory to the position that he was espousing here a short time ago. The CLP, to its shame, resisted all attempts made by Labor when we were in opposition, as well as the public, to introduce meaningful information legislation. Information legislation is one of the building blocks to open and accountable government. But, according to the now Leader of the Opposition, ‘it was not necessary, Territorians did not want it, it was a joke’.
Every other Australian jurisdiction including the Commonwealth has information legislation, and has had for years. Its existence is a tangible benefit for the citizens of those jurisdictions and it is taken for granted. Indeed, even countries such as Bulgaria enacted access to information laws in 2000. Even more astounding is that war-torn Bosnia Herzegovina managed to draft and implement access to information laws in 2000. Such is the desire of people who, for years, have been disallowed from knowing what information their governments have control of, that amongst all of their other woes, amongst all their war-torn lives, they should deem such laws as necessary to protect their newly found democracies. Thanks to the strength, courage, and foresight of the people of the Northern Territory by voting in the Martin Labor government, the same right to access information will finally apply here.
The purposes of this bill are to make public bodies more accountable to the public and to protect personal privacy by giving the public a right of access to records; giving individuals the right of access to and the right to request correction of personal information about themselves; specifying limited exceptions to the rights of access; preventing the unauthorised collection, use, or disclosure of personal information by public bodies; and providing for an independent review of the decisions made under this act. You see, this is the Information Bill we have here; it is not just freedom of information. It is about privacy, records management, and access to information.
Mr WOOD: Government policy.
Mr KIELY: That’s right. Eh?
Mr WOOD: What about government policy? It is not private.
Mr KIELY: This is. The bill we are now debating has been the subject of a rigorous consultative process. As the minister has previously advised, 55 formal submissions were received during the extended consultative period. So much for Territorians not being interested in FOI. As a local member, I joined with three other northern suburban MLAs - the members for Karama, Casuarina and Johnston - and organised a public forum for our constituents. I was aware, as were they, of the interest of the public in this bill. Feedback from this and other public meetings, as well as from the formal submissions, have assisted our government immensely in creating legislation which, in all probability, will serve as the model for other jurisdictions in Australia and elsewhere to follow when their current Freedom of Information Acts are up for review.
I should note to the Assembly that public comment on the Information Bill was primarily on the FOI component. Submissions have been received from relevant bodies - for example, the Australian Society of Archivists - with respect to the record keeping and records management component of the bill. However, there was minimal comment on the privacy component. This may well be attributed to there generally being less familiarity with that area of law from those making comment, rather than a lack of interest in privacy matters. The same also goes to the privacy principles.
There was considerable comment that the objects and purposes clause of the bill failed to acknowledge the intent of government as presented in the discussion paper; that is, to be open, accountable, and transparent and promote public confidence. A common comment was that it needed to express a more pro-disclosure approach to freedom of information. As the objects and purposes clauses can be referred to for the purposes of statutory interpretation, it is necessary that they properly reflect the intent of parliament and the legislation.
The objects of the act before the Assembly today have addressed these concerns in a very thorough manner, and I am sure members present would agree. I hear voices …
Mr Wood: You do? You should see a doctor!
Mr KIELY: I do, I do. I hear lots of voices. Voices of acclaim!
This act is very strong and clear, in that every person has a right, if plausible under this act, to access government information other than personal information that can be protected under the privacy principles. There was some confusion on this point, and this confusion was identified in the consultative process. Clauses 15 and 16 have been drafted to make clear that the right to access is established but personal information is protected under the privacy principles. In the discussion paper, clause 13 provided for the retrospective application of the act. That is, it would apply only to records created or received no later than five years before the commencement of the act, except for personal records, for which there is unlimited retrospectivity. This is widely criticised as being too restrictive. Of the 12 submissions that mention this issue, only two submissions were opposed to retrospectivity.
Dr Burns: One of them was DCC.
Mr KIELY: It quite possibly was, if my memory serves me right.
The general thrust of the submissions was that there was no justification for that limitation. Submissions suggested that it be either unlimited, go back to self-government, or have an unlimited period phased in initially, then open. The increased costs of further retrospectivity were not seen as a good argument against that course of action. Retrospectivity appears to be something that all jurisdictions of Australia have had to come to grips with when introducing information legislation. I believe it will benefit this debate if I were to cover, at this point, the different time lines taken up by the rest of the Commonwealth in regard to retrospectivity.
In the Australian Capital Territory, FOI came into operation on commencement of clause 22 of the Australian Capital Territory (Self-Government) Act 1988. The FOI access right does not apply to documents that came into existence before 1 January 1977, subject to a personal information exception, or if a document is necessary to explain a document that came into existence after that time. The access right does not apply to Commonwealth documents originating more than five years before commencement, except for documents containing personal information of an applicant, or information relating to the applicant’s business or personal affairs. In New South Wales, the restriction on refusing access on the grounds that the document came into existence more than five years before the commencement of the legislation has been repealed. In Queensland, there is a three month phase-in of access rights, and six months in the case of local government. After phase-in, the access right applies to any document, regardless of when it came into existence. In South Australia, an agency may refuse access to a document that came into existence before 1 January 1987, except for personal information, a document that is necessary to understand another document, or a document that is more than 20 years old. For Tasmania, except for personal information, the FOI right of access does not apply to information incorporated in a record more than five years before the commencement of the act. In Victoria, except for personal information, the FOI access right applies to documents that came into existence not more than five years before the commencement of the access right; that is, 12 months after the date of commencement of their act. In Western Australia, it applies to documents regardless of when they came into existence, subject to time limits imposed with respect to exempt documents.
This government has given very strong consideration to the comments put forward during consultation, and has looked closely at the lessons learned from other jurisdictions. It is, indeed, a very sound and logical position that has been taken in dealing with the issue of retrospectivity to information. This bill has struck a good balance. Information will be available to individuals all the way back to self-government, after a phase-in period of two years, if, as determined by the Information Commissioner, access can be shown to be important or in the public interest. After this time, information may be sourced as far back as 10 years.
There were a lot of general comments on exemption provisions. Many submissions received appeared to misunderstand the way the exemptions worked – common but incorrect. Concern was that particular case exemptions were class exemptions and not subject to a public interest test. The submissions received made the accurate observation that the categories of the exemption certificates contained in the discussion paper were broader than elsewhere. However, the categories of information referred to, do not differ greatly from the exemptions in other jurisdictions. In fact, the exemptions are less broad than some other jurisdictions.
All jurisdictions except Tasmania have exemption certificates for Cabinet executive council. Tasmania retains exemption certificates only for executive council, having repealed the provisions for certificates for Cabinet documents in 1999. The 15-year time limit seemed to be the main concern. In most other jurisdictions, the Cabinet exemption is for 10 years. Government considered the views of the community, and the precedent set in other jurisdictions, and has acted positively by incorporating a similar period to the other Commonwealth jurisdictions for the exemption of Cabinet executive council documents.
This bill before us today provides for an exemption from access rights or information that would disclose information about an Aboriginal sacred site, or Aboriginal tradition. Third party consultation requirements include sacred sites or traditions. The sacred sites information held by the Aboriginal Areas Protection Authority is considered to be protected by the operation of section 38 of the Northern Territory Aboriginal Sacred Sites Act, and the absolute exemption provisions for secrecy provisions. Other cultural information held by that agency or others would be exempt where it properly fell within the other exemption provisions contained in clause 56, cultural information, or clause 55, confidential information. No other jurisdiction allows certificates for privacy in cultural matters.
An area of discussion paper which attracted a lot of criticism was the power of ministers to grant exemption certificates for deliberative process documents of agencies for which they are responsible. The ability to delegate this power to individual CEOs was widely criticised, and perceived as having the ability to undermine the whole regime. A quick check of the approach of other jurisdictions to the issuing of exemption certificates indicated only one jurisdiction, the ACT, allows the power to be delegated to a CEO for a minister. Only Tasmania allows the CEO of an individual agency to give certificates, and this is for the Cabinet executive council.
As indicated earlier, this bill was a worthwhile recipient of a rigorous public consultative process. The comments provided by the community have been seriously considered and, where merit has been demonstrated, these comments have been acted upon. Such is the case with the issuing of exemption certificates. The only authority for issuing exemption certificates in this bill before this Assembly will be the Chief Minister. I could not help but notice that the member for Goyder, when he was grinding up about the exemption certificates, once again seemed to be imposing a CLP model on what would happen with exemption certificates. Well, we are not the CLP, we are the ALP; we are the government of the day. This is what is lost on the opposition members.
Considerable concern was expressed that the cost of access would be used to prevent access. There was a strong view that access to personal information should be free. To address these concerns, an interdepartmental committee was formed to consider various issues regarding implementation of the Information Bill. There is a charge if the information requested does not relate to the applicant’s personal affairs; this is only fair and reasonable. The scale of charges that will be incurred are in line with other jurisdictions and, by any scope of the imagination, they could not reasonably be deemed excessive. The main feature to remember is that the fee payable for having public servants search out and reproduce information, is only applied if the information sought is not of a personal nature. The opposition and the Independents should pick up on that.
The establishment of an independent statutory office of the Information Commissioner, was strongly supported. The necessity for independence of the office is widely recognised and accepted. Part 6, Division 1 of the bill clearly sets out the establishment, functions and powers of the Information Commissioner. I have had a close look at this part of the act, and I find the role of this position would have to be exciting and challenging. I believe it will be a very rewarding task for the first person appointed to the position, and I look forward to their contributions of introducing this long awaited legislative change.
My contribution to this debate has really focussed on the access to government information aspects of the Information Bill, and I feel a bit remiss of not speaking at any length on the privacy and records management facets. However, it is the FOI elements, as I mentioned earlier, that have attracted the most attention, and therefore, I felt compelled to give the majority of my observations towards that issue. I have waited some time for the introduction of information legislation for Territorians. I clearly remember when I was employed in the NTPS that I mentioned to one of my colleagues the need and benefit that access to information legislation would bring, not only to the community, but also to the NTPS. They chided me and stated that FOI would never see the light of day in the Northern Territory. Well, it has and I am proud to be part of the government that achieved this structural change in the way government relates to our community.
I would also like to say that it is cheap and easy to be sitting on the opposition benches and to be deriding the proposed bill before us today. It is at the cutting edge. It does wind up three important facets of access to information: it covers freedom of information, it covers records management, and it covers the privacy principles. To see the opposition now sit there and have cheap shots at what we are trying to do for the Territory with this bill, talks about the backflip this opposition have chosen, and about having no credibility about their intentions; they are there deriding it. The truth will win out on this bill. I believe that after it is enacted and people start using it, they will see that it is good law. No matter how much the opposition stands there and makes out that this is not a good, strong bill, the proof will be in the pudding. The proof will be that the public will have access to information. I am not at all concerned. I will happily go to the people in three years time and stand up and say: ‘We are the ones who brought in the Information Bill. Not that CLP. Have a look at it. It is working and you can rely on this government for good laws’.
I commend the bill to honourable members.
Dr BURNS (Johnston): Mr Acting Deputy Speaker, I support this very important bill. This Information Bill is much more than a freedom of information bill. It balances the sometimes paradoxical and competing interests of public access to information held by the public sector, with the rights of individuals to have the privacy of their personal information protected - the first time in Australia that those rights and protections have been balanced against each other and combined into one piece of legislation. I appreciate the level of detail that opposition members and the Independents have gone to in this debate. However, the essence of the detail is the balance that I have just spoken about, and it is a unique balance. It is legislation that has been commended elsewhere in Australia.
Supporting both these crucial aspects is the legislative requirement for public sector agencies to ensure that there is appropriate records management and archive systems to retrieve such information. This bill also establishes the independent and autonomous position of an Information Commissioner to oversee the act and to handle any unresolved complaints and conflicts that may arise.
When receiving a briefing some months ago from the Victorian Attorney-General’s Department, I was pleasantly surprised to hear comments from experienced officers who were full of praise for the integrated approach adopted within the Northern Territory legislation. As previously mentioned, this approach combines, links and balances the rights of the public to access government information, the need to safeguard personal privacy, and the requirements for appropriate record keeping and archival systems within a single legislative framework. I believe this framework makes good sense and our approach also makes for good government.
It is worthwhile to examine some of the history surrounding the introduction of this legislation. Freedom of information legislation was first introduced by the Commonwealth in 1982, with most states soon following; that is, most states and territories other than the Northern Territory where its introduction was vigorously resisted for many years by the former CLP government. Someone once remarked to me that freedom of information to the CLP was like a wooden cross to a vampire. I tend to agree and I will have some quotes to back that up. It is also an interesting comment because folklore has it that vampires cannot be seen in a mirror, which is probably why some members opposite get upset when we begin to reflect on the arrogant, dismissive and plain out-of-touch history of the CLP regarding such cornerstones of government accountability such as FOI. Here are some examples. This is from the current Opposition Leader, 16 February 1999, in response to a question from Clare Martin. I refer to the Eighth Assembly Parliamentary Record, page 484:
- … I can say up-front, that I don’t believe in FOI legislation. I think it’s unnecessary. I think it’s
overly bureaucratic.
Here he is criticising us, because he believes it is overly bureaucratic:
- I think it’s not suited to the Northern Territory.
I don’t believe it’s necessary in the Northern Territory.
I certainly don’t believe that’s what Territorians want, and I don’t accept it.
Again from the current Opposition Leader on 11 August 1998, and I am quoting from the Eighth Assembly Parliamentary Record, page 1648:
- I do not believe there is a real need in the community for freedom of information legislation. I believe
Territorians are comfortable with the sort of legislation that they can access. They have the opportunity
to pass judgment every three to four years if they do not trust their government.
I will read that last one again:
- They have the opportunity to pass judgment every three to four years if they do not trust their government.
A couple of themes are very evident in these words, especially the paternalistic view of what is best for the Northern Territory and Northern Territorians. It is almost like a Captain Snooze-style reassurance that: ‘Everything is all right, children; you can just go back to sleep now’. There are also echoes of Bjelke-Peterson who said: ‘Don’t you worry about that. Everything is all right’. However, everything was not all right. Leaving these themes aside, the final sentence from the current Leader of the Opposition carried profoundly prophetic words, because judgment was passed and the people voted for a party with a clearly enunciated platform to introduce freedom of information legislation.
This policy vacuum on the part of the CLP remains the major defining difference between the two sides of this House. Here today we have a united government, implementing our election promises made to the people of the Northern Territory, whilst the opposition criticises and complains and tries to find fault with everything we try to do. My advice to members opposite is to get a life, and get some policy positions.
Before I move on, here is a slightly altered quote from Bertolt Brecht that I believe the CLP should consider very carefully:
- So the opposition is unhappy with the people, then let the opposition elect a new people.
I think there is more than an ounce of truth in that. I will say it again:
- So the opposition is unhappy with the people, then let the opposition elect a new people.
Get out there, make some policy, develop some policies, make your appeal to the people, and then you might have some success, instead of whingeing and carping and whining and trying to pick fault with everything that we on this side do. You have tried to carp and criticise on some very fine points, but freedom of information is here, it is going to be passed and, I believe, it is going to be an incredible benefit to the Northern Territory.
By contrast, this is a government committed to the principles of a participatory democracy. From the outset, we have involved the people of the Northern Territory in the process of developing this legislation. After tabling the draft Information Bill on 23 October 2001, we invited public comment. Some 55 submissions were received from a wide variety of organisations and individuals, and all submissions were carefully considered. A significant number of changes were made to the draft legislation, and the member for Sanderson has outlined some of those. We are a government that listens as well as delivers on our promises.
If I could turn back to those 55 submissions, it is amazing, in a way, that the Opposition Leader has chosen just one of those 55 submissions, which is from the Ombudsman. Anyone who writes, criticises, examines and reviews a lot is always suspicious of someone who comes back to only one paper. If you are looking at an academic topic or a topic in a review, you are always suspicious if someone does not review the whole of the literature; if they settle on only one particular paper that suits their argument. That is a weak way to try and review and argue, but that is what the Opposition Leader did. The other thing he did was forget that the Ombudsman made a submission on the draft Information Bill. He kept on coming back to that, and did not acknowledge the positive changes that had been made as a result of that public consultation.
I believe one of the major changes that resulted from the public consultation related to an increase in the retrospectivity of how far back information, other than personal information, can be accessed. Within the draft framework, there was a five-year limit placed on how far back the public could access information. I am very pleased that the legislation now allows for a 10-year limit on government information generally. After two years, it is proposed to allow access to government information created more than 10 years ago, subject to a public interest test. In relation to personal information, it is worth reiterating that there is no such time limit.
To return to the bill as a whole, as stated previously, the main principles which underpin this bill are as follows: right of access to government and personal information; protection of the privacy of personal information; to allow individuals to have erroneous personal information corrected; appointment of an independent statutory officer, an Information Commissioner to oversee FOI and privacy; and best practice for record keeping and records management responsibilities.
As with any such legislation, there will necessarily be tensions between the need for government to keep some matters confidential and the rights of citizens to obtain information. Needless to say, there are those people - and we have heard some of them here today - who believe that the exemptions contained in this bill are too extensive. However, as the Attorney-General foreshadowed in his second-reading speech, all exemptions within the bill are based on the public interest, and there are very few class exemptions. As outlined in clauses 45 and 48, the two categories of class exemptions are as follows: information confidential to government, including Cabinet and executive council documents - and the member for Sanderson pointed out how that is the rule generally within Australia. The second class of class exemption is information covered by secrecy provisions of other legislation, subject to a three-year sunset clause, excluding the Northern Territory Sacred Sites Act. I believe that those two class exemptions are very reasonable exemptions, and I do not really see how anyone can get up here and reasonably criticise those two sets of class exemptions.
All other exemptions that may be applied are subject to a harm test as follows:
information that would prejudice security and defence, or prejudice law and order.
Who can argue against that? In this day and age, we must be very mindful of our security, defence, and law and order. We are living in a very dangerous time, so it is natural to want to protect that.
information that is necessary to preserve the system of justice, including legal privilege, these
include the right of a person to a fair trial.
any information that would endanger the life or safety of an individual.
Interestingly, when I was in Victoria receiving the briefing that I mentioned previously, I was told of a prisoner in a high security gaol in Victoria who was trying to use the freedom of information legislation there to access information about the running of that gaol. Some of it has probably hit the papers in the last week about this particular individual. I am not going to name him in this parliament, but he is a very dangerous person. There has to be that qualification to protect people working in places like prisons. I do not believe information that would endanger the life or safety of an individual should be available to people, especially people like that prisoner I just mentioned.
While some may suggest that some aspects of exemption under this bill are too extensive, I would argue strongly to the contrary. Indeed, I believe this bill balances the rights of the public to access information, and gives protection to individuals and safeguards the public interest. With regard to some of the ill-informed comments by the Leader of the Opposition in relation to the exemption certificates with the potential to be issued by the Chief Minister, it is worth reiterating that our scheme is very similar to that operating in Western Australia, where the Premier has the same power to issue an exemption certificate. That power has never been used.
Furthermore, this bill sets out very specifically the pivotal responsibilities of the Information Commissioner under clauses 87 and 88. The act is very clear about the functions and power of the Information Commissioner. I would like to read some of these powers because think they are very important, and this position of Information Commissioner will be a very important appointment.
Some of the functions under clause 87:
(a) to develop and issue guidelines to public sector organisations about freedom of information,
the correction of personal information, and the protection of privacy;
(b) to promote within the public sector organisations an understanding and acceptance of the
principles of freedom of information;
(c) to promote within the public sector organisations an understanding and acceptance of the
IPPs and their objects …
That is very important about protecting peoples privacy. I will not drag up the disgraceful thing that happened some years ago under the CLP, where the then federal candidate, Mr Nick Dondas, somehow received very private information about elderly Territorians through the Health Department, which assisted his campaign - an incredibly bad breach of privacy under the previous government.
The Opposition Leader challenged us before to find some instances. Well, there is an instance, and I have the information here, some of the debate that went on within the House in that time - a disgraceful episode.
But anyway, returning to IPPs and the functions of the commissioner:
(d) to provide advice and training to public sector organisations on the freedom of
information and privacy provisions of this act;
(e) to conduct audits of the records held by public sector organisations to determine the
extent to which those organisations are complying with the privacy provisions of this act;
(f) to examine and assess proposed legislation and policies relevant to freedom of information
and privacy;
(g) to research and monitor developments …;
That is very important to let the public know what their rights are and how they can access freedom of information.
(i) to make public statements about matters relevant to freedom of information and privacy;
and the protection of privacy;
And so on.
Clause 88 has the powers of the commissioner:
- … the commissioner has the powers that are necessary and convenient for the performance of his or her
functions under this act and any other act.
(2) for the purposes of –
(b) deciding whether or not to serve a compliance notice …
People opposite talked about the lack of teeth in this legislation. Well, I believe this Information Commissioner has very strong administrative powers to make organisations or individuals comply:
(c) conducting an audit under section 87 …
Also:
The commissioner -
(d) is entitled to full and free access at all reasonable times to the records of a public
sector organisation; and
Very importantly:
(e) may require a public sector organisation to answer a question or to produce a record.
So, there are some powers that will enable this Information Commission to carry out their particular functions.
Another important function of the Information Commissioner is to provide an annual report to the minister as required under clause 99. This will enable parliament and the public to effectively judge the performance of individual agencies and the Information Commissioner. By the way, it will also allow the public and the voters to judge our Information Bill, because it will be set there in an annual report for all to read, discuss and analyse. I believe that is very important also, so that the public and the parliament can monitor how this legislation is travelling.
In conclusion, this legislation represents a step forward for good government in the Northern Territory. I commend this bill to the House and urge members, both Independent and opposition, to support it because, as the Chief Minister said earlier, it is very hard to discern - I guess we had from the Independent member there - some support for the bill. It is very hard to discern, on the opposition side, whether they are supporting it or opposing it.
Ms CARTER (Port Darwin): Mr Acting Deputy Speaker, I would like to make a few comments with regard to the legislation that I am sure will get passed tonight.
Probably a few years ago, I started taking a particular interest in FOI; it was a topic being mentioned within the community. Certainly, I can say that the party members within the CLP also raised it as an issue. As a result, as you would know, when the CLP were in government, we moved to develop draft legislation on the issue.
When I looked into it and read articles about other jurisdictions and how FOI was going there, what became fairly apparent was, regardless of where you live anywhere in the western world, there are serious problems with FOI. Essentially, it drills down to that, basically, governments do not want to give out information that could cause problems for them, and people, of course, think freedom of information means that they can get anything they want. I noticed last night on the TV news footage the Attorney-General going into the archives of the Northern Territory. The inference was that, up until today, these doors have been locked to you but, after this legislation is passed, there is going to be essentially free entry and you can have a scrummage around and have a look for anything you like.
The public, to some extent, are going to have very high expectations of what FOI is going to mean for them. In reality, all of us have known for a long time that this is not really going to be what they are going to get. I have seen articles where people request information from a government department and, when they get that, there have been photographs of the documents that they have received with great big lines of texta colour through them, blacking out all the bits of information which they were particularly interested in. So this builds up the term ‘freedom of information’ - and the press love it, they love the sound of that – and very high expectations which, of course, are not going to be met.
That came through to me a few years ago and, essentially, it is a game of smoke and mirrors. The inference has always been, especially in the last couple of years with the pre-election campaigning that went on through the Labor Party, that there are dirty, secret activities going on with the CLP and we are purposely keeping all of this terrible information about people; we are distorting public records of individuals; public servants are doing this on the behest of the CLP ministers; and it is a terrible thing that has been going on. Of course, the reality is that that is not the case. People are going to find out as this freedom of information legislation comes through that there has not been some conspiracy to distort records as a whole-of-government process, and that there has never been a system that says you cannot have information. Because on many, many occasions in the past, when people have requested information, for whatever reason that might be, that information has been made available to them.
In the legislation that we have here, clause 52 has had a fair amount of scrutiny here today, and I am sure it will get some with the amendments that are going to be proposed later on tonight. However, the concern is the number of exemptions that are in here. If you had a mind to want to exempt something from being released, you could drive a truck through here - anything at all could fit into this exemption listing if you so chose to do that. For the people who are in power - at the moment it is a Labor government, and one day in the future it may well be a CLP government - if you have a mind to exempt, you can exempt just about anything. I cannot think of anything that would not be exempt if you so chose. For example, clause 52(5)(e):
- the disclosure of information where if there is a risk that the disclosure will result in a mischievous
interpretation of the information …
Really, you could just about interpret anything as ‘mischievous’ if so chosen.
The exemptions are very broad and, as you know also, we are concerned about the fact that the Chief Minister has such a final role; that there is no way of appealing a decision by the Chief Minister to say no to the release of some information. There is nowhere somebody can go to with that situation. There are some concerns there, and also with regard to the Chief Minister’s position - regardless of which government is in power. If people choose to - and I guess I mean if the public service chooses to - put up to the Chief Minister requests that something be withheld from being released, a Chief Minister is an extremely busy person and to have to turn your mind to the minutiae of a file with regard to this could be quite difficult and time consuming. If there are a number of these requests coming through, when that is not your sole specific area to deal with, it will be quite an onerous responsibility to be put on the Chief Minister. That is a concern, and you will notice with one of the amendments we propose is that the Information Commissioner should be somebody to whom people can appeal if they feel that they have been unfairly treated with regard to exemptions.
With regard to the regulations that have been tabled today, the question of costs has been raised. Certainly, if you are after something specifically for yourself as an individual, it appears that the costs will not be too onerous unless, of course, you need a great deal of information. However, it is when you are interested as a third party to some piece of information - and certainly the media will fall into that category - that costs there could be very substantial for them.
To conclude, the position that I held prior to being elected was working within the Office of the Ombudsman and, specifically, the Health Complaints Commission. I worked there for a couple of years as an investigation officer and we would have members of the public come to us to complain about health services that they had received. Due to the size of the organisation, of course, Royal Darwin Hospital was one of the major organisations about which we received complaints. I repeat that was only because they are the largest provider of health care services here in the Northern Territory.
The process there if somebody came to me, for example, with a complaint about Royal Darwin Hospital, was that I would get that complaint in writing and they would have to sign a comment there allowing me to have access to their personal records held by the hospital. Within a day or so, I would contact the hospital and ask for a copy of those records and, depending on the size of the records, if they were a significant file, I would often be invited up to the hospital where every effort was made to assist me. The file was always provided. I was provided with a photocopier, with a private area to work in to examine the file, and I could do whatever I liked having a look into that file and making whatever copies I required to do, all free of charge. Then I was able to utilise that in the investigation that I then undertook.
I found that the Royal Darwin Hospital and Territory Health Services went out of their way to assist the commission in looking into the complaints of individuals. The process was very quick and I certainly hope that the process of freedom of information that you have is also going to be equally fast for people. I hope that it does not slow down some of the processes of access that we already have. From that experience in the Health Complaints Commission - and I can assure you that sometimes there were things in those notes that I am sure Royal Darwin Hospital and Territory Health Services would wish were not seen and were not released, but they never stopped that happening.
To some degree, I have concerns about freedom of information legislation that is coming through here today, with all the exemptions that can be used by the public service and others to prevent release of information. In the position that I was in before, I did feel that we had very ready access to public information. That reinforces the call that has come from this side of the House in the past, I suspect, that there was not an overt need to have freedom of information. Of course, the public has that expectation built up to it by opposition parties - whoever is in opposition - and also the media. The expectation is that it will be an open door for them; they will be able to go in and get whatever they want, have a little sticky, get what records they need. Of course, they are going to be very disappointed from time to time.
Speaking of time, it will be time that tells to see how this legislation goes. I look forward to seeing the review that will be carried out, I am sure routinely, to see how you are progressing with the legislation and how it is implemented. I understand that the implementation of the legislation will not be for some months - and the minister may like to correct me there, because I am not sure exactly when it will take effect. But I do believe that it is going to be some months and, given the urgency that it is getting here today and the support from government members, I am wondering why it will be quite some time before it comes into place. I would assume that is due to organisational needs, but if I could have some information on that, that would be appreciated.
Mr HENDERSON (Business, Industry and Resource Development): Mr Acting Deputy Speaker, I support the Information Bill 2002 that is before this parliament at the moment. In opening my remarks, I can certainly state, from the point of view of the people of Wanguri who put me into this parliament, that this is long overdue legislation.
The hypocrisy of those opposite on this particular bill is absolutely stunning. They certainly had many years to introduce legislation into this House that would give Territorians the same rights and access to information that other Australians have taken for granted for many years. They were never interested in citizens’ rights and a properly functioning democracy. To come in to this parliament this evening and to so hypocritically seek to point out deficiencies in legislation that we are enacting that is modelled on what is accepted throughout Australia, and as best practice legislation in Western Australia and New Zealand, is hypocrisy of unfathomable dimensions.
We are, as many before have said, the last jurisdiction in Australia - indeed, probably one of the last in the western parliamentary Westminster system democracies - to introduce FOI. I notice that recently one of the members opposite attended a Commonwealth Parliamentary Association meeting in Namibia, and I wonder if the good citizens of Namibia have FOI legislation. I presume they probably have, I have not done the research. It would have been interesting if you had done a poll of all of those countries and states that had attended that particular CPA forum. If you asked for hands-up of how many parliaments had freedom of information for their citizens, the count would probably be up around 90%, and maybe even Namibia.
It is long, long overdue to give Northern Territorians the same access to information that other Australians and other democracies, particularly Westminster democracies, take for granted. The previous government - and many independent commentators have speculated on this - was definitely one of the most secretive and unaccountable governments in Australia for many years. That was the reason why they never sought to introduce this legislation. For many vested reasons they had a stranglehold on the information and wanted to keep it.
Indeed, the hypocrisy is so great that the previous government used the Commonwealth FOI provisions on many occasions to access information from Commonwealth parliaments and governments - particularly during the Labor years - but, at the same time, denied the same rights and that same level of access to the people of the Northern Territory. That was hypocritical and arrogant in the extreme.
The CLP, for many years in the run-up to successive elections in the past decades, always promised that they would introduce FOI. Certainly, Perron in 1990 and 1994, and Shane Stone in 1997, promised to introduce FOI, and the hopes of Territorians were dashed on each occasion where that promise disappeared as soon as the CLP was returned to power. Many people have commented this evening on the quotes of the current Opposition Leader in response to a question from the current Chief Minister, on 22 April 1999:
- The reality is politicians too often lie to the general public, in my opinion, and suggest to the general public
that they will somehow deliver presents that they have no intention of ever delivering. Freedom of information
is one of those lies.
The CLP promised FOI in the 1990, 1994, and 1997 elections, and here we have the current Leader of the Opposition somehow stating that these were not lies that were presented to the people of the Northern Territory. To come in here today - up on the high board with a double twist and pike on this policy position, a fundamental piece of public policy - and say: ‘I am the absolute champion, as pure as the driven snow, on FOI’, when his previous policy position had been - and again, 2 February 1999: ‘I do not believe in FOI legislation’ - is hypocrisy of the highest extreme. The sanctimonious presentation that he made in this House today will only leave researchers and students of this debate going for many years, trying to reconcile what he said in this House two or three years ago, with the position that he has taken on this bill tonight.
One of his opening comments was that he believed that FOI was inevitable. Well, it certainly was never inevitable under the CLP; it has only taken the courage of the Labor government to bring this legislation before the House. So, they have no credibility in this debate. I pick up the comments of the member for Johnston that they would have had a lot more credibility in this debate, if they came in here and acknowledged the fact that perhaps were wrong - perhaps they were wrong over the last decade - not to introduce FOI when they promised it, and if they said: ‘Well look, we will give this legislation a go’.
As the member for Casuarina stated, there is no such thing as the perfect piece of legislation, especially with something as complex as this. However, we will give it a go; we recognise, ultimately, that the people of the Northern Territory deserve the same rights and access to government information that other Australians have taken for granted. That was all part of the statehood debate, that we needed to have the same rights as other Australians - except for freedom of information legislation, which they would never introduce. So, they would have had a lot more credibility to come into the parliament and state tonight: ‘Yes, maybe we were wrong and we are going to give this a go’.
The Leader of the Opposition quoted at length from the Ombudsman’s submission to the draft bill. Public consultation led to 12 major and significant revisions. The Attorney-General advises me that, subsequently, he met with the Ombudsman, who stated that the revisions substantially satisfied his concerns. Then the Leader of the Opposition, after spending half an hour talking about the Ombudsman’s comments that were no longer relevant to the legislation before the parliament, had the temerity to harangue my colleague, the member for Arafura, for laziness and not paying attention to the detail of the bill before us. Well, he cannot have it both ways; he cannot talk about a previous draft bill when the bill that we currently have before us is substantially different, and has accommodated the vast majority of the Ombudsman’s concerns. Did he contact the Ombudsman subsequent to these revisions and inquire where he now stood on the bill? I suspect not, because it did not suit his political statement tonight.
We have had a lot of talk about exemptions and how this bill stacks up in terms of best practice legislation. I would like to go to an interview on 13 August with Julia Christiansen, on ABC radio, with Rick Snell, a senior lecturer in law at the University of Tasmania, and an expert on FOI legislation. He edits a paper called the FOI Review, and he has been advising local interest groups on the Territory’s proposed legislation, so Mr Snell took a very active interest in this. I would like to quote from that interview. Going to Julia Christiansen:
- Now, from what you have heard and what you have seen - I know you have not seen the legislation yet,
because it has not been made public, the revised legislation – what do you think?
- Snell: Well, what I have heard so far, it has pleased me immensely. I think the government, and
especially the Attorney-General, should be commended for coming the distance that they have from
their original draft proposal, to the key points that have been highlighted by the Attorney-General both
in his talk and in his press release.
- Reporter: So, it is a big change from what we originally saw?
Snell: I think so, both in terms of the detail that has been released and also just in the general direction on
how the scheme is going to be operated. The fact that they are using Western Australia as one of their key
sources of inspiration, and also the New Zealand public interest test, is, and I think will go a long way to
address most of the concerns that were expressed about the original draft proposal.
So much of the comment from members opposite tonight has been about the original draft. The idea of open, accountable and transparent government is to put your policy position out to the people of the Northern Territory, to accept their comments - and we did accept their comments in good faith and made those substantial revisions. Picking up on a point from the member for Port Darwin talking about the exemptions you could ‘drive a truck through if you so chose’. Those were the key words. We certainly do not intend to drive a truck through those exemptions but they are there for good reason. They are acknowledged, being that we picked them up in the Western Australian legislation as being best practice. The Chief Minister’s exemption that could or could not be put on, again, the practice in Western Australia as the House has been advised previously, is that it has never been used. So it is creating fear and loathing when in practice, it should not really be an issue.
We do have third party endorsement of this. The Leader of the Opposition’s comments were really historical in nature and he really needed to do his homework in terms of the legislation that we have here in front of us.
I would like to talk about the impact in practical terms that this legislation is going to have on the agencies I am responsible for. What does it mean for the agencies under my control? Both DBIRD and the Tourist Commission have taken comprehensive action to prepare themselves for the introduction of FOI legislation. Within DBIRD, a review is being undertaken of the adequacy of current information management practices in the department to comply with the proposed information act and provide recommendations to improve information management practices. The specific objectives of the review are to: identify and examine current information collection and management processes for business information; comment on the consistency of record keeping and record management processes and practices adopted by the various divisions within the department; compare current processes for collecting and managing information against the requirement stipulated in the proposed NT Information Act to ascertain whether the department’s record keeping and record management practices will comply with the requirements of the legislation; identify areas where the department’s current information management practices do not comply with the proposed legislation; and to identify strategies for improving the department’s compliance with the proposed legislation.
The review will focus on the adequacy of current record keeping and record management practices and the ability for the department to locate information in a timely manner. The review is scheduled to commence late this month with a draft report available by mid-December. A schedule for implementing the strategy will be developed in line with the department’s capabilities and resource availability. After the schedule and resource allocation is endorsed by DBIRD’s management board in February, it is planned to commence implementation in March. The department will be working closely with other agencies to ensure whole-of-government consistency and implementation of the strategies. Similar processes are at hand at the Tourist Commission.
I take this opportunity to extend my thanks to the staff at both agencies for their efforts in planning this significant change. It is going to be a very significant change within the public service but one I am absolutely confident our public servants will embrace and adapt to very quickly regarding the new practices that we are putting in place here. It is all about giving Territorians access to information that other Australians have taken for granted for many, many years.
I have checked with some of my colleagues on the comments made by the member for Nelson, saying that information is not currently available and would this information be available under FOI. I do not have the exact words or the Hansard, but it was basically saying he could not get the information out of the previous government and could not get it out of this government. He used two examples. One was the impacts of the damming of the Elizabeth River. I have checked with my colleague, the minister for DIPE and he states that, as far as he is aware - and we have had a quick check with the minister’s office - they have never been specifically asked. All you have to do is ask and if there is a report there, you can have access to it, because we have absolutely no intentions of damming the Elizabeth River. There is no reason why, if a report such as that exists, member for Nelson, we would not give you access to it.
The other example the member for Nelson gave was the reasons for the closing down of the subsidised GP services at the Palmerston Health Precinct. Again, my colleague, the health minister, has advised that a full briefing was provided to the member for Nelson on 22 January 2002. All information was disclosed at that time and there is no separate brief within the department. There is only the Cabinet submission on that particular issue and the information - which is what this is all about - as to why the policy decision was taken to cease with that particular subsidised service, was provided
So we can get caught up in terms of what documents are going to be available, and paper trails, and, at the end of the day, it is all a matter of the will of the government to be open and accountable to the people of the Northern Territory. The whole tenor of the government is that is what we want to do. We are not seeking to hide information. If there is very good reason why information should be exempt, then there is an appeals process in place. The legislation does replicate, as far as we are aware - and there is independent comment to this effect - best practice in Australia. We do commit to a public review of this legislation in 12 months, and in five years.
We do believe that the whole tenor of the government is to provide access to the people of the Northern Territory that other Australians take for granted. With those comments, Mr Acting Deputy Speaker, it is going to be a significant change within the public sector. I am sure that that change will be efficient, and I commend the bill to honourable members.
Mr BONSON (Millner): Mr Acting Deputy Speaker, today I give my support to the Information Bill. Like other members of this House, it is not often that you feel supreme pride for participating in introducing a bill that will be vital to the platform of what we know as modern-day principles of western democracy that all other jurisdictions in Australia have taken for granted.
The denial by past Country Liberal Party governments to a fundamental foundation of democracy is quite mischievous. The question must be asked: why? What did previous governments have to fear? What did previous Country Liberal Party governments have to hide? These are the questions Territorians need to ask themselves: what was there to hide, what was so important to keep hidden from the public view? I would like to tell Territorians that the CLP would never have introduced freedom of information legislation. How can I be so certain? Quite simply, let us look at previous debates in Hansard, and what previous Country Liberal Party governments have said about freedom of information.
I would like to ask the new Country Liberal Party members, particularly the shadow Attorney-General, the member for Goyder, and the member for Araluen, to listen to what your leader has said about FOI in the past. I know other members of this House have made similar references to previous Parliamentary Records, but I feel it would be remiss of me if I did not add this to my own speech. Listen to what your colleagues have said in the past, and this includes the member for Macdonnell. After hearing these Hansard quotes, look them in the eye and ask them for the truth: why did they not introduce freedom of information; why did they treat Territorians with utter contempt?
A couple of quotes on freedom of information. Comments by the Opposition Leader, Denis Burke, on 22 April 1999 in response to a question from Clare Martin in relation to freedom of information, he stated:
- The reality is politicians too often lie to the general public, in my opinion, and suggest to the general public
that they will somehow deliver presents that they have no intention of ever delivering. Freedom of information
is one of those lies
This is a joke, this is a joke on freedom of information legislation. It’s the reason why previous Chief Ministers have
said it’s been a charade. Therefore, we won’t introduce it.
The other thing that happens with freedom of information legislation is that it invades the privacy of individuals.
Under the so-called notion of ‘I need to get this information on government or some certain public affair’,
individuals’ privacies are being abused.
The member for Brennan again, on 16 February 1999, in response to another question by the member for Fannie Bay in relation to freedom of information:
- … I can say up-front that I don’t believe in FOI legislation. I think it’s unnecessary. I think it’s overly bureaucratic.
I think it’s not suited to the Northern Territory.
I don’t believe it’s necessary in the Northern Territory.
I certainly don’t believe that’s what Territorians want and I don’t accept it.
On 11 August 1998, the member for Brennan continued:
- I do not believe FOI works …
I certainly believe that it is not needed in a jurisdiction as small as the Northern Territory, particularly
given the closeness and availability of government MPs to their constituents.
I do not believe there is a real need in the community for freedom of information legislation. I believe
Territorians are comfortable with the sort of information that they can access. They have the opportunity
to pass judgment every three or four years if they do not trust their government.
How prophetic this was, especially in 1998, as we all know that we were very successful in obtaining government in the last election. One of the platforms of obtaining government was freedom of information. It was an issue that I campaigned very vigorously for during the election campaign, and have certainly supported since. The Labor government has made a commitment to introducing freedom of information in the community. People are waiting to have access to private information that is held on them, and possibly to correct information that in the past has been wrong. It is a fundamental foundation of today’s democracy, and I am proud to be part of a government that is, for the first time, introducing it. It is one of those opportunities that occurs too infrequently, where you can really make a very positive change to your community. Freedom of information, in my eyes, is all about government accountability to the people. The hope that I have is that, through this accountability, we will create a better community and a better society.
The member for Macdonnell stated on 2 June 1999, in relation to freedom of information:
- … it gets farmed out to the public as a sham, as a farce, as a lie. It’s just a name to apply to a piece of
legislation to satisfy the public perception, and perception is everything.
… some sham to try to convince the Territory population that freedom of information is some sort of wonderful
thing that has to be there when what they are trying to do is simply dupe the Northern Territory population.
This Hansard quote basically summarises the effectiveness of previous CLP election campaigns. I liked it when he commented: ‘It’s just a name to apply to a piece of legislation to satisfy the public perception and perception is everything’, because that is what the CLP in the past was about.
To pick up on comments by the member for Johnston in regards to policy. The member for Johnston has really hit a nerve there, and I believe that, at the moment, they have no policy. There comes a time when you say: ‘Yes, okay, X amount of years ago I was wrong, I made a mistake. Yes, I believed this at that period of time. Well, guess what? Right now I do not’. It would have been better suited for all members of the opposition to come out today and say: ‘Yes, in the past we did not support freedom of information - these are the reasons why - but today we are going to be supportive of this legislation. We are going to back the government because of all the right reasons’. At this stage, they have not shown the class to even come forward and say: ‘Yes, we have made a mistake in the past, we want to move on from that. We have changed as a party, and we now think freedom of information is very important to the foundations of western democracy’. These comments will forever condemn the members for Brennan and Macdonnell, and the past Country Liberal Party governments that denied Territorians a cornerstone of modern western democracy.
What does the Labor government offer all Territorians through this Information Bill? We hope to provide a legislative framework for access to government and personal information; protection of personal information, that is privacy; an independent statutory officer, the Information Commissioner, to oversee the regime; and legislative base guidelines for keeping and managing government records and archives.
This legislation aims at achieving a number of practical purposes: it will provide an avenue for people to correct personal information held by the public sector that may, for various reasons, be incorrect or inaccurate; it provides a vehicle for responsible collection and correlation of personal information by the public sector; and what the opposition has conveniently forgotten in relation to freedom of information, it hopes to deliver practical outcomes for Territorians and make stronger communities; and it forms a foundation of a healthy, democratic future. The founding principle behind freedom of information is to provide government accountability and the right of individuals to access information in relation to the public interest - either his or her own, or the community’s.
However, it is well recognised that individual right of access to information in the public interest was denied by the past CLP government, through the denial of access for Territorians to freedom of information legislation. They want us to believe that releasing information as they saw fit, without a legislative framework, was sufficient. What an insult to Territorians. Again, it would be great for the next speaker from the opposition to get up and say: ‘Yes, okay, we made a mistake. We have rethought, we have listened to this debate. In the past, it was wrong for us to deny Territorians the right to freedom of information. We have changed, we are looking forward to the introduction of freedom of information, and we are looking forward to working with this government’. However, sadly, I do not think that is going to occur tonight.
This bill will attempt to provide access to information where release is in the public interest but, like many legal rights, is not an ultimate or absolute legal right, as it must be balanced against the rights of other individuals and the community - like personal privacy, witness protection, law enforcement and a number of other rights.
The Attorney-General, in his second-reading speech said that the right to access information must be balanced between competing interests. How can this be balanced? Some information must be exempted, by limiting access to sensitive information. Why? The Attorney-General again said:
- 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 private interests, or
on the private or business interests of other persons.
The exemptions in this bill are not dissimilar to those operating around Australia. I believe we have the balance right. Again, in the Attorney-General’s second-reading speech, in regards to the court:
- 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.
It goes on, in a later paragraph:
- 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.
This is the concern that I understand I am hearing from the opposition about exemptions: there needs to be a balance between the public interest and the individual and the community at large. It is a grey area and we have attempted, as best we can with best practices, to find that balance.
I am also happy to say that this information legislation will be reviewed in five years. It is a wonderful undertaking and, once we have had a look at it in five years time, we will be able to make our decision on changes regarding exemptions. But at this moment, I would encourage the opposition to work with us in making sure that the public interest is protected.
The balance between individual rights and community rights in modern times has become a serious debate for good governance and healthy communities. The statute framework for access to information is an attempt to create a better community, and must also consider the release of information that could unjustly damage individuals to such an extent that it could not be considered public interest. I have asked myself questions about exemptions whilst listening to the debate. Again, it is important to realise that the exemptions must be a balance between what is the benefit to the community and individuals and what is damaging to both individuals and the community. For example, I would not want my private health records accessed by other persons. This seems only fair to me, as a community member, that my private information stays private.
I would like to briefly address some of the Opposition Leader’s amazing comments in this debate. The member for Brennan accused members of the Labor backbench of having speeches written for them by advisors.
Dr Burns: You didn’t, did you?
Mr BONSON: No, I have written it myself, as you can tell.
This is negative and misguided. I have much respect for members of the Labor backbench. To the member for Brennan: please do not compare us with past CLP backbenchers; this is an insult to all of us. The member for Brennan also said in today’s debate, Territorians show some faith in politicians. Indeed, I do, and that is why this Labor government has introduced the first ever Freedom of Information Bill. I doubt very much if Territorians have any faith in the Opposition Leader.
This is an historic event today and, every member of this House when they vote in support of this bill, will mark this date down. This is something that you can tell your children and your grandchildren about. The member for Brennan seems to have missed this opportunity to right some wrongs of the past. His constant whingeing and whining is wearing thin in the community. Often the member for Johnston states: ‘the CLP needs to [inaudible] policies’. I agree again. Past propaganda themes so successful in past elections will not work this time around.
The member for Brennan also stated that he feared the exemption certificate power ultimately rested with the Chief Minister. We heard here tonight in debate this is compared favourably with the Western Australian legislation and, at this stage, no Premier has issued an exemption certificate. I certainly will keep my eye on any exemption certificates given by the Chief Minister. I am sure all of the parliament will, and will comment if it does occur. But I have faith that the Chief Minister will only use this power in very limited circumstances.
In his contribution to the debate, the member for Macdonnell whinged and whined about freedom of information exemptions. For a person who often comes into this Chamber to lecture us about foundations of western democracy and parliamentary supremacy, I find it absolutely ludicrous that he does not support this bill tonight and come out strongly in favour of the bill. In fact, the member for Macdonnell is a person who should, on previous comments, come out clean tonight and basically say: ‘Yes, I have made a mistake in the past. The reasons I said we did not need freedom of information in the Northern Territory were basically self-interested and politically orientated’. For a person who consistently states that democracy is something that he stands for above all else, he needs to realise that freedom of information is considered a foundation of that democratic right in a modern society.
On the Chief Minister’s power to issue exemptions, this power can only be exercised in relation to, I believe, three of the 12 exemption categories. As members have heard, the power will be exercised rarely. In Western Australia, it has not yet been invoked, so I think that this bodes well. The Information Commissioner will report on how many times the power is used, and I am sure that everyone in this House will look forward to hearing that report. There is proper accountability over the exercise of this important power. The Australian Reform Commission has recognised that an exemption certificate power is warranted.
To comment on a last few things on freedom of information, I am happy to see that retrospectivity has been increased from five to 10 years after community consultation. I know definitely, in conversation with all members of parliament, that they thought that this was an appropriate step, and people quite strongly argued that it should be extended to 10 years. I am happy that the community has agreed with us. I am also looking forward to the public review in five years to possibly having the retrospectivity put right back to self-government. There are a lot of people out there who would like access to information from the 1980s, and I look forward to that review in five years. This 10-year period will give the public service the opportunity to correlate information that can be accessed by private citizens.
Finally, I feel very proud to be part of the freedom of information legislation. It was one of the bugbears that I had during my life, and one of the things that I was ashamed to say: that the Northern Territory was the only jurisdiction in Australia that never had freedom of information. That became the case in 1992. So, for 10 years we were shamefully disgraced; we were the only jurisdiction in Australia not to have freedom of information, and no matter how many times past Labor oppositions bought this up, the CLP arrogantly dismissed it.
Well, prophetic words by the member for Brennan that the decision on freedom of information would be made in four years time, and it certainly was. It is an opportunity tonight, if any other members from the opposition are speaking, that they come clean, that they talk behind closed doors and say: ‘Okay, let us take this on the chin. We made a mistake in the past. We are going to correct our mistakes, move forward and we are going to get behind freedom of information’. For any opposition or private citizen, access to information from government is very important in making decisions in their lives, and certainly keeping governments accountable. So future oppositions, whether they are Labor or Liberal or whatever party they might be, Greens or Democrats, will have the option to access information through freedom of information and this makes for a more accountable government.
Madam Speaker, that is all I wish to say on the matter at the moment. I proudly support this bill.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, first of all, may I thank the great number of members who took part in this debate today. It has been wide ranging, generally constructive, and we have really probed around a lot of the detail of the bill.
I suppose, before I cut to the main area that most people have expressed concerns about - which is the use of exemptions and exemption certificates - and go back and basically give an overview of that, I would like to confirm here in the House that there are a lot of things I take that this Assembly is happy with. We have heard very little about the government record keeping. I believe that has attracted very little controversy or comment through the time the bill has been out. I am assuming that everyone is comfortable with that. I am equally assuming that the privacy principals that are in the second part of the bill have also met with the approval of members here, given that we have not had a major concern expressed today in the debate or, indeed, earlier on in briefings in other forums that we have all been attending and pursuing these issues. That gives me quite a degree of pleasure, that those areas seem to be attracting very little comment from members.
There are areas built within the act that I would like also to, if you like, confirm in the summing up speech. Regarding retrospectivity, there has been comment about the government allowing no time limit whatsoever for personal information. That will be really limited by the practical ability of agencies to actually locate information, particularly very early in the piece. For government information, there is a 10-year retrospectivity, which was a departure from our original draft, which was suggesting five years. That, I believe, is a major allowance to access for Territory people, going back 10 years initially. I am sure when the review is conducted after the first five years of operation of this act, retrospectivity will be very closely looked at, because you would expect that, first of all, government agencies will become much more expert in keeping records in a form that is suitable for the operation of this act. The second thing is that there will be a mapping, if you like, agency by agency, of what actually is still there, because there have certainly been records lost over the years. So we really need to know exactly what is and is not in the archives of each agency if we are going to have some sensible expectations about what will be available from further back.
The secrecy under other acts, we brought that in from five years to three years, and that is again a concession, with the one exception of sacred site legislation. We believe that the secrecy surrounding information on sacred sites is ongoing and will be ongoing forever. The review of the act we have mentioned, and the exemption certificates being current for two years is also clearly identified now in the act. So, there are some things that I believe are, from the way that this debate has proceeded, that have not attracted a great deal of concern from members. I am taking it, by process of elimination, that those are areas that people are basically okay about.
Similarly, we have not had, despite having distributed yesterday and again this morning the fees and charges that we propose to put into the regulations of this act, any significant comment on those as well.
Mr Mills: Well, that is wrong.
Dr TOYNE: Well, if there has, I apologise, because it has been a very long debate. What I want to say is that regulations do not need to be brought forward in the House. They are made through a separate process. I wanted members to be very much appraised of what the scale of fees and charges were going to be. You can see from the regulations that for personal information we have tried to keep costs away from that as much as possible. In effect, there is no application fee, no processing charge, and you get two hours free supervision by a public servant while you go through material that you want to pull your own personal information out of. There are other charges later on - photocopying and so on - but nothing of any great significance. We have tried to do that, because that is what the public told us to do. They wanted to see free access to their own personal information, and we have tried to honour that in the way those charges are set.
Let us pass now to what I think has been the core of the debate today, and that is the use of exemptions within the bill. I would first of all clarify, as I believe that many of the members have actually misunderstood the way the exemptions are placed on particular documents. If you look very carefully in the act, we are not talking about exemption categories immediately withdrawing documents or materials out of public access. What we are talking about is, if those materials pass a public interest test - in other words if it can be proven, or it is under the criteria embodied in what will be the act - then an exemption may be placed on those items. Further to that, the public interest tests that are built now into the bill are different to, and probably more extensive, than the original public interest test in the original draft.
Mr Elferink: Well, they are different. That was my point: they are different.
Dr TOYNE: It embodies, as the member for Macdonnell quite rightly pointed out, some of the criteria that came out of Howard v Treasury, within the Federal Court. The second thing was the New Zealand criteria for public interest. So, we have taken the New Zealand criteria, as a result of some strong recommendations made by the Ombudsman to that effect - and by other people who submitted. We have moved considerably on that particular area to include what is now a pre-tested set of criteria for public interest. It is not an unknown concept in law, and we have gone to the areas where it has already been tested within other jurisdictions, to set up a public interest criteria.
So what happens when someone takes an application into one of our agencies? The first thing that will happen is that a designated person, who has carriage of the Information Act within that agency, will examine the application and assess documents for release. Obviously, there can be several outcomes to that: they can be released; they could be released in part; or they could be withheld under an exemption.
As far as the applicant is concerned, any unhappiness at that stage then goes to a senior member of that agency. If that does not resolve the matter, it then gets passed on to the Information Commissioner. We have several reviews that would be done on any decision that is made within an agency as to the exemption, or otherwise, of a particular piece of information.
There are a lot of safeguards in there. There are three steps, one involving a statutory independent person, all at arm’s length from the political arm of government. There are quite significant rights to review built into this bill. Beyond that is the possibility of a court testing a decision if someone is particularly persistent, if you like, in wanting to pursue information that they have applied for, and still feel that they have not been correctly judged to be exempt.
I want to make this clear to members: we are not talking about buckets or truckloads of documents that come into these categories being immediately taken out of access. In fact, the vast majority of them would probably not pass a public interest test, and will be actually released to the applicant. We believe that, based on examples interstate, particularly the Western Australian act, that the vast majority of information applied for will be available to the applicants.
We have been trolling through a lot of these exemption categories and, I guess particularly the opposition, has been trying to paint this picture of a real broadening out, or a completely out-of-kilter set of arrangements when you compare that to what is around us. When you compare Western Australia and the NT Information Bill, you will see some remarkable similarities. That is no accident; our Cabinet made a decision that we would model the FOI part of the bill as closely as possible to the Western Australian act, for one very good reason. We consulted with people who are involved in the operation of that act in Western Australia, and all we heard - from Rick Snell to people who are actually operating in the Western Australian government system - is that it is working pretty well, and that there are not any great outcries about things that are not being handed over to people who have applied for them.
I will not read them all out, but there are 15 categories in Western Australia, and we have 12, and almost all of the categories are directly comparable. Cabinet and executive council documents in Western Australia are exempt. We exempt matters confidential to government, Cabinet and executive council; it is a very similar provision. Inter-government relations, matters affecting relations with other governments, that is the second category. There is personal information, privacy and cultural information. So, you can actually draw a very direct parallel between the West Australian act as it is in operation right now and our act as it comes into operation. I believe that we have made a sensible decision there in that, instead of moving into uncharted areas, we have basically aligned our FOI section of the act as close as possible to what is seen by many people around Australia as being the most successful FOI legislation currently in operation.
I can certainly reassure members that there are many inbuilt checks and balances within the placing of exemptions over information within government agencies. A public servant, theoretically, could take whatever line they like in making a decision, but that decision has to hold up, potentially, to a review from their senior supervisor, a review by the Information Commissioner, and even a court review of that decision. That would be - and certainly previous experiences have shown it to be - quite a good moderating influence.
In terms of exemption certificates and the ability of the Chief Minister to put in a very small number of extremely exceptional circumstances a unilateral declaration of an exemption certificate, I would like to read out a brief for members just to put more information regarding these exemption certificates.
- The Leader of the Opposition has made representations in the media that the Chief Minister has the power
to veto information to prevent its release. The power has been presented as a general one which is a
misrepresentation of the exemption certificate power in the bill. The power of the Chief Minister is
contained in the exemption certificate provisions of the bill. The power is not a general power to exempt
information from release. The issue of an exemption certificate is conclusive evidence that it is not in the
public interest to disclose information identified in the certificate. In other words, the Chief Minister,
along with all other decision-makers under the act, must first determine that the information in question
meets the test for exemption under the relevant provision of the bill before an exemption certificate could
be applied.
The power to issue exemption certificates does not apply to all information. It only applies to information that
is accurately characterised as either executive body information, Cabinet and executive council, security and
law enforcement information, or privacy and cultural information. No other information can be made the
subject of an exemption certificate. If the Chief Minister determined that the information for which a certificate
was being requested was in one of these categories, he or she must then determine whether it meets the test
for exclusion. For example, in the case of security and law enforcement information it must meet one of the
‘harm’ tests in clause 46. One example of these is disclosing information that would endanger the life or physical
safety of a person. Furthermore, there are matters in the security and law enforcement exemptions that are
specifically excluded and, therefore, are specifically excluded from the exemption certificate power. For example,
there can be no exemption of, or no exemption certificate for, information that would reveal that the scope
of a law enforcement investigation has exceeded the limits of the law.
In the case of privacy and cultural information, the Chief Minister would have to first determine that the
disclosure of information would either amount to an unreasonable interference with a person’s privacy, or
would disclose information about an Aboriginal tradition and that, in both cases, it would not be in the
public interest to disclose that information.
The power is there to protect the rare occasions where the sensitivity of the information is such that it should
not be subject to the ordinary review processes. The Australian Law Reform Commission has recognised that
an exemption certificate power is warranted. An example of this is where an exemption certificate may be
warranted where information related to the witness protection programs that we have set up here in the
Northern Territory. Most people would immediately recognise that this is the sort of information that would
be the subject of an exemption, because to disclose specific information may endanger the life of the person
under the program.
I hope that helps a little with the direction that those exemption certificates are going within the overall provisions of the bill.
Turning to the public interest test, I have already alluded to the fact that we have imported both the New Zealand, and some aspects of Howard v Treasury, into the public interest test that is stated in the bill. Every single exemption and, to some degree, the exemption certificates, are all pinned back to those public interest tests. Every single exemption applied over a document must satisfy those public interest tests - not only satisfy it from the point of view of the initial officer who is handling an application but, potentially, to satisfy the senior officer, the Information Commissioner and a court. So it is potentially quite stringent testing of any decision that is initially made.
Having dealt with those two areas, I would like to go to some of the issues raised by individual members and give you some response on them.
The member for Goyder, on the creation of a right under clause 7; this was dealt with by later speakers, but to make it absolutely clear, the right under the act creates a statutory right within the operation of that act or the would-be act. It is not creating rights within tort or within common law. It is simply confined to the release or exemption of information within the operation of this act. It is a statutory right. It is not in any way linked to existing rights within common law or within other legislation.
The harm tests: information is only exempt under clause 44 if it meets the requirement of clauses 45 and 49. I am saying that that linkage back is very carefully built into the act. Clause 45 was specifically referred to in the second-reading speech as being one of a few class exemptions within the bill. The public interest in the non-disclosure of Cabinet information is so clear and well accepted around, not only Australia but in other countries, that it is not stated in the FOI legislation. It is the preservation of Cabinet solidarity that has been part of the Westminster system for many hundreds of years. The harm tests are part of other exemptions prejudicing the investigation of a breach of the law, and the Legal and Constitutional Committee of Queensland parliament discussed the harm test of exemptions in its review of the Queensland FOI legislation. We related our work also to that. The example of the taxi driver who applies for information that you used in your contribution, raw material - for example, statistical, technical, scientific or factual information - is not included in the exemptions and you will find that in clause 52(2).
The public interest test I have dealt with in terms of how that is defined within the act and how it is applied. I would presume that you would be au fait with that.
Turning to the member for Macdonnell, you made some play on the use of the word ‘mischievous’ within the bill. Mischievous, as you quite rightly say, could be taken to be a subjective term, but I point out again that the entire structure of the exemptions and the public interest test would expose any judgment based on mischievous to several reviews including, potentially, a court review. I believe that there will be a number of concepts within the public interest test that, although we have started with a firm base under the use of those terms within our act, will be defined and refined by the particular examples. That is common to all legislation and to law, that as they are applied to more and more contexts, the definition of them becomes more and more certain under the operation of the legislation.
To take the member’s assertion that ‘mischievous’ cannot be interpreted to mean ‘embarrassed’ because clause 50(2)(a) says that the possibility that the disclosure may result in embarrassment or a lack of confidence in the government or in the public sector organisation, is not a relevant factor. That is very clearly stated within that area.
Mr Elferink: Yes, but who makes that assessment? Oh dear, it is the person who issues the exemption certificates.
Dr TOYNE: Now hang on, let me finish. With you burring away over there, it is a bit hard to keep on the point.
The court appeals can be appeals on access to proper process and natural justice. It is possible for all statutory processes; for example, the Ombudsman or the Anti-Discrimination Commissioner. There is a limit on the appeal process because the government is committed to providing accessible and affordable FOI. The Information Commissioner provides such a process with provision for mediation. Appeals to the Supreme Court are limited in ordinary case to matters of law. Nevertheless, any decision that was made ultra vires, that is, without power, may be made under the usual court processes. Any exercise of the exemption certificate power that was exercised ultra vires, for example, for information not covered by one of the exemption provisions, would be ultra vires and, therefore, could be tested as a matter of law. So, there is the possibility of using the Supreme Court, as there is in the cases of appeals against Ombudsman or Anti-Discrimination Commission or other statutory decision-makers.
Turning to the Leader of the Opposition, he made quite some point of the use of commercial-in-confidence, under clause 57. The commercial-in-confidence exemption provision, in fact, answers the concerns and criticisms that have been made of the commercial exemptions. Such information is only exempt if it can be shown that release of the information would be likely to expose a commercial undertaking, unreasonably to disadvantage. Clause 57(2) provides the matters to which regard may be had in determining the question of disadvantage. It is not just open for the government to declare information to be commercial-in-confidence.
We have to get away from this vision that people have been trying to create of the red stamp in the room and, you know, away they go. These categories do not automatically underlie the declaration of an exemption or an exemption certificate, although the exemption certificate is confined to two of the categories. The acid test, if you like, of the exemption is public interest, and that public interest argument has to be applied according to the criteria in the bill, and is open to review in every case except the small number of cases where the Chief Minister may use an exemption certificate.
The Leader of the Opposition also made a major play about: ‘Oh well, we took this …’, his draft bill, the one that he did not have the courage to bring in here, ‘… and we then sent it out to public consultation, and it brought it back in a diluted form’. Well, let me give the Leader of the Opposition a bit of a run-down on the amendments that were brought into that initial draft bill as a result of the public consultation:
We redrafted the Objects clause to make the whole spirit of the legislation pro-disclosure,
not pro-exemption.
back even further.
that is made through some other legislation, will be removed after three years, not five as originally proposed.
from exemption certificate power, removal of the ministers and power of delegation to CEOs, and substitution
of the Chief Minister as the only person with the power to issue certificates.
information received from bodies that would be exempt under other legislation. For example, land
councils are exempt under the Commonwealth law, as is ASIO, our security organisation. So they will
be exempt under our act to reflect the situation with other legislation parameters.
members today to have a look at how much this scheme is going to cost individual applicants.
now get a go at it, like non-naturalised applicants.
Moving to the member for Port Darwin. Clause 52(5) is not a set of exemptions. It may provide factors that may be considered in determining whether it is not in the public interest to release information. They already exist at common law. They could be applied as factors to be considered, even if they did not appear in legislation.
So you can see, member for Brennan, that contrary to your assertions in your contribution, we have actually moved, very significantly, as a result of the public consultation. The overwhelming effect of the amendments that we introduced into the original bill has been to increase access and increase accountability, and to clarify and extend the retrospective action of some of these provisions back into existing records.
I have said very publicly I am very comfortable standing here introducing this into parliament. Ultimately, it is going to be up to the people of the Northern Territory to judge whether we have done this job well. It is up to the opposition to acknowledge if this act is working well, as I am sure it will be. I hope to see a more positive attitude to it as we move through to the implementation, and all the issues that will probably come out of the use of this new legislation. It is going to be a very exciting, if scary, time. There will be times where the ability to take Cabinet documents out 10 years behind us is a growing edge that is following us along. Anything before that might reveal things that are still pertinent to members who are currently in this House.
But that covers at least the key issues of the debate, Madam Speaker, and that is all I want to say at this stage.
Motion agreed to; bill read a second time.
In committee:
Information Bill (Serial 85):
Clauses 1 to 44, by leave, taken together and agreed to.
Clause 45:
Mr WOOD: Mr Acting Chairman, I move amendment 25.1. I start by saying that the reason for these amendments is not to be negative towards this bill, it is to be positive. This is the sort of bill you actually should work in reverse. You should not be adding things to it because the more you add to a bill like this, especially with the exception clause, the more you will make it harder for people to access information and the more you will go against the very objects of this bill. What I am trying to do here is take away some of those clauses or exemptions that I do not believe are necessary. I believe that these exemptions will not make any difference if they are not there - you just do not need them.
For instance, the clause that we are talking about now, which is clause 45(1)(a)(vi), is basically saying that we will exempt anything that will:
- … disclose the communication between ministers about the making of a decision or the formulation of a policy
if the decision or policy is of a kind generally made or endorsed by an executive body.
That clause is so broad you can just about exempt anything through it because the words ‘generally made or endorsed by an executive body’ leaves the world open for someone to say that that generally could be something the executive body might endorse. That is a huge statement to make. It appears as though this has been added, a bit like a safety net: if some things might have escaped the exemptions, this clause certainly will pick it up. I would imagine the next clause will do exactly the same.
If the government is serious about saying that we are positive in our approach to people having information, if we believe in the objects of this bill, then I believe it should be omitted. It would do the bill a lot of good if it was not there at all. These ‘Executive Council, Cabinet and Territory economy’ type exemptions as written under clause 45 can, to some extent, strangle public debate. I know further on in this area that you are not to look at, for instance, information that might be prepared for Cabinet. However, sometimes that is the very stuff that people want to debate. They want to know what the agency was saying before the minister and the Cabinet made a decision. This clause 45(1)(a)(vi) just makes it totally impossible. There is nothing there that you can discuss, for people to be able to try and understand how a policy was made. So I ask the government to support this. It will not do them any harm not to have it in there; it is an extraneous clause of the bill.
Dr TOYNE: I am taking it in the spirit that you put it forward, member for Nelson. It is easy to read through the bill and start to imagine this vast body of information that is going to be squirrelled away as a result of this particular clause.
I can certainly say on two fronts - one is that any exemption placed over that type of document will be just as subject to the public interest test as any of the other exemption areas of the exemption categories. I believe - and I can certainly speak from my experience as a minister to date - that the volume of the type of documents that you are talking about and the type of contents that are there, we are not getting dozens of these a week or anything. It is where one minister needs to convey to another minister some information to coordinate their two processes. So you would probably be very disappointed if you saw both the number and the content of these types of documents.
But to clarify what clause 45(1)(a)(vi) is saying, it provides information is exempt under the executive body exemption if it:
- would disclose a communication … about making of a decision or a formulation of a policy if the decision or policy
is of the kind generally made or endorsed by an executive body.
I personally think with clause 45(1)(a)(vi) there would be no difficulty in categorising that as something that is moving on into Cabinet or not moving on into Cabinet. Not a great volume of documents are there. Most of them may never subsequently inform a Cabinet debate. They are all reviewable by the Information Commissioner.
I can see your concerns about width of the exemptions, but we really feel that there is no need to remove that exemption category.
Mr WOOD: Attorney-General, I have a couple of comments. If it really affects so few documents, my argument would be: why have it at all? It is really for a very rare occasion. The other thing is that, if it is meant to be aimed at decisions or policies endorsed by an executive body, then shouldn’t the word ‘generally’ be ‘specifically’? The word ‘generally’ is such a broad word that, even though it may never go to the executive body, it could go one day, or it might go. Whereas the word ‘specifically’ would be a much better word. In fact, that is the word I used in my speech that was used in other jurisdictions.
The other area that you mentioned is that, of course, people have the right to review. If you put in things that obviously are going to need to have the right to review, you increase the length of the process. If they were not there in the first place, you would not have to go down this long path. It adds to the bureaucracy; it is not needed. I hear what you say that there are very few times it would ever be used. It is one of those things that adds to the bureaucratic process and makes it a little harder for people, and is so rarely used I do not think that it needs to be there.
Dr TOYNE: I can immediately think of a number of topics that might be in a communication between ministers that would very quickly attract a public interest exemption. So, I do not think that the existence or non-existence of this category is going to be prevent the exemption going over the material we sometimes see in these papers.
I will give you a clue. Obviously, I cannot talk about specific matters that are in a particular document, but things to do with information about the health of a community. Perhaps there is an epidemic of gonococcal disease or something where it is quite sensitive and politically explosive material if it gets out, particularly by stigmatising a whole community of people. In my portfolios, in areas of Correctional Services with prisoner security, there are often matters that come through that would have no business going anywhere else. Yet, if I do not share that with some of my colleagues prior to, perhaps, a submission coming to Cabinet, it does make it quite difficult for us to make an informed decision.
We see this is as part of the protection under the Westminster structure of the solidarity of Cabinet decision-making. What I am saying, it is not in the same category as an exemption certificate. We are not talking about someone being able to unilaterally place that, we are talking about an exemption that has to be justified by a public interest test. I do not want to mislead anyone, so I am making absolutely sure. This is an exemption category that says that once that document has been identified as part of the Cabinet process, then that, as a category, draws an exemption. It does not have to be on the individual circumstance of that particular document, it is a broader category, but they are reviewable by the Information Commissioner.
Mr MALEY: Attorney-General, that is exactly the point which I have tried to make. You have these broad categories. If you look at the proposed amendment, to that clause 45(1)(a)(vi), and the word ‘communication’. What if the communication contained - remembering it is not something which is within the scope of clause 45(2) - material which did not have a prejudicial effect on the public interest, there was no harm, it was just communication between two ministers - a minister had been briefed by his department, and there was some sort of communication between another minister, and it turns out that there could be no harm caused by the disclosure of information? Would that material, on your interpretation, then be made available to the applicant?
Dr TOYNE: Technically, it comes within an exemption, but there is always a possibility of releasing, on the sort of judgments you are talking about, if there is clearly no harm to the public interest. Even though it has attracted that category as being an executive council/Cabinet document, there would still be the possibility for release, and that would have to be negotiated with the Information Commissioner.
Mr MALEY: Well, doesn’t that beg the question: why not draft it in such a way, in terms of the exemption, saying that this material is available unless the particular organisation can demonstrate there is going to be some sort of prejudicial effect on an individual, or there is some sort of identifiable harm - they are the words I think you used in that second-reading speech - rather than have this exemption, which can be stretched over really anything? Then it is really up to the government of the day to exercise its discretion to see whether or not that is going to be released. The criticism I was trying to draw your attention to is: you talk about rights and qualify that in terms of what sort of rights they are. Why couldn’t you say: ‘This material is available unless you can demonstrate x, a and b; for example, that it is going to have a prejudicial effect or, secondly, it is going to cause some sort of identifiable harm’?
The second query, in relation to the point that the member for Nelson made, which is a good point, the words ‘generally made or endorsed by an executive body’. Now, what does that mean? Why don’t you use the word ‘primarily’, or ‘specifically’? What if there is no prejudice to the public interest, there is no identified harm? Why isn’t the onus upon the public sector to demonstrate those two things? Why use such words, ‘generally made’? It is so broad, it really is not advancing the situation.
Dr TOYNE: We have made a distinction between exemptions that apply to the executive processes of government, and that it is generally accepted around the country that that species of decision-making, if you like, and the information that informs it, are best kept out of the public eye for the public interest. That is not our idea, that is in FOI regimes right round this country, and elsewhere.
We are not really talking, in this case, of a particular harm that might accompany one of these documents. We are talking about enclosing the inner part of government decision-making, the Cabinet and the executive council, in a secure zone where information can be exchanged freely without any fear that it be subsequently released or prematurely released. I guess what these two provisions are doing, is they are working at the boundary of that enclosed area. We are saying we believe that there are occasions where two or more ministers will exchange information prior to a process of decision-making being introduced into the Cabinet. They do require that freedom to, basically, exchange information, arguments and options, without fear of it being whisked away into a public process.
We maintain that the preliminary exchange of information between some of the ministers is integral to the process - certainly how we have experienced it as a Cabinet. We found that very often, ministers might have to work up a submission to Cabinet as a whole, which may involve the health minister and I working together, or the Minister for Community Development and myself working together, or any combination, depending on the matter. We believe that we should start with that boundary in place, if there are any concerns that come up on the part of the Information Commissioner about some overuse of that category - but I quite honestly do not believe that will occur.
Mr MALEY: Attorney-General, adopting your mentality, that means we would not do anything which is outside the scope of what is done in other states and, if every other state adopted that, we would be in this stasis, because no one would be game enough to push the boundary. The example that you talked about is precisely the type of mentality which many of the commentators are trying to get governments to be a bit more objective about.
In Queensland, there was a situation - and it seems that clause45(1)(a)(vi) would also avail the government of this opportunity. You could stamp almost anything as a Cabinet document and the moment it is stamped, because it is ‘generally made and endorsed by an executive body’, suddenly, potentially, it could come within the scope of that particular exemption. That is precisely the criticism which, it seems, all the commentators are making of the legislation. It is one which you are blindly accepting because that is what is done in other states. Can you not see that this piece of legislation and the rationale that you quite distinctly put forward, is the fundamental problem to you really coming anywhere near what you promised Territory people in parliament in April 1999 - not you personally, of course, your party. Do you understand what I am saying? It is fundamental; you have just put forward precisely the type of rationale which commentators feel is a fundamental weakness in this legislation.
If a Cabinet discussion is between you and the health minister, what if the discussion that you had - you had to make a decision and it was important and a decision was made - but it turns out that a crucial piece of information was not passed on to the health minister? Clearly, that communication would be exempt under clause 45(1)(a)(vi), and is the type of decision which should be reviewed. If it would turn out that the decision had been made in error, if that crucial piece of information was not before you and the health minister, how could a person possibly review that? Making the assumption that there is nothing that is going to be of a security type nature - there is no prejudicial effect to an individual; there is no identifiable harm - it is just something that comes in the category of a communication between two ministers as a result of a briefing from a government department which failed to take into account a crucial piece of information, it would be covered by that exemption. That is precisely the problem.
Dr TOYNE: Look, let us stop comparing this bill before us with the Queensland bill. They have what is now quite an infamous arrangement regarding the use of Cabinet classification, a ‘trucking’ clause that allows them to literally truck out, classify and take out huge amounts of documents. This is nothing like that.
The situation that we were addressing with those two provisions is that you might say: ‘Okay, if a crucial bit of information has not flowed from one minister to another and, therefore, a bad decision was made, and applicants should be able to expose that’. Equally, if the documents that pass between ministers are potentially able to be released, I can tell you right now there will be a huge amount of thought put into what actually gets written down between one minister and another if that is the kind of climate we are going to work in. If you are going to make the argument that these exemptions are going to operate to reduce the possibility of proper ministerial liaison between one minister and another, it could well have exactly the opposite effect. It could be that we all work on the phones after that and do not worry about documents, because they could end up any where in the community.
In a lot of these matters there is not a great volume of this sort of traffic, but the content can be quite volatile, quite sensitive. Certainly, we would have great concerns if there was a point at which, because of the boundary line that has been defined between Cabinet, executive council and these sort of preliminary documents leading into Cabinet, it would create quite a high potential for dysfunction.
Mr BURKE: I pick up on a couple of comments. Firstly, in terms of the fact that these decisions are all reviewable, minister, I assume you accept the caveat, notwithstanding the fact that you state it will never be used. The caveat is that it is not reviewable if the decision is made by the Chief Minister. As these things are all done in hindsight where there is an inquiry well and truly after the event, all of this documentation or communication may or may not have led to a Cabinet decision.
Your subclause here talks about ‘would disclose communication between ministers about the making of decision or the formulation of a policy is of a kind generally made’, it is not necessarily made in that instance but of a kind generally made by Cabinet, is the first thing. The second thing is clause45(1)(a)(vii):
- was brought into existence to brief a minister in relation to a matter the subject of consultation ...
So we are not just talking about communication between two ministers leading directly to a Cabinet decision. We are talking about all of the sorts of documentation that can come forward on any issue to brief a minister that may eventually lead to winding up in Cabinet. Now, under these two subclauses, firstly they are exempt, and secondly, they are not necessarily reviewable - reviewable if the decision is made by the public service and reviewed by the Information Commissioner. Notwithstanding the fact that the power is rarely used but, if the decision is made by the Chief Minister, not reviewable at all, and not requiring any authorisation that the information existed at all.
I would have thought that say, in your capacity as Attorney-General, there would be many instances where the Attorney-General would provide advice - to a department, to a CEO either directly or indirectly by you, yourself, or by your department, and advice to a minister on issues that may or may not lead to a Cabinet decision - around the formulation of policy of which your particular position could be critical in some investigation about such an incident.
For example - and you might be able to give me an example of what could be available - if we look at the letting of 4800 m of property where there was great concern from developers about the process that the government went through in terms of its decision-making to eventually award a contract to one developer, where there is clearly, in some peoples minds, a process flaw. There may or may not have been advice from the Attorney-General himself during part of that process as to whether or not the process was proceeding properly or not. Now, I am being hypothetical; I accept that. What I would ask you for is to say to me: how would you see that sort of information being interrogated and eventually released, or would you see that as all being exempt in accordance with the subclauses you have in this clause?
It may be that, by virtue of pure politics, the Cabinet may make a decision to decide that a member who has been caused to incur court charges because of a particular instance, that particular MLA will have to pay those court expenses himself. In that instance, I would have thought that down the track a bit, if that individual wanted to seek information on that decision-making by Cabinet, felt him or herself clearly wronged, had information or felt that certainly in a case of law, the Attorney-General’s Department itself may have provided advice to Cabinet during that process to suggest that the decision-making one way or the other was right or wrong, in the Attorney-General’s opinion. In that hypothetical instance, would you see that as falling into the category of being totally exempt, or would you say that is a situation where this information could be made public or could be reviewable, as you state?
I know I am using two hypotheticals, and I am not wishing to dwell on a particular instance, but it seems to me, as the member for Nelson is alluding to, that this is a catch-all subclause. It does not refer to the fact that ministers could not communicate with each other at all, but it can refer to, in many instances I would think, the ultimate duties of an Attorney-General in advising ministers, including the Chief Minister, as to their duties to the public. I know and you know, that the responsibility of the Attorney-General is clearly stated as superseding politics where the Attorney-General has a clear duty to the public. Would you ever see that sort of information - the advice the Attorney-General provided in the course of that decision-making - being made public?
Dr TOYNE: The short answer is: yes, I would. We have stated that these decisions are boundary decisions: what sits inside the scope of Cabinet decision-making and, therefore, should come under the category exemption that applies to executive government, or which decisions could be considered to be between ministers but on a different route than subsequently going in to inform a Cabinet decision. Now, who can review that? The Information Commissioner can review that. If the Information Commissioner is of the opinion, having reviewed the basis of a decision on a particular document, that, in fact, it is not legitimately going into a Cabinet or executive council process, even though it might involve two or more ministers, then he or she would be at liberty to reverse the decision.
Mr BURKE: Well, to pick up on that, you keep mentioning the public interest test all the time. Would you like to walk me through the public interest test that the Information Commissioner would apply? In doing so, how would you see him referring and interpreting those two particular clauses?
Dr TOYNE: I am informed that the decision that would be reviewed is the decision to categorise that document as being a document that was created as part of executive government. It is not a question of whether it is taken to mean that. If that document was released in public - and this is the general exemption category that applies to executive government decision-making all around the country - it is taken to be an inherent harm that if information coming out of that process is released to the community, particularly if it is part of an ongoing issue that Cabinet or executive council are dealing with. The decision that would be made would be: is this on this side of the fence; does it belong as a designated executive government document or isn’t it? If it is not on that side of the fence, if it is taken to mean that the communication between the ministers did not subsequently lead to a process within the executive government, it would be available for release.
Mr MALEY: I ask the Attorney-General to walk me through the mechanics of clauses 43, 44 and 45. We are talking about those two subclauses, but if I could just say this: isn’t the test - the general exemption says that if government information is exempt under this part, a public sector organisation is not required to provide access to it.
Clause 44 says, quite clearly:
- Government information referred to in this Division is exempt because it is not in the public interest to
disclose that information.
Then in clause 45, the clause we are dealing with, it is a deeming provision. So, this public interest test is now really out the window. The real test is whether or not the information comes within one of the categories contained in clause 45(1)(a)(i) to (vii). So when you use, in a clumsy way: ‘Oh, which side of the fence, inherent harm’, and these type of words, which do not exist in clause 45 which is the deeming provision - so in other words, the Information Commissioner, who is, of course, a creature of statute, would have to look at it and go: ‘The information is exempt under clause 44 if the information …’, and go down to clause 45(1)(a)(vi), ‘would disclose a communication between ministers about the making of the decision … of a kind generally made or endorsed by an executive body’. Now, forget public interest. Assuming that the information comes within that category, and each of those elements is at least, in a general way, made out, isn’t it the case that the deeming provision deems that the information is exempt under clause 44, and the reference to the words ‘inherent harm’ which you just talked about, do not exist? Is that right, or have I made a mistake there?
Dr TOYNE: I daresay you have. Let us go down the spillway. The first thing is that all exemptions are based on some concept of harm, or harm to the public interest, if the information concerned is released.
Mr Maley: Where does it say that?
Dr TOYNE: That is the whole boundary that is built into these bills. In the case of the categories that we are talking about here, it is taken that you do not have to prove harm or detriment to public interest, document by document. There is a class exemption, which is basically saying that, once a document or piece of information has been identified as being attached to this area of government decision-making, there is a class exemption. You are saying that, for all that type of document, there is an exemption available. So the whole issue is to do with classifying a document as being either inside or outside that boundary.
Mr MALEY: This is what you were saying, in essence: if it is within that general class, then that is it, it cannot be reviewed, and it is deemed to have some sort of inherent harm. If that is the case, is that what you are saying? Even if you looked at each document, there was no prejudice, there was no inherent harm, it is just a deeming provision which deems that material – that is what your saying? So even if it turns out that no one could be hurt by this information being released, it would be real open and accountable government because it is what other jurisdictions do, you are saying. If it is called within that general class, which it generally, according to you, exposes the public interest to some sort of prejudice, that is the end of it, it is caught within that exemption. That is what your saying.
Dr TOYNE: Basically, what we are saying is that there is a decision made to, as you say, characterise it. The Information Commissioner can then review that decision and, if they decide that it is not justified to put it in that class according to the descriptors that are in clause 45, then they can take it back out again.
Mr MALEY: An Information Commissioner does not have regard to terms like ‘identifiable harm’ or ‘public interest’. All the Information Commissioner does is make sure that that information comes within the general scope of, for example, clause 45(1)(a)(vi). That being the case, then it is deemed to be exempted under clause 44. When you talk about reviewing the public interest, what you are saying is actually wrong. If you said that on radio tomorrow, that would be misleading. What you are saying is that all the Information Commissioner does is review whether or not that information satisfies the elements of clause 45(1)(a)(vi). That being the case, then it is deemed to come within the scope of clause 44, irrespective of the public interest.
Dr TOYNE: No, look, do not run away with the argument here.
Mr Maley: You might like to get some advice on that.
Dr TOYNE: The public interest is there and the potential harm to the public interest is still there in this category. It is just taken to be a class detriment to the public interest. Any document within that category will potentially harm the public interest. So, it is not that we have done away with the concept of public interest, we have just applied it to a class of information. Whereas, in the other exemptions, they are particular to the document and to the context, and then public interest has to be applied particularly. Okay?
Mr MALEY: Yes, I understand that. I appreciate that.
Mr WOOD: Could I take the Attorney-General up on that? I am wondering how we would ever know that it was against the public interest if we did not know what was in it. That is the bit that worries me in this whole section. How can people feel that they have been able to look at the process that led up to the Cabinet making decision? I am not saying they have to know what the Cabinet decision was. One of the difficulties I have is that people do not know what those processes were.
I know you said do not refer to other states, but I referred in my earlier speech to the state of Victoria, which has exemptions covering some Cabinet documents and delivery of processes. However, it also has other provisions that spell out the kinds of documents within an agency that are available, and that might have informed the decision-making process. It goes on to say the Victorian act requires agencies - requires them - to publish submissions prepared within the agency for presentation to Cabinet. It also requires agencies to publish documents and reports that have been prepared within the agency and for the agency that contain recommendations, policy advice, study results, assessment of policy, programs or projects, assessment of the feasibility of programs and projects, report on agency restructures, and instructions to Parliamentary Counsel.
You do not see that in our legislation. The reason I think that is important is because, to make sure that whoever gives out advice is giving good advice, and the only way you know whether that advice is any good, is whether it is open for public scrutiny. Whilst that may not be that great in this particular clause 45(1)(a)(vi), it certainly will be picked up in clause 45(1)(a)(vii) where the public loses that opportunity to look at the processes, because they are not open for public scrutiny.
Dr TOYNE: Member for Nelson, if we can get what it would look like in reality - applications for government information will have something in mind. I do not think the Information Commissioner is going to get an application saying: ‘I want everything’. There will be some particular issue that an applicant is anxious to be enlightened about through the internal process of government. They may have some information already about the processes that were going on in some government agency or on the part of one or more of the ministers, and they will go looking for the sort of information that would be attached to that decision process.
So, it is not a case of someone sitting in the lounge room thinking: ‘I wonder what sort of information is in the archives of the Cabinet office, or different agencies and sections of agencies?’ It would be much more directed to a process where they say: ‘Look, I want to know what happened with this decision by government, or what led up to the decision, or why a decision was not made’. It would be up to the agency liaison people, the point of first contact for that application in that area of government, to then spruik out where information regarding that matter would be deposited.
In the case to hand, if there had been a process attempting to find out about this particular matter that has been applied about, and it had reached this boundary where there were agency documents and people writing to each other at the agency level, and then it was clear that it had disappeared into a matter that was taken up between the ministers, then that boundary would have to be tested if the documents that occurred as part of that exchange had been categorised as exempt under that category. Then the Information Commissioner could potentially be asked to review as part of the complaints process. At that stage, the Information Commissioner would say: ‘Give us a look at these’, and check to see that they are exempt because of the correct application of those criteria.
I am trying to give you a practical picture of what is going to be happening with a lot of this stuff. You would probably know as well as I do - we are all in this caper - that if you seek information, you generally have a half idea of what has happened or what you suspect has happened. Really, what we are talking about here is just a boundary line that someone pursuing information around an issue may come up against. If they come up against it they will have the capacity, through the complaints process with the Information Commissioner, to test whether that classification was properly put on that document.
Amendment negatived.
Mr WOOD: Mr Deputy Chairman, I would not mind moving an amendment to lift the temperature in this House.
I move amendment 25.2. I do not want to repeat some of the arguments that we have had before, but one of the queries I have with clause 45(1)(a)(vii), is what was wrong with subclauses (i) and (ii)? Even though again I would refer back to the Victorian legislation where documents prepared for Cabinet can be published, surely we at least limit that in (i) and (ii) to documents that we know have either been prepared or will be prepared for the executive body. What we do in clause 45(1)(a)(vii) is basically pick up things further back along the stream that may, generally, be prepared, or may be endorsed by an executive body. We have gone one step further back up the line, and to me, that again limits. It goes against what we have been talking about. It makes it harder for people to get that information.
One of the important things - and you are probably asking for practical examples - if I was a member of the public and the government decided - well, I will give you an old debate. There is a debate about whether the mangroves should be 80% retained and 20% cut back. The government might have documents there - might have been given a submission from somewhere, from a department - which originally might not have even been for the department. It might have been just stuck in a scientific journal somewhere. But then they prepared a document to state the case of why 80% should be kept and 20% should be chopped down. The government then makes a decision in Cabinet agreeing with that information, and that is it. There needs to be an opportunity for the public to say: ‘Okay, government, you have made a decision but can we have a look at the documentation upon which you made that decision so that can be ratified or challenged?’, because that is the part of the process that is important to look at. Governments make policy based on information given by departments. If that cannot be challenged by the public, then you really do no have the public taking part in the decision-making process, which is very important. All you have done with clause45(1)(a)(vii) is taken that decision-making process further away from the public. You have it already in subclauses (i) and (ii). Why have it in subclause (vii)?
Dr TOYNE: First of all, there a number of ways of challenging government decisions. We know a number of them in this House itself. As in the category, clause 45(1)(a)(vi) that we have just debated, this is also in that same kind of boundary line, and I would expect that the same provisions apply to it. If an applicant is unhappy that it has been taken into that class exemption and suspects that there may be some misapplication of the criteria that give it that classification, they go to the Information Commissioner with a complaint and say: ‘Can you review this?’.
Beyond that - and I would make this point here seeing Queensland has been mentioned, quite wrongly in the relationship to the bill we have here - I do not think there would be anywhere in Australia where people do not know about the misuse of Cabinet classifications in the Queensland act. It is quite clearly being abused, or has been in the past, and that becomes a political and community issue because, ultimately, there is a level at which we are answerable back here for not just to the individual decisions, but the general approach to the operation of this act.
If we are not honouring the intent of the act; if we are misusing categories to the extent where we can influence the process - because we are not putting these exemptions on, it is not us as ministers - then we are answerable back here and also to the community out there. So you have three levels: the Information Commissioner, the complaints process and the courts behind that if you needed it, and then these political and community levels.
Mr WOOD: But, you as government, of course, are putting these exemptions in first. You are creating this legislation which has these in place now. All I am saying is, if you look at subclause (i) it is fairly specific: it was bought into existence for submission to and consideration by an executive body whether it had been submitted or not. At least you knew that that piece of information was being brought in specifically. The same with the next one. But this one, as I said before, is like the catch-all, and I find it hard to believe that it really needs to be there. It could be used for political purposes. You could say: ‘Well we can conveniently make an excuse that we do not want this bit of information to go out, it is a bit embarrassing, we really think it was generally made for an executive body’. That is it. You just have to go on the belief that it is.
I know, as you say, it could be reviewed and all that, but I still think that all that system adds to bureaucracy, and does not need to exist. The object of this act is to try to make government more open and transparent. I get the feeling that by subclauses (v) and (vii) we have actually gone in the reverse. All I am saying is that by trying to omit these is actually trying to make this legislation better, not worse. These additions to the act were actually counterproductive. I have supported what the government is trying to do in bringing in FOI, but I really think these are going down the wrong path. I know you said before that we can tighten things up and make them more focussed, but there is a danger there. I think the member for Macdonnell said: ‘Yes, we can also add things which then make more exemptions’. We should be working in the reverse.
As I said before in my speech, we have to ask ourselves what harm will it do for some of this information to be open. I remember having - and perhaps if I go back to my days on the Litchfield Shire Council - two forms of meetings. You have your general meeting where the public come along, and you have your committee meetings. We stridently hung onto the process that committee meetings, which are a bit similar to Cabinet, should remain open. We very rarely ever used the in-camera type meeting. We said: ‘If the press turns up, well. what we say in those meetings should be proper. We should not be ashamed of anything we are saying at that meeting. We should not be saying anything nasty about people. We should not be saying silly things. We should be conducting ourselves at that meeting so that, if the public turns up, they can hear exactly what we say’.
Mr Burke: Have the press go to Cabinet, what’s wrong with you? Show a bit of openness.
Mr WOOD: To some extent, openness, yes.
It might not have worked all the time, but the goal was to keep the Litchfield Shire Council, in this case, meetings as open as possible so that the public could, generally speaking 98% of the time, would attend those meetings and hear everything we had to say. That is an important thing with freedom of information: we aim for the highest. I sometimes think we have not quite set the hurdle high enough in this case.
Dr TOYNE: We will take on boarders and deal with it all together.
Mr ELFERINK: Mr Deputy Chairman, I think what the member for Nelson is trying to say is that we have the map for a racing car here, and then the minister is putting a Victa mower motor in it to make it run. That is part of the problem.
Perhaps I can assist the minister in relation to the answer he is trying to give. I direct him to a case called Sankey and Williams. I can give you a reference if you like, minister: 1978 142 CLR 1. That particular case decided that there was no such thing as a class of exemption at common law. However, in subsequent legislative reform, the Administrative Appeals Tribunal, as well as the federal Freedom of Information Act, did create a class of exemption. Now that has nothing to do with the public interest test. We will be debating that shortly. In this case, we are talking about a class of exemption. So, there is good legislative structure for the class of exemption. I believe that is what you are trying to say, minister.
As I understand the member for Nelson, his problem is that there are too many classes. As I understand Sankey - and I could be wrong about this - one of the problems that the presiding justices had in that particular matter was that, if you build a class, then a government can avail itself of the ability to create as many classes as it likes, therefore, through a back door, exempting as much as they please.
I am quite sympathetic to the member for Nelson’s position, inasmuch as that you are now creating more and more classes. Clause 52 is going to end up almost irrelevant by the time you have these classes being stacked up in the system. That is really the problem here, minister, that we are building classes. The more you pad up this act, the more exemptions you are going to create. It has nothing to do with public interest tests at this level, the public interest tests comes later on.
Dr TOYNE: I would reiterate that this is about putting a boundary line around one of the two class exemptions, which is the executive decisions of government. I would say to the member for Nelson that, while we may be putting a Victa mower with a few documents stacked on top of it in place, we have taken a super tanker full of deliberative documents out of the exemption categories. In fact, one of the most significant changes to the bill was to re-launch deliberative documents into the particular exemptions so that they are fully accessible by the Information Commissioner to review by applicants through the agency processes.
We have delivered a huge step forward from the original draft bill, in the amount of material that will be available through agencies. We have had, earlier in this debate, that we are trying to balance these two principles: one that you do not want to visit harm on the public interest because of the inappropriate release of information but, balancing against that, you want to maximise the access of the general public to this sort of information.
I can see a lot of issues that we would be working on between ministers and through Cabinet and executive council, particularly Cabinet. As it says in the bill:
- … the formulation of policy if the decision or policy is of a kind generally made or endorsed by
an executive body …
Well. that is the Cabinet or I guess, individual ministers developing that and taking it to Cabinet.
I would be very concerned – well, let us take some examples, because the more real we can make this, the better we can judge what we are trying to do. Land tenure, such as handling of native title, involves me as an Attorney-General, the Minister for Community Development, the Minister for Infrastructure, Planning and Environment – he is going to hit me soon. So, if we are going to make a major change, or put a major policy setting into place as a government, we would not want that deliberative process to be well known to the land councils, the developers or the miners, at the time that we are trying to look at options, because the moment any information gets out into the public domain regarding those type of issues - it is a highly emotive thing, there is a lot of vested interest in there. We could not make a decision in a rational and considered way if we are being bounced around by one or more of those bodies whilst we are trying to work out where we are going with that policy.
That is an example in the policy area, where those sort of documents can be very sensitive in their own right, even though they are not strictly within a Cabinet submission. I hope I am well enough known in this House now to say that, if problems arise, we will have a look at them. If this does not work out in the pattern that we are expecting, we will be as concerned as you will be. We do not want to see a huge black hole appear where there is information out of access for people of the Northern Territory. Certainly, if it means anything, I will give you my word that I will be trying to prevent exactly that.
Mr MALEY: Attorney-General, you talk about a number of the divisions being lifted or relying upon examples in other jurisdictions. Was clause 45(1)(a)(vii) lifted from another jurisdiction, or is it a new clause, a new category, a new class, on instructions from you to your Parliamentary Counsel? It is brand new, is that what you are saying?
Dr TOYNE: Yes. It came into the bill as part of the general instruction that Cabinet gave the department, to basically model the FOI part of the bill as closely as possible to Western Australia. Then it came back to us after that, so this is one of the elements that was imported in from the Western Australian act. Our information, as I have said several times now, is that the Western Australian act is working very well and with the approval of the Western Australian people; so we thought that is a good place to start.
Amendment negatived.
Clause 45 agreed to.
Clauses 46 to 51, by leave, taken together and agreed to.
Clause 52:
Mr WOOD: Mr Deputy Chairman, I move amendment 25.3. Again, there has been some discussion. Some people have said that this whole clause 52(5) probably should have been deleted because it is so broad. Again, it covers so many things that you would wonder if people really had an intent and did not want something seen by the public they could pick one of those - (a), (b), (c), (d), (e), (f), (g) - and probably hit the nail on the head. If we take (e), certainly that is an example of very broad exemption class.
If you just take the two words in there, ‘risk’ and ‘mischievous’, well what is the risk? What does it mean? The risk could be anything from nought to 100. There is probably a risk every time one discloses information that someone is going to use it for a purpose that could be mischievous. But I suppose that is what politics is about. It is about what the media is about at times. It depends on what your interpretation of ‘mischievous’ is. That is just one of the risks you take in having freedom of information. People might use it for purposes other than it was intended but, then, I suppose we have to be clever enough to argue the case that the information that is going out is not correct and we state our reasons why. I would rather that you took that risk and did not have it in there. Once again, it makes for more open and accountable legislation, and probably using similar arguments to what I used before.
Mr DEPUTY CHAIRMAN: Let the minister confer with his advisor.
Dr TOYNE: Thank you, Mr Deputy Chairman. My advice is that that particular phrase was imported into the bill as a result of its use in New Zealand as part of their FOI regime. That has already been substantially tested in their court so it does have a legal standing due to the precedent of those earlier decisions. On the general point you are making about the identifiers, these are identifiers that will be taken into account when a decision has been made as to whether to put a particular exemption onto a document in this second category. These are not class exemptions; they are general or particular exemptions.
The public servant who first handles the application has these identifiers available to them to guide their decision as to whether public interest has been contravened by the release of a document but, equally, so does their superior within the agency. So does the Information Commissioner and so does the court, if it comes down to a testing of the initial decision.
Mr WOOD: The court could not, unless it was on a basis of law, argue the case of what ‘risk’ or what ‘mischievous’ was, could it? Under the act that says you can only discuss matters applying to the law, would that be able to interpret what ‘risk’ and ‘mischievous’ is?
Dr TOYNE: Yes, absolutely. A court could take the matter up as to whether those criteria have been correctly applied during the process that the act is requiring. It could also take up issues of natural justice, if there has been some decision made that clearly has not given a fair go to the applicant. They could certainly test whether the due process had been applied, including these identifiers that should be informing the decision as to whether a document or information is exempt or not.
Mr ELFERINK: Mr Deputy Chairman, this is coming down, of course, to the public interest stuff. I have to confess that I have not read New Zealand cases in relation to this. I did not go beyond Howard v The Treasurer of the Commonwealth of Australia, I am afraid. What I find curious is that this section does not operate in a vacuum. The legislation that surrounds the legislation in New Zealand, I am almost certain, is capable of being reviewed judicially. The legislation that exists in Western Australia is capable of being reviewed judicially. I believe, also, that the Administrative Appeals Tribunal can actually function as a body of review in relation to the decisions taken in relation to freedom of information legislation in both Western Australia and, I am sure that there is an equivalent, in New Zealand. This legislation does not have that review process attached to it. This legislation stands as a pillar on its own without a review process attached to it other than the commissioner, noted in there - and I have my own comments about the power of the commissioner.
I refer to the case of Howard v the Treasurer of the Commonwealth of Australia because, not only are the subclauses in clause 52(5) almost parroted out of that decision - the decision being on pages 634-5, that is those public interest issues - they are almost parroted in this legislation. That is not necessarily a bad thing. Justice Davies, I am certain, is a wise fellow. What concerns me is that, out of the five options that arise out of Howard, seven appear in clause 52(5) of this legislation.
I have no problem with the new addition in clause 52(5)(d), but the additional clause 52(5)(e) which is currently under debate, seems to have dropped out of a vacuum. I am told it has dropped out of New Zealand, but in New Zealand they have a review process. The Attorney-General says to us: ‘There is good case law out of New Zealand saying what “mischievous” is’. There is no right of appeal in this instance. Only on a question of law can something be taken to the Supreme Court of the Northern Territory under this legislation. What will the Supreme Court do? They will say: ‘This is our decision’, and flick it straight back at the Information Commissioner for him to make a decision accordingly.
The problem with this subclause is that it is not subject to judicial review. In fact, that is part of the problem with this whole act. So words like ‘risk’ and ‘mischievous’ are not really there for the courts to interpret; they are there for the public servant who is making the decision to interpret. That is the problem that I have with this subclause.
Dr TOYNE: Mr Deputy Chairman, I have been informed that clause 52(5) actually draws from a number of judgments from administrative cases. It is not just the Howard v Treasurer that you are referring to. Further to that, I have said repeatedly that, in this area of exemptions, the only exemptions that cannot be appealed or reviewed are the exemption certificates, one very small category. This category can be reviewed by the Information Commissioner.
Mr Elferink: No, that is not correct.
Mr Ah Kit: Just because you are an ex-policeman doesn’t mean to say you know all about the law, you mug.
Mr Elferink: Why don’t you pull your head in? Why don’t you actually listen to what this argument is about?
Mr DEPUTY CHAIRMAN: Order! There is talk across the Chamber. The minister has the floor, and I would ask members to refrain.
Dr TOYNE: To take up your point about what constitutes a question of law as regards the provisions within this bill, the interpretation of ‘mischievous intent’ would be a question of law. It would be quite proper for the Supreme Court to test that through a court hearing, as to whether that had been correctly interpreted and applied by a public servant on application from the Information Commissioner as part of the review process.
Mr ELFERINK: Mr Deputy Chairman, I am a little confused now that we are talking about this particular subclause, that it is quite proper to apply to a court. Could the minister tell me what this means: ‘despite any other act, and except as provided by this act, no person or body is entitled to investigate, inquire to, review, otherwise call into question an act or decision of a public sector organisation or the commissioner under this act’? What does that mean? If it means a judicial review is available here, then why is that clause in the legislation?
Dr TOYNE: Why didn’t you get a briefing? We do not accept what you are saying about the lack of a reference point to the Supreme Court. It is quite clearly spelt out in the bill. It is one of the procedures open to the Information Commissioner.
Mr ELFERINK: I would like the Attorney-General to direct me to exactly where the judicial review process exists in this act.
Dr TOYNE: It might help if you read it. Do you want to proceed, Mr Deputy Chairman, while we are getting this information?
Mr ELFERINK: A point of order, Mr Deputy Chairman. I do not want to proceed. I would like for the Attorney-General to direct me to it right now.
Mr DEPUTY CHAIRMAN: All right, member for Macdonnell, we will allow the minister to take advice on this matter.
Dr TOYNE: Thank you, Mr Deputy Chairman. I hope you have read this bill. Clause 130, Appeal to Supreme Court:
(1) A person aggrieved by a decision of the commissioner under this act may appeal to the
Supreme Court on a question of law only.
We have explained to you that a question of law can actually go to the criteria that have been used to make these decisions within the bill:
(a) confirm or vary the decision in whole or in part;
would have been available to the commissioner;
(c) remit the matter to the commissioner for further consideration; or
(d) dismiss the appeal …
Mr ELFERINK: Then I am certain the good minister would have no problem supporting me, if he believes in the judicial review process so strongly, in one of the omissions or amendments I have already flagged - he should have received the bit of paper now - to delete at a later stage when we come up to this debate, from clause 130(1), the words ‘on a question of law only’. But anyway, we can get back to that debate later on.
Mr MALEY: I find it offensive that you have enshrined in legislation a provision which allows, it seems, a public sector organisation, in the course of considering whether or not something is in that first category that is exempt under clause 50, to make an assessment as to whether or not the disclosure of some information will result in a mischievous interpretation. That is offensive. That means, and demonstrates, you do not trust Northern Territory people.
It really goes a long way in demonstrating the huge divide between the trendy socialist attitude you have, as compared to the free-minded liberal CLP approach. Can you confirm, and explain why you are not deeply offended by such an outrageous categorisation? Fancy asking a public servant - some bureaucrat - to decide whether he thinks there is a risk that this may create a mischievous interpretation. That is outrageous in demonstrating you do not trust Territorians. Is that the case?
Dr TOYNE: Ah diddums! Really, heavens above, crocodile tears over there. This is a known principle within the New Zealand system. Public servants can make whatever decision they like, on whatever of these criteria appear to match the case, the document or the information that they are being asked to judge on. Whether that is acceptable or not to the applicant would have to be tested. If it is not acceptable to the applicant, it can be tested; it can be reviewed by the steps that I have outlined time and time again. I do not see the way you are seeing this. This seems to work with the Kiwis, and like everyone knows, they are not that …
Mr Maley: Look what it has done to New Zealand.
Mr WOOD: Oh, that has started it. Could I ask a very straight question: why have it there at all?
Dr TOYNE: Well, I can say that one of the advantages of bringing in this Information Bill 20 years after the first legislation came into Australia, and many years after many of these other jurisdictions brought it in, is that we can learn from their experiences. If that has been included and regularly used in the New Zealand regime, presumably it is there for a good purpose; that they are getting mischievous, or vexatious actions by some of the applicants. I cannot give you the detail of that, but that is why it would be there, and being used.
Amendment negatived.
Mr WOOD: Mr Deputy Chairman, I move amendment 25.4. I suppose on a similar vein, in clause 52(5)(f), the key words to me are someone trying to interpret what is going to lead to confusion and what is unnecessary debate. I again think we are dealing with very subjective words there. You have to ask: ‘Well, so what?’ If there is a bit of confusion caused, and a bit of unnecessary debate, so what? There is a lot of that; it happens in here, and we do not stop that happening. It is a little like having an overkill.
If the government is worried about confusion and unnecessary debate, well, they should be clever enough to overcome it by necessary debate and good arguments. I do not think one should worry too much about whether you should have confusion and unnecessary debate, to put it in a bill like this. Again I say, by taking it out you make a better bill; by leaving it in, you make a bill that is just adding exemptions to what should be a much more open bill.
Dr TOYNE: Look, it is the same general answer as before, member for Nelson: we are going with early court testing of these criteria. I can only say that there clearly would be examples of release of information that has led to confusion and unnecessary debate. I can think of examples where there is, say, an incomplete picture. Take your example of the Elizabeth River bridge proposal. If you got half of that document and not the other half, it might well touch off some ill-informed or confused debate with the stakeholders.
Clearly, it has been identified by earlier court testing as being a valid criteria. If the public servant making the decision does not feel that that applies to the area they are being asked to consider for exemption or release, they do not use it. It just says ‘may’ consider the following matters.
Mr WOOD: But isn’t it like saying discretion is the better part of valour, that type of argument? Wouldn’t it be better to go on the path of less exemptions, more openness, and take that risk? What it seems to me is that we cannot afford that risk because it could cause some problems, therefore we will make sure that we do not have those problems and will put in this clause. In other words, we are working on the safe side, you might say, whereas I think we really should be working on the risky side and see how it goes with less exemptions - the ‘suck it and see’ process. Don’t always be too much worried what one particular jurisdiction has. Maybe we need to be a bit innovative and say: ‘Well, look, let us not have that there and let us see how it goes’. It might cause some embarrassment but if it strengthens the principle of openness, then let it be.
Dr TOYNE: Five years from now when this bill, or the act as it will be then, is being thoroughly reviewed and, if necessary, overhauled in areas, if that provision has not been used except in rare occasions or never, we will hoick it. If it has been used regularly then, clearly, we have saved the Territory people a lot of confusion and ill-informed debate. So either way, there is no harm if it is not used, in that it will just simply lapse into history. If it is used we are preventing harm.
Mr MALEY: Mr Deputy Chairman, my question is really along the same lines as the subclause above. The message this sends out to the people of the Northern Territory is that some bureaucrat in a public sector organisation may have regard to that subjective criteria. He is of the view that the information will lead to some sort of confusion and unnecessary debate. That is outrageous, and the example you used was simply appalling. We have the Elizabeth River debate and there are only half the documents there. For some reason the other half are on your desk and, therefore, you say that is an example that would lead to confusion and unnecessary debate. That flies in the face of parliamentary democracy. Can you state on the record why you are not opposed to that ‘big brother’ mentality?
Dr TOYNE: I can only reiterate that these criteria have come out of previous court hearings and findings. I personally see it very much as an aspect of good government if we can prevent confusion and unnecessary debate based on less than the full facts of the matter. We get enough of that in here without forcing it on the Territory population as well. I do not see your outrage. I am quite comfortable with the origins of these criteria. They have come out of the careful testing in the courts, and we are prepared to proceed with them and, like everything else in the bill, we will review it further down the track and see how it is all working.
Mr MALEY: Well, can I just put this practical example to you. If an application was made to get hold of all the Year 12 results of all the public and private schools so some comparison could be made, and this person could then decide which school they are going to send their child to, it is quite possible then that some person in the Education Department could form the view that: ‘We are not going to give you that information because it could lead to confusion and unnecessary debate’. In other words, you can stretch that exemption to really cover anything. That is what we are saying.
Dr TOYNE: I am advised that the example you are giving is not a deliberative process and, therefore, does not come under these provisions.
Mr MALEY: Okay. I will qualify that example. You are right. I apologise for that. So you are saying a decision relating to the allocation of teachers to schools - and that decision is made, of course, by the Education Department - and we are pretty sure that it has something to do with the results in Year 12 or it might be because of the race of some particular people they have decided to increase. You are saying that that information, because it is of a deliberative nature, could come in the scope of section 52(5)(f) and create, technically, unnecessary debate? It could be stretched to cover that sort of application?
Dr TOYNE: You could take as an example that there might be an options paper circulating that is considering, amongst other options, closing down one of the schools in Palmerston or in Alice Springs - a deliberative document. If that is released as such straight out into the general public, I can tell you what would happen in Alice Springs. That is probably a good example of what we are talking.
Amendment negatived.
Mr WOOD: Mr Deputy Chairman, I move amendment 25.5. Clause 52(5)(g) should probably be referred to as the ‘red faces’ clause because that appears to be what it is all about. It appears to be trying to cover up the possibility that someone made a bit of a stuff-up in some of the information that was given which could have made the decision-maker look a bit silly when, if they had the right information in the first place, they probably would not have said what they did. The easiest way to fix that up is to just get rid of the whole of clause 52(5)(g) and make sure all the relevant information is disclosed in the first place. I do not think it has anything to do with openness and transparency; it is more or less covering up the possibility that someone did not give all the information in the first place which is an error, not something that should be the reason for not giving the information in the first place.
Dr TOYNE: The intent of that particular provision, clause 52(5)(g), is to protect the integrity of the decision-making process itself by confirming that officials should be judged by what they decide, and not for matters that they considered before making up their minds.
As to the third basis for the privilege in the case that this came out of, Judge Wald in Coastal States Gas Corporation v Department of Energy 617 F.2d 854 (1980), at page 866,expressed it in terms of protection against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not, in fact, the ultimate reasons for the agency’s action.
What both the court decision and our inclusion of that in this document is that, if you are going to put out decisions made by a public servant or an agency, it is only fair to the agency as a principle - and these are principles that can be applied - that there is clearly stated the reasons. Now, they might have made a bad decision, they might deserve a bullocking for what they have done, but it has to be based on an accurate picture of how they came to that decision. We are not saying: ‘Oh, gee, we might get a bit of angst from this, don’t let it out there’. It is basically saying, if you are going to be judged for what you have done, it has to be judged on the actual facts that led you to the action and decision that you took.
Mr MALEY: I hear what you are saying, not that I have read that decision, I am not familiar with that. But is not the response to make sure that the material upon which the decision had been made is out there and, if there some documents which are misleading, then it is really up to the government, to the public sector organisation producing it, to make sure that the public is properly informed. That is part of the debate. Would you agree that this particular provision really goes down the path of protecting the bureaucrat, as opposed to being of any benefit to a potential applicant? It is really up to the public sector organisation, the government of the day, to ensure, if the rationale and documents relating to a deliberative process or a decision of sorts, that the right documents are there; that the full picture is given to the public because, ultimately, these people have to make an informed decision. Would that not be the appropriate response, as opposed to some fairly lame and cagey subclause exemption?
Dr TOYNE: When you read the wording of it: ‘… the disclosure of information that does not fairly disclose …’. It is not saying you cannot disclose information leading to the decision that was made. It is just that you should not, as a matter of principle, release information that unfairly depicts how that decision was arrived at. So I do not think what you are saying is a valid concern there on that wording.
Amendment negatived.
Clause 52 agreed to.
Clauses 53 to 62, by leave, taken together:
Mr BURKE: Minister, with regards to clauses 60 and 61, clause 60(2) says:
- An exemption certificate is conclusive evidence that it is not in the public interest to disclose
government information identified in the certificate …
I assume that refers only to the exemption certificate issued by the Chief Minister which, I understand would be in a separate form to any other decisions that are made, that would be made in terms of an exemption certificate by the Information Commissioner.
Dr TOYNE: Under the three categories, yes. The only place where an exemption certificate can be made is the three categories that are open to placing of a certificate, which are: the executive area of government, security, and the third one is private and cultural information. They are the only three areas where an exemption certificate can potentially be placed over some document or information. It is not reviewable by the Information Commissioner. So, that is all there is.
Mr BURKE: I am pleased you made that clarification. I am happy to stand corrected, but, as I understand it, there is clause 44, which talks about this thing called:
- Exemption.
Government information referred to in this Division is exempt because it is not in the public interest
to disclose that information.
It then goes through a whole series of additional clauses and subclauses of all of those areas that are under clause 44. In referring to items under clause 44, it actually refers to that clause in reference back to it. For example, if you look at clause 49 under the bill, or clause 47, it says information is exempt under clause 44. And in clause 49, information is exempt under clause 44.
Are you saying, categorically, that in the case of the Chief Minister, an exemption certificate can only be issued under clauses 45(1)(a), 45(2) or (3), 46(1) or 56 only? Or can the Chief Minister, in deliberating under all of those areas of exemptions under clause 44 - which seems to me, logically, would be the case – that, where there was concern under any of the clauses from 45 onwards, where the public sector organisation themselves felt that there were sensitivities that they did not wish to release information, did not feel it was information or reasons they needed to provide to the Information Commissioner, would refer directly to the Chief Minister, who would then give an exemption certificate under any of those provisos? Is that the case?
Dr TOYNE: You are quite right that the issuing of exemption certificates is limited to those clauses, or the provisions that you were referring to. I will confirm for Hansard, clause 61:
- The Chief Minister may issue an exemption certificate certifying in writing that the government information
identified in the certificate is exempt because it is –
Which is your first area, the executive government areas:
- … other than information to which section 45(2) or (3) applies; and
Mr BURKE: I accept the tone of what you are saying. Perhaps there is a drafting or interpretive problem here, because, if you follow the logic of your act, the Chief Minister makes the decision by way of an exemption certificate, and has no requirement to give reasons for that decision or refer to the areas in which she may have decided to make that decision. There is no appeal against the decision by the Chief Minister and, in fact, if you look at clause 61(2):
- The Chief Minister is not required to confirm or deny in the exemption certificate that the information
identified in the certificate exists.
So, how can you possibly guarantee, except on trust that, in issuing an exemption certificate, the Chief Minister is only referring to information that could be contained under those three categories? It seems to me, except as stated in the legislation, there is no other mechanism to guard against an errant Chief Minister, Premier, or whatever - and there has been several of them in the past - who could use that exemption certificate to roam broadly into any area of clause 44. Because they are not required to provide any reason, any justification, or any area of reference, they could exempt anything they decided.
Dr TOYNE: I guess the major protection for overuse of that category, or that exemption certificate power, is that the Information Commissioner has to be informed of each exemption certificate that is placed on information - not what is in the information, but the actual action of placing an exemption certificate over information. That has to appear before parliament, with the annual report of the Information Commissioner. So, to that extent, parliament would then be able to scrutinise. If you had, as you were saying, an errant Chief Minister who decided that they rather liked putting exemption certificates on things, that would show up very quickly in the returns back to parliament in the annual report. It becomes a political problem then for the government of the day and the Chief Minister concerned, which they may or may not care about. It depends on how you read the mood of the electorate on these things.
Mr BURKE: I accept all that, but the reality is, one decision could be the methodology used to protect a government, or an individual minister - just one exemption certificate. So, it is not as if you need a raft of them before corruption occurs. We are talking about what is the check, and there is none. That is what I am trying to get you to explain to me: that there is no check, in fact, on the Chief Minister in the issuing of that exemption certificate - anything except the trust of the Chief Minister in her authority and integrity.
Dr TOYNE: You have to learn to trust yourself, member for Brennan, at the time you were there.
The act does confine the exemption certificate powers to the categories, as I read out just a moment ago. Any exemptions put on other types of information is ultra vires - it is beyond the power given to the Chief Minister by the act. If it is in that category; if there is reason to believe that information has been tucked away under an exemption certificate outside the prescribed scopes of types if information, then it can be tested right through to the courts.
Mr BURKE: With respect, minister, explain to me how you could test that in a court. Explain to me how you could, through this act, test corrupt activity through the issuing of an exemption certificate.
Dr TOYNE: I am advised that testing of an individual’s powers under which they are authorised to carry out some function is a known process within the courts. Essentially, the hearing is to determine whether - and it could be brought on by the Information Commissioner or by the applicant. But if either have reason to believe that the Chief Minister has placed exemption certificates over areas of information to which they are not empowered to exempt under the act, they can be tested in court with an ultra vires hearing.
Mr MALEY: Attorney-General, I understand the three categories upon which these certificates can apply. But isn’t it the case that you have put the integrity of this legislation in the position that a politician is making that determination under clause 61? In terms of creating and maintaining public confidence in the FOI system, would it not be the case that the last person you would want would be someone who is likely to be affected by the material being disclosed? Don’t you agree that having the Chief Minister or any other minister making that decision, certainly from an objective perspective, could erode the public confidence in the legitimacy of the issuing of an exemption certificate?
Dr TOYNE: I do not accept that and, in fact, on a lot of these issues it really is your opinion, my opinion. The real opinion that matters will be how the operation of the act is accepted over time by people as they start to use the provisions. But I can certainly say that, from the initial draft bill - the exposure bill that went around during the public consultations - we have drawn that area back enormously to a single person and a single process. Whatever concerns you might continue to harbour about that, I believe that no person is more answerable to the Northern Territory people than the Chief Minister. It would very quickly become a political issue if there was abuse of that power. Equally, it could become very quickly a legal issue if an applicant decides that that exemption certificate has been put over a category of information to which the Chief Minister is not empowered.
Mr MALEY: I hear what you say about if there were some sort of mala fides, but the practical prospects of reviewing a decision by the Chief Minister, which may be a decision concerning information which is potentially damaging to the government of the day, is effectively nil.
I did not say this in the debate but, if you had someone like the Information Commissioner as the person vested with the responsibility of issuing exemption certificates - and, hopefully, your government has enough brains to appoint someone with some legal qualification as the Information Commissioner if it is not going to be the Ombudsman - you would think that would instil that sort of public confidence, and you would avoid the real risk of the Chief Minister, just a politician, making a decision to exempt material which could affect the government of the day. I accept that, whilst there are some administrative type avenues available, at a practical level it would almost be impossible to review that decision.
Do you not accept that general proposition that the Chief Minister is the wrong person - it is nothing personal, just the wrong person - and perhaps the insertion of the Information Commissioner in this role would help firm up public confidence?
Mr Henderson: You guys would not release anything!
Dr TOYNE: Look, governments come and governments go and they all have different characters. If you are looking at a person of statutory position having virtually right of total access across the most sensitive of security issues - issues that we might have with federal security agencies, things that might touch on Aboriginal cultures and secrecy areas of Aboriginal culture - there are areas that occasionally crop up where you really do have very sensitive material in front of the executive group, or where you are working through security and law enforcement issues, and cultural and privacy issues.
I can only point to Western Australia. It has not happened yet in three years, and we would be similar to the earlier discussions we had on the member for Nelson’s amendments, that we have a genuine commitment to making this work as an open system. If we are finding that there is a dysfunctional area appearing, we will refer it back into a review process and change it.
Mr MALEY: In terms of that comment about referring it back to a review process and changing it, Attorney-General, you would agree that, having regard to the small size of our jurisdiction and what statistics I could glean from access to information under the federal FOI legislation, it will be very difficult to really draw any conclusions about the effectiveness of, for example, clause 61, having regard to the small jurisdiction. Would it not be better to have a fairly open and frank discussion about it and try to put in the best structure possible and the best laws for the people of the Northern Territory? I hear what you say about the hypothetical about some defence type aspect or a traditional customary indigenous secrecy type matter, but I assume the Information Commissioner will be a person suitably qualified who is answerable to parliament, not just the government, and whom Territory people can trust.
Dr TOYNE: It has been pointed out here that there is a potential conflict between the role of an Information Commissioner monitoring decisions that are being made and reviewing decisions, and making decisions in their own part; because who reviews them? The other point I would make with it is that you say this is a small jurisdiction. If you wanted to find the most vulnerable person to political and popular opinion, it would be the Chief Minister, because there is no place to hide in the Northern Territory from a perception that you are mistreating the public interest. That was our thinking on it.
I can say that the Information Commissioner, when they begin work - and that will not be far away - will be fully engaged in the implementation activities with the agencies, and that will probably take up a fair degree of the early work that they will be doing. Over time, there will be a more and more strategic view of the act on the part of the Information Commissioner. I would imagine that these issues will be regularly looked at. Once it comes to the review, I would hope that they would be reflected in the review references so that we can look at it, because we know and believe that this will not be mistreated power.
I certainly have every confidence that our Chief Minister will not misuse that power, and it is for all of us to judge. You all have the ability to see how often those certificates are used over each year. You have the ability to go out and tell people whatever you like about our honesty or integrity in the carriage of the principals of this act, and that is only proper. It is the environment that I would hope this legislation is going into, that we all take collective responsibility for it.
Mr MALEY: I do appreciate your candid answer, and your seemingly genuine interest in the subject matter. However, can you - and it is not something strictly to do with clause 61, it is a matter you raised. Are you able to say when the Information Commissioner is going to be appointed? Have you a time frame yet as to when it is going to happen?
Dr TOYNE: Yes, I can inform the House that we will be advertising that position this weekend, and we will be moving to appoint as quickly as we can get the applicants and do the normal thing.
Clauses 53 to 62 agreed to.
Clause 63:
Mr BURKE: Mr Deputy Chairman, the amendment with regards to clause 63 is to omit the words ‘or body’ and substitute ‘or body other than the Commissioner’, so that the full clause 63 would read:
Despite any other act, no person or body …
Other than the commissioner:
… is entitled to investigate, inquire into, review or otherwise call into question –
(a) the issue of an exemption certificate in respect of government information; or
government information.
It is clear from the Attorney-General’s comments that the government does not intend to support that amendment; that is their prerogative. It is disappointing that, as I said today, the opposition, notwithstanding the fact that, in terms of the practical application of this act where we believe in its practical application, which will not be apparent for some years to come, it will be deficient in many areas. We were prepared to support the legislation provided that amendment itself was supported. It seems to me to be a pretty simple amendment to support. The Attorney-General has said much about the trust that he has in the Chief Minister, the fact that he does not believe the Chief Minister would use that ultimate veto in an irresponsible way.
Certainly, that is his point of view; we are talking about legislation here, and the opportunity to put in place very good legislation. The government can go on and say, as the member for Wanguri said, that with the CLP you got nothing. Well, we are not talking about the CLP this evening, we are talking about your legislation, your guarantees to Territorians. The end result of your FOI legislation is that the ultimate veto rests in the hands of a politician. As I said in my comments today, we know, at the end of the day, what Territorians and Australians think of politicians. When it came to the vote for a republic, the slogan that won the day was: ‘We do not want a politician’s republic’.
I would imagine that what you have set up here is a politician’s FOI. Notwithstanding the fact that you might consider it to be something that will not be actioned by the Chief Minister, the reality is, there is an easy way around it: simply give the Information Commissioner the ability to inquire into the fact that the Chief Minister has issued an exemption certificate.
I would imagine that the way the Information Commissioner did that, could be done quite confidentially. The Information Commissioner would simply have to say in his report,: ‘One exemption certificate was issued. I have spoken with the Chief Minister. I have inquired into the reasons why that exemption certificate was issued, and I am satisfied as to the decision of the Chief Minister’. It does not take anything away from the Chief Minister having the ability to act responsibly; it simply puts in place a mechanism whereby the public are satisfied that, right throughout this whole process, politicians, at every part of the process, have some check in place. To my mind, it would be a very simple way for you to be able to stand squarely and say that this is an act that has the politicians under scrutiny right throughout the whole process. I do not suppose I can say anything more about it, except that, as I said, it is a pity that you do not wish to do that.
You made the point that the person who is the most sensitive in the Northern Territory and would be privy to all the information at the end of the day would be the Chief Minister, but you and I know that there are public servants who are privy to more information on a day-to-day basis than any minister or the Chief Minister. They attend conferences, some of which have security classifications and require people cleared to that classification, to a level that the Chief Minister would not even be cleared to. It would only be by exceptional circumstances that the Chief Minister, himself or herself, would need to get special approval to participate in briefings that one or two public servants might be privy to on a regular basis. So, it is not good enough to say that only the Chief Minister has access to this information.
The reality is that public servants, by virtue of the Public Service Act, the act that they themselves operate under, are under not only the constraints of the act, but also the responsibilities that, I believe, we can trust them with fairly and squarely. That authority, confidentiality, maintaining the confidence of government, and ensuring that the wrong information does not get to the public, is in the hands of senior public servants, and independent office holders on a daily basis.
Why then, when you have this important position of the Information Commissioner - and remember, the Information Commissioner is not a new term to me. Information Commissioner was something that, when we were in the early stages of developing this act, it seemed to me to be the threshold issue as to why this act could really be a very good and new act in the Northern Territory, as it progressed: that you had an Information Commissioner who could stand separately and alone and, frankly, all-powerful in the way that they oversaw the operations of this act.
What has been the end result, unfortunately, is that the Information Commissioner’s role is really one of an educative role primarily, with limited inquiry responsibilities. In that respect, I believe it is unfortunate. I asked those questions before, in terms of the way the Chief Minister could issue an exemption certificate, for that very reason. It is one thing to say: ‘Oh, the act confines the Chief Minister to only issue an exemption in these particular areas’, but you are asking Territorians to take that all on trust. The reality is that the Chief Minister could issue an exemption certificate on any area, if he or she so wanted. There is no appeal against that, there is no reason for the Chief Minister to give any reasons as to why that has been done, there is no way to check it, and there is no requirement for the Chief Minister to even divulge whether the information exists or not. It seems to me to be a real weakness in this act, that you do not allow the Information Commissioner some ability to inquire into a decision of the Chief Minister to exercise an exemption certificate.
That is what I would like. If you allow that amendment, I am sure as you said, as this act progresses it may be that you find an instance whereby you say: ‘Well, that needs to be removed’. However, you are coming from the position that has been criticised. You are coming from a position of: ‘Let us not do it for fear that some information may get to the public’. That has been a threshold criticism of the way these acts tend to evolve; that is, that the culture is one of ‘Let us not give the information for fear of the wrong information going out’, when all of the arguments that are coming through on FOI is be brave enough to put the information in the hands of those who can possibly see that it is accessible. In the case of the Information Commissioner, it is unfortunate their roles and responsibilities have been strongly curtailed.
Mr WOOD: Mr Deputy Chairman, I also support the amendment. My reasoning is based on one of the opening clauses, under the Object of this bill, and one of those objects is clause 3(c):
- to establish an independent office holder, the Information Commissioner, to oversee the freedom of
information and privacy provisions of this act’.
What it is saying is that the Information Commissioner is to oversee this act, and here we have this one section where he or she cannot oversee. It seems to me that, not only would that be a good idea that the Information Commissioner did oversee the exemption certificates, but it also would be more in fitting with the whole reason this act exists.
We are telling people we are producing an information act but the information in this one section; that is, the information to find out whether an exemption certificate has been handed out for a section of the act which is not entitled - well, we will never know. It seems to me that we have an opposite in this clause. We cannot find out. You might call this the non-information section of the act, and by putting that Information Commissioner in there, we bring that section of the act back in with what the intention of this act was.
Mr MALEY: My observations and support for this clause are obvious. It makes sense. I will put it at a practical level, and remember that in light of how clause 61 is drafted, the Chief Minister must be personally satisfied that the criteria of clause 61(1)(a), (b) and (c ) have been met. What if some important information was not before the Chief Minister when that decision was made, and that decision, made without that piece of information, was, of course, wrong at law? Why can’t that process be subject to a review? Why can’t an independent person, the person who - as the member for Nelson quite rightly pointed out - has an important role that is referred to in the Objects as a reviewing role, the Information Commissioner, look at the factors that were taken into account and satisfy herself or himself that the Chief Minister properly issued and exemption certificate?
It goes down the path of establishing more public confidence in this type of legislation. It establishes an appeal mechanism, because no one gets it right all the time. To really have a broad ouster type clause like clause 63, without the very sensible and timely amendments suggested by the member for Brennan, would be providing people of the Territory with a substandard piece of legislation. That is one point.
The second point is I seek some clarification - and you will probably have to talk to one of your advisors there – on the phrase ‘despite any other act’. I read that somewhere but it escapes me what it means. Perhaps you could just inform parliament exactly what ‘despite any other act’ means. That is clause 63, the first four words. Does that phrase have any particular legal meaning,?
Dr TOYNE: I will clarify that first. What that is saying is that the Ombudsman could not come in under his powers of investigation and cross over to a decision here.
I take on board what you are saying. There have always been a number of arguments as to how you best deal with the most sensitive areas. We have taken a particular view about it and, obviously, you have argued the other. We believe that, in this case, the very low likely use of that category will not put the general public of the Northern Territory into any great danger of having the information denied them. We will take that political path because, clearly, having the Chief Minister in that position is a political issue, and we will argue that that is the best option available to us.
I want to point out that neither did we want to create the Information Commissioner with powers that go beyond the Cabinet and the Chief Minister. When you look at the alternative of the Information Commissioner being able to virtually demand, under his or her powers under the act, from the Chief Minister of a jurisdiction, there are dangers there, too. We are all assuming that the Information Commissioner will be entirely and at all times altruistic and wanting to get the job done, but if you had a person who, for one reason or another, wanted to misuse that position, there are dangers attached to that. I am very optimistic about this. I do not think we are going to see a major catastrophe in terms of the Chief Minister’s power, or a major catastrophe associated with the Information Commissioner.
So, we are just going to have to agree to disagree on this, because none of the arguments that have been put - I absolutely understand the line of the argument, but we disagree with you. That is all I can say.
Mr MALEY: Okay. I have one point of clarification. You just said, so there is no ambiguity, that the Chief Minister should not be subject to review, the Chief Minister is effectively above the law. Is that what you are saying? You are saying you do not want the Information Commissioner reviewing the decision of the Chief Minister because the Chief Minister’s office is sacrosanct, and that is it. That is what you are suggesting.
Dr TOYNE: No, no. Let me clarify that.
Mr MALEY: That is what you said. So you had better be careful about what you are saying and perhaps amplify.
Dr TOYNE: Yes, all right, I will clarify it. The Chief Minister is not above the law. The law, in the case that we are talking about here, will be the Information Act. The Chief Minister’s actions are very carefully defined within the act. If the Chief Minister contravenes the letter of the law within those exemption certificate powers, she will suffer the same consequence as anyone who contravenes the law.
The committee divided:
- Ayes 11 Noes 12
Mr Baldwin Mrs Aagaard
Mr Burke Mr Ah Kit
Ms Carney Mr Bonson
Ms Carter Mr Henderson
Mr Dunham Mr Kiely
Mr Elferink Ms Lawrie
Dr Lim Mr McAdam
Mr Maley Ms Martin
Mr Mills Ms Scrymgour
Mr Reed Mr Stirling
Mr Wood Dr Toyne
Mr Vatskalis
Amendment negatived.
Clause 63 agreed to.
Clauses 64 to 85, by leave, taken together and agreed to.
Clause 86:
Mr WOOD: Mr Deputy Chairman, I am wondering whether it is a sign that the temperature of this House is so cold, that that is the feeling that I am getting from the government about all these amendments.
I move amendment 25.6. I put this amendment up and hoped that the government would support it. I have not heard anything to the contrary, so I am living in hope, because I think it is a very important. You never know, they might just have a change of heart.
This is a very important amendment to the bill, because the person who is appointed Information Commissioner has a very important job. I certainly do not believe that this job should be at all tainted in any way with the possibility that it could be a job for the boys or the girls, or it could be somebody who comes from a certain group which says: ‘I think it is his turn to get one of these jobs, he will get the next one that turns up’. We need a person who is well qualified, but we also need a person who would be seen by the community as someone who is completely fair, and not be swayed by any previous connection for whatever reason, with the government or any other group in the community, whether it is legal or otherwise.
So, it is very important that parliament takes a key role in the appointment of this Information Commissioner. One way to do that, I believe, is for the Standing Committee on Legal and Constitutional Affairs to unanimously approve this particular person’s appointment. That is the fairest way; it is the way that would mean that we have a bipartisan appointment of this commissioner, and that bipartisanship, of its very self, will show the people that we have appointed an Information Commissioner who can be seen to be fair and bipartisan. It would give people a lot of confidence that they have a commissioner in whom they can place their trust.
Dr TOYNE: We believe, as you have said in an earlier amendment, that this is going in entirely the wrong direction. We are all getting very sensitive about politicians being too close to these sort of decisions. We have taken the view - and we certainly intend putting that into action over the next few weeks - that we need to get an expert panel to interview in an open application process, with agreed criteria as to what sort of skills and background the Information Commissioner should bring to the job. That has been set up to the point where you can all have a look at that in the paper this weekend, as to what are the key duties of the Information Commissioner, drawn from the act, and the background that we would like them to have. I believe that, similar to the appointment of the Anti-Discrimination Commissioner, which occurred just recently - and potentially other statutory positions - that the most appropriate thing is to get a non-political, expert panel to make the selection.
To take up the other point that you were making, yes, this is a matter of great importance to the community, and community representation on that panel is a very important issue. We would be wanting to see some powerful community representation on the selection panel, and that is the direction we have gone in the bill. We do not believe politicians should be directly involved in the selection of a statutory officer.
Mr MALEY: Attorney-General, you appoint the panel, and if that does not make it at least in some way affected by the political process, then I do not know what it does. I suspect that the panel will invariably …
Dr Toyne: I do not appoint the panel.
Mr MALEY: You appoint the panel and then you have one of your stooges sitting as a member of the panel. So this is an excellent safeguard being suggested by the member for Nelson, and one which we support. It is fair and it really goes a long way in ensuring that you do not appoint some party stooge. You have politicians on both sides and an Independent involved, and it is a requirement to unanimously approve the person’s appointment. It is a great safeguard. It is really a return to parliamentary democracy as opposed to what we are seeing more and more from this lazy Labor government’s executive democracy.
It was our own Clive James who said that democracy can be even more important for what it prevents than for what it provides. The amendment, the extra subclause (3) to clause 86, as suggested by the member for Nelson, has my complete and unconditional support. It really goes some way in casting a fairly serious shadow over the narrow-minded members opposite, when they do not support this particular amendment.
Mr STIRLING: I have been very restrained, Mr Deputy Chairman, but the hypocritical ramblings that come from the shadow Attorney-General in this last point just leave me breathless. I have to put on the record: why would a government have any heed to representatives of a political party that opposed freedom of information for 26 years, did not want to know about it, never put a draft bill in, despite promising FOI legislation at several elections? When Manzie was reminded of it at one stage by me, they could not remember! They could not remember having promised it at the 1994 election. Yet, that representative of the same political party that has opposed FOI for 26 years has the hide and the gall to come in here and demand to be represented on the selection committee to pick the Information Commissioner. That just leaves me breathless in relation to the hypocrisy and audacity of the shadow Attorney-General.
The other point, of course, and it was well picked up by the Attorney-General, was on the one hand a couple of amendments ago, we were being told that the Chief Minister is too close to the process as a politician, and now they want politicians and themselves to have a say in who would be the Information Commissioner. Well, if Sunshine and his bunch over the other side were still sitting on this side of the Chamber as government, we would not be sitting here debating about who might be an Information Commissioner, because there is no way in the world that we would be having FOI legislation. So you can forget about that little amendment.
Mr WOOD: Somehow, things get out of hand in this place because I am not the opposition and I have not been here 20-odd years. I have just arrived in this parliament and I hope I bring a fresh point of view to some issues. This is a fresh point of view: you are not going to get political interference in the appointment of this particular person if you are required to get six people to unanimously approve the person’s appointment. That is the very reason the word ‘unanimous’ was put in there.
The other problem you have is exactly what the member for Goyder said. Who selects the people on the selection panel? The government. Who guarantees that those people who will be picked on that selection panel do not belonging to a specific group that has a viewpoint about who should be on it themselves? Here, we are allowing people to see an open process where two parties, and perhaps an Independent, have to unanimously select this person. You could not get a more fair and open process. It is not a party political process; that is what we are trying to avoid. It is a political process that tries to select a person whom the people will see that both sides of parliament have agreed to. I would have thought that sets up in the public’s mind clearly that we have a person …
Mr Stirling: And the Chief Minister could not be trusted five minutes ago.
Mr WOOD: We are not dealing with the Chief Minister here; we are dealing with six politicians who will have to unanimously agree …
Mr Stirling: Could not be trusted before.
Mr WOOD: Well, that is another argument; you can talk to the member for Goyder. I am the one that proposed the amendment, and if the amendment is going to be defeated by the government based on what the opposition did, then I would say that is very narrow-minded. The intention of this was to make the appointment much more open.
Mr Kiely: It is all too nave.
Mr WOOD: Well, it might be nave for some. I would say it is politically narrow-minded by others. The reason I am proposing this is to try and bring a new perspective to the appointment of such a person. I believe that someone like the Anti-Discrimination Commissioner should be elected by that process also, so you take it away from party politics and you allow this Chamber to unanimously select those people. I am extremely disappointed. I probably should say cynically. I am very sorry members of the government did not take up an opportunity to have a briefing from me, but that is the way it goes.
If you had, I possibly could have explained it to you better and you might have looked at this in another light. However, as it is, I still think this is an important amendment. I will be saying to people that I believe, once again, the government has missed an opportunity to make this act better. I am not proposing this to knock the government or to restrict the government. I am saying, and as I have said all along with the amendments tonight, these amendments, I hoped, would make this act better. All I have is about as much cold air as is coming out of this airconditioner tonight.
It is disappointing that you can propose good amendments that you would hope would make the bill better, and for some reason on this one - well, it is something to do with opposition. But it does not appear to me that this amendment is taken on its merit. It is taken more on ‘Well, this is what happened 21 years ago’. I am not part of the 21 years ago; I am proposing it as a reasonable approach to making this bill better.
Dr TOYNE: I want to summarise this latest discussion. We have just been through these processes. You are moving to appoint professional people into a very complex statutory position within the Northern Territory. If I were a professional, whether that be a lawyer or an archivist or whatever background came into this particular round of applications, I do not think I would want to be interviewed by non-experts in the field. Second, I would want to be given a mandate from a lot of the people who I am going to be working with, day in day out, for the period of my appointment.
The same principles have been applied to the recruitment and placement of the Anti-Discrimination Commissioner, the same would apply to the Ombudsman if there was a time when that needed to be, and the DPP. We are talking about very high level jobs here, and the sort of people I would want in front of me would be, say, someone from the Northern Territory Archives Service, someone from the Department of Justice who has a legal background - people who can actually assess your professional ability to take on that position according to the criteria that are put in front of you.
It would be quite a humiliating experience to go to a committee meeting where you may get all sorts of beer and skittles and everyone saying: ‘Yes, what a wonderful process’, but you are just as likely to get a bun fight. You know what committee sessions are like in our parliament. How would you want to be submitting an application at a high professional level and stand there while six people tear each other’s throats out? Put simply, I am not attracted to the idea at all. We are certainly not intending to change the proposal in the bill.
Mr WOOD: I would say, like any committee, you would have your advisors on your committee to help you look at the people who are applying for the job. I certainly do not think you would be having an argument in front of your applicant. I think that would be the height of bad manners, to start with.
However, you would interview people, and you might have on your committee people from various groupings, various qualifications, who could help you analyse the person’s background to see if they are suitable. You have the guidelines in the act as to what the powers and functions of the commissioner are. I would presume that politicians do have a reasonable amount of experience, otherwise they would not be in parliament. I do believe that, if you got six of them together, that they would have to work very hard to get the right person because you have to have a unanimous decision. That is the very reason that it was put in; that you would have to work out and spend your time in selecting the right person.
It may be that you had a pre-selection panel, which basically took out those people who obviously were not suitable, but you might be left with three or four people who you were then given to decide whether they were the ones. There are ways around that. The dangers with the other way is that it will be seen to be a political decision; that is, a party political decision. This way you can make it a political decision. There are ways to do it if you want to do it, but I obviously feel that the government does not want to do it and, therefore, it will put in reasons as to why they do not think this system would work.
Amendment negatived.
Clause 86 agreed to.
Clauses 87 to 91, by leave, taken together and agreed to.
Clause 92:
Mr WOOD: I move amendment 25.7. This was put in to make sure that the minister, when he terminated the not-so-independent commissioner of the Legislative Assembly …
Mr Kiely: That is a bit of an insult isn't it?
Mr WOOD: Well, lesser than …
Mr Kiely: No, no, it is the appointment you said you were concerned about not the individual. Now you turn it on the individual. You just said it then.
Mr DEPUTY CHAIRMAN: Order! Let the member for Nelson continue.
Mr WOOD: There is no individual being selected at the present time, it was just a little dig.
The second amendment is about making sure the parliament be properly informed of the decision to terminate the appointment of the commissioner. I do not believe that would do anything different to this bill except require the minister to at least let the Legislative Assembly know as to why there was that termination, and to specify the reasons for that termination. Surely that would get support from the government.
Mr MALEY: In any case, it would certainly get support from the opposition. The proposed amendment is very straightforward and simple, and makes sense. If the termination ever occurs, all that is required, on a strict reading of the new subclause (4), is that this Assembly is informed about it. We already have clause 92(3) that says that a termination under the section is to be in writing. Well it seems that, to comply with subclause (4), all that would be required is to provide a copy of that written termination to this Assembly. It is a straightforward amendment, and one which the government should take on board and incorporate into clause 92.
Dr TOYNE: Mr Deputy Chairman, we support the amendment.
Amendment agreed to.
Clause 92, as amended, agreed to.
Clauses 93 to 129, by leave, taken together and agreed to.
Clause 130:
Mr ELFERINK (by leave): Mr Deputy Chairman, I move that clause 130(1) be amended by omitting the words ‘on a question of law only’.
The reason I move this is because I have heard the Attorney-General refer repeatedly to the judicial review process which is available in relation to a decision taken with regard to this act. I am sure the Attorney-General would be fully aware of some of the limitations that the words ‘on a question of law only’ place on the review process. Indeed, some of the examples he has cited tonight would be issues of fact and not law. Nevertheless, he says that that judicial review process is available on fact. I do not believe that that is the case; in fact, clause 130 clearly states that.
To give the Attorney-General some idea of where I am coming from in relation to this, I refer the Attorney-General to the Administrative Decisions (Judicial Review) Act of the Commonwealth to give you some ideas on issues that operate outside areas of law. In that act, a person who is aggrieved by the decision can make an application to a court on the grounds that (a) it breaches the rules of natural justice occurring in connection with making of a decision; (b) that the procedures were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have the jurisdiction to make the decision; (d) that the decision was not authorised by the enactment and pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of power conferred to it by the enactment in pursuance of which it was purported to be made - and I will skip (f) because that deals with a question of law and go onto (g) that the decision was introduced or affected by a fraud; (h) that there was no evidence or other material to justify the making of the decision, and (j) which is the 10th area, also deals with an issue which is contrary to law, and what might be contrary to law still might be a question of fact.
So, essentially, in nine areas there is only one in the Administrative Decisions (Judicial Review) Act which deals with a question of law. What about the issue of fraud? I ask the Attorney-General, what about any number of those other areas where there has been an exercise of power which will simply not be a question of law - will simply be a question of fact? Certainly, if the Attorney-General believes in a free, open, honest and accountable system, he is quite prepared to have the Supreme Court - in fact, he said it several times tonight, that he is fully prepared to have the Supreme Court of the Northern Territory - review decisions. So, I would expect his support.
The accusation has been made several times tonight: ‘Well, you guys never did this and we are doing it …
Mr Bonson: Well, it is the truth.
Mr ELFERINK: That is true. And guess what? We never built the aeroplane. You guys are arguing that you should build and aeroplane but you are not prepared to give it wings. You are prepared to let it taxi to the other end of the airstrip, but you are not prepared to let it fly, because you cannot control it after it flies. That is what this is really about.
However, in the spirit of what the Attorney-General had to say, I would ask the him to accept this amendment from the floor. It is a very straightforward amendment. All you have to do is remove five words and the judicial review process can be complete for the people of the Northern Territory.
Dr TOYNE: Well, it might only be five words coming out of the act, but what you are going to lead us into is a huge bog of potentially broad and continuous court action on behalf of people who are pursuing their interests through the bill.
We have spent a lot of time trying to bring this process into a streamlined form, one that is based as much as possible on mediation, and on the decisions made by various levels of the agency, and then on to the Information Commissioner. We do not see any logic in taking all matters that may occur to applicants, back into a Supreme Court process. The purpose of the phrase ‘on a question of law only’ is to use the courts to clarify, define, scope out, the use of terminology within the act and how it is going to be applied to individual cases. We are not interested in building a new superstructure of legal action based in the Supreme Court to determine individual applications as an alternative to the mediation process.
Mr ELFERINK: Oh, really? This is the very nub of the argument that I have been trying to run all night. The fact is that the federal legislation is fully prepared to do what I suggest. In fact, it does it. That whole body of law is out there. So, what I am asking you to do is quite simply this: allow yourself to be led by other jurisdictions, as you have argued the whole way through tonight - that other jurisdictions are guides for this and other jurisdictions are guides for that. Well, allow another jurisdiction, the Commonwealth in this instance, to guide you with their experiences. Their experiences allow nine criteria to be taken into account, minister, so that the court system - either Federal or Supreme at the state level - is able to review administrative decisions. That is the very nub of the argument which is happening here tonight. The argument is simply this: do we allow the control of this piece of legislation to move to another area of government? In this instance, I am referring to the other area of government being the courts. That is where this last grab of control needs to be nailed down.
That is the reason this piece of legislation is going to have trouble flying, because of that last element of control. The former member for Wanguri, John Bailey, used to rail against the level of control. This is the very chance that you have to bring John Bailey’s vision, if you like, the control away from the executive arm of government. That is the simple challenge which I am putting to you here, minister. If you are not prepared to do that, then everything that you have said, every platitude in trying to convince us that this legislation is truly freedom of information legislation, is out the window. It is simply so inconsistent with the principles of everything that you have said, it means that it just will not be able to convince anybody that you are really prepared to allow free freedom of information.
Dr TOYNE: First of all, you are quite wrong about the Commonwealth process. It goes to the Administrative Appeals Tribunal, not to the judicial review. That is probably for similar reasons that we want to curtail the use of the courts for other than the types of cases that I have indicated, where you are trying to actually get clarification of some criteria, or some action under the act as it will be.
We do not see the virtue of having a major court process attached to the complaints process. It will be expensive; and slow the whole process down. If you are worried about the independence, you are dealing with a completely independent statutory officer in the Information Commissioner, who will not be controlled any more so than the Anti-Discrimination Commissioner, the Ombudsman, the DPP. We have plenty of positions like that in our current government system. The independence will be lodged with the Information Commissioner who will then pursue these matters through to a meditative process as much as possible.
Mr ELFERINK: Well, the minister is fully aware, I am sure, that the Administrative Appeals Tribunal is a tribunal which is attached to the executive. Under the Administrative Decisions (Judicial Review) Act, section 5, it is entirely possible to take any of these issues to a court of law. Then a court of law will make a decision, within the parameters that it set itself within the common law by and large, and return that decision and make an order accordingly. Often that order would be simply to send the matter back to the tribunal that has made that decision. However, at the end of the day, other jurisdictions allow this. For the Attorney-General to stand up here and say that it does not happen in other jurisdictions is hogwash, absolute hogwash.
It is simply that the Attorney-General cannot, despite the fact that he has said a dozen times: ‘I really think that the review process is going to happen willy-nilly;’. ‘We will allow reviews’, he said at least four or five times. Not a dozen, four or five times. Yet, when you give him the opportunity to open it up properly: ‘Do not worry about what I just said. We are not going to have the court system looking into this’. Well, what is it? You told us at least four times that the court system was going to operate. It does not, and you know it, and that is the reason, when I have nailed you down on this point, you are just not going to bend.
Mr Stirling: No.
Mr Elferink: That is exactly right.
Dr TOYNE: If you had sought a briefing on this matter, we could have enlightened you on it. This is going to be one of those situations where, if we stood up here for the next three hours, we would still disagree on it. We have made our position very clear. I suggest we move on.
Amendment negatived.
Clause 130 agreed to.
Clauses 131 to 154, by leave, taken together and agreed to.
Clause 155:
Mr ELFERINK (by leave): Mr Deputy Chairman, I move that clause 155 be omitted. I am not going to labour on this at any great length. My position is quite clear to the Attorney-General how I feel about this. However, I do wish to visit it quickly in one area.
The clause says quite simply that no other body is allowed to investigate or inquire into a review, or otherwise call into question an act or decision of a public sector organisation or the commissioner under this act. Now, that is pretty straightforward. Nobody can have a look at what the public service is doing or what the government is doing, and the only avenue of appeal in to the courts is on a question of law. So, they can commit a fraud but so long as the fraud is a matter of fact in the decision, the courts cannot pay any attention to it. That is just unhealthy.
I also pause briefly in relation to clause 155(b):
- no proceedings for an injunction, a declaration or an order for prohibition or mandamus are to be brought
in relation to the act or decision of a public sector organisation or the commissioner under the act.
I am just wondering if the minister can advise me if writs of certiorari are included in that particular section.
Dr TOYNE: We do not have a clue what you are talking about. Can you have another go at it?
Mr ELFERINK: Well, it is a writ of certiorari, the writ that I am referring to is the one that demands documents. It is an administrative law writ, and it is a commonly used tool in other jurisdictions. Am I pronouncing it right?
Mr Stirling: I wish you had taken a briefing.
Mr ELFERINK: Well, if he had come in here and stopped telling me that the courts are available for everybody to appeal to, then I would not have to do stuff off the floor, would I?
Mr DEPUTY CHAIRMAN: All right, member for Macdonnell. The Attorney-General is taking advice. Are you ready now, minister? If you could please proceed.
Dr TOYNE: Yes, I am absolutely keyed up and ready to go, Mr Deputy Chairman. Yes, writs of certiorari; if it is not in there, it is not excluded. To clarify that, if it is not in what will be the act, it is not excluded, if that is what your question was.
Let me explain our general position to this, which should not come as any surprise, given the reaction that we gave you on the clause 130 amendment. We do not want to go down the path of opening up a much more expensive and cumbersome court-based process. The whole point of the structuring of this bill was to bring the process into more of an administrative process, based on mediation where possible, and with a hearing if mediation fails. That is more cost effective, it is better for the applicants because they can get the thing turned around more quickly, particularly as there are time constraints on how long each step is going to take.
You want to lead us back into a court system where you could find matters going on for years and costing a huge amount of money. If you want to pay for it, send us a cheque.
Mr ELFERINK: All too cute, Mr Deputy Chairman, all too cute. The truth of the matter is that this government is not prepared to live up to its promise in relation to freedom of information legislation. What they are arguing for is a system controlled by their hand, and that really is the nuts and bolts of this whole process. By not allowing a court system to review the already extensive process I admit that they have in place, at the end of the day, they have nobbled their own legislation.
Clause 155 agreed to.
Remainder of bill, by leave, taken as a whole and agreed to.
Bill to be reported with an amendment.
Health and Community Services Amendment Bill (Serial 86):
Bill, by leave, taken as a whole and agreed to.
Bill to be reported without amendment.
Ombudsman (Northern Territory) Amendment Bill (Serial 87):
Bill, by leave, taken as a whole and agreed to.
Bill to be reported without amendment.
Bills reported, report adopted.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bills be now read a third time.
Motion agreed to; bills read a third time.
MINISTERIAL STATEMENT
Defence Support in the Northern Territory
Defence Support in the Northern Territory
Mr HENDERSON (Defence Support): Madam Speaker, tonight I provide the House with a ministerial statement on the contribution Defence makes to the Northern Territory economy.
There are now more than 6000 uniformed and public service Defence personnel based in the Northern Territory. Together with their families, the total Defence presence here has now reached approximately 14 000 people, about 7% of the Northern Territory population. The Defence Housing Authority owns or administers over 2500 residential properties in the Northern Territory. Since the commencement of the Army Presence in the North project in the early 1990s, the Australian Defence Force has invested more than a $1bn in infrastructure developments in the Northern Territory.
Northern Territory industries such as housing, retail trade and tourism have all benefited substantially from the increased Defence presence here, helping to broaden the base of our economy. Whilst the Defence presence has produced obvious benefits for the Northern Territory, the reverse also applies. Defence is a shared responsibility. Whilst the Defence build-up in the Northern Territory has been significant, proposed changes to Defence capability will ensure that this growth will continue. For example, the federal budget for 2002-03 confirmed an additional $78m for expenditure on infrastructure works in the Northern Territory.
I take this opportunity to focus on Bradshaw Station. I am pleased to be able to advise members that I am very confident that the Indigenous Land Use Agreement (ILUA) between the Commonwealth and the Northern Land Council, representing the traditional owners, will be formally signed off in November. The final outstanding issue has been satisfactorily resolved. The signing of this agreement will allow Defence to proceed with $50m-plus of infrastructure works necessary for conversion of the property into a Defence training area.
It is appropriate for me, at this point, to offer my congratulations to Darwin firm, Steelcon Nortask, which scooped the pool at the TCA Awards night last Friday evening, when it won the Civil Construction Section Award, and the President’s Award for Excellence in the construction of the bridge across the Victoria River, which will be the primary access to the training area.
As I said earlier, Defence expenditure will bring significant benefits to our economy and create new business and employment opportunities. Key features of the 2002-03 program of Defence works and estimates of expenditure include: $27m for the commencement of infrastructure works at Bradshaw Station; 1 Aviation Regiment relocation, $10m; various works at RAAF Base, Darwin, $4.6m; various works at Robertson Barracks, $7.775m; various works at RAAF Tindal, $13.8m. In addition to this expenditure, an extra $22.3m has been allocated for the continuation of Australian Defence Force border protection operations, most of which are carried out in Northern Territory waters.
The Defence, Petroleum and Mining Support Group of my Department of Business, Industry and Resource Development is responsible for encouraging Defence industry growth and development in the Northern Territory. To achieve this objective, the group works in close cooperation with the Department of Defence, the Australian Defence Force, and Defence prime contractors. The competition for Defence work is extremely tough. Maximising involvement by local businesses is not an easy task, and can only be achieved through close cooperation with Defence at the national level, as I have just mentioned, and through strategic alliances at the local level with relevant defence agencies. These agencies include Headquarters Northern Command, the Defence Material Organisation, the Defence Corporate Services and Infrastructure Centre, Northern Territory Kimberley Region and the Joint Logistics Unit North.
To facilitate Northern Territory industry involvement in Defence commercial support opportunities, my department of DBIRD provides secretariat and financial support services to the Australian Industry Defence Network, Northern Territory (AIDN-NT). Chaired by Mark Smith, managing director of North Australian Radio and Electronic Services, AIDN-NT’s primary objective is to generate Defence business opportunities for its members from the millions of dollars spent on both major and minor projects by the Department of Defence each year. I note that Mark’s own company based in Darwin is a significant hi-tech supplier to the Defence forces. He understands the challenges and opportunities that Defence support present.
I place on the public record my thanks to the previous Chair of AIDN-NT, Robin Pink, the ex-General Manger of Darwin Ship Repair and Engineering, who is retiring in a couple of months time, for the years of service that he put into AIDN-NT. He made a huge difference to that organisation, and he will be sorely missed, but I am sure that Mark Smith will continue to do a great job.
Another way in which my department interfaces with Defence and industry is through participation and seminars, such as the three-day 2002 Defence Industry Seminar held in Canberra earlier this year, which was attended by more than 1400 delegates from around Australia. My department also sponsors local participation on the Defence and industry study course. This course, conducted and coordinated by the Defence Material Organisation’s regional office, provides senior representatives from Defence, industry and government with the opportunity to enhance their understanding of the Defence sector, and develop industry contacts.
Time and again, local industry has demonstrated that it has the capability and the capacity to support sophisticated technology and equipment used by the ADF. Indeed, the contribution by local industry to Defence capability in the Northern Territory, by local companies such as Everett Engineering Services, Premier Fuel Injection Service, Darwin Ship Repair and Engineering, Dynamic Turbocharger Services, Mack Trucks, Boscato, Sealanes Albatross, but to name a few, is well recognised. The record shows that 121 separate contracts were awarded in 2001-02 by Defence, directly to local companies. Over and above this, local firms benefit substantially, through delivering services to Defence as subcontractors to major national firms, particularly in the facilities management sector.
In July, the Chief Minister and I, along with the Leader of the Opposition, and I think the member for Karama, attended the official opening at Palmerston of the General Motors Defence Australia Darwin Logistics Centre. As well as providing employment opportunities, this facility has the potential to expand beyond its current role as a parts storage and repair shop for the Australian Light Armoured Vehicle, to become involved in supporting other ADF initiatives such as the replacement patrol boat project.
The Defence white paper released in October 2000 reaffirmed that the priority for the ADF is to maintain a capability to defend Australia’s Territory from any credible attack, without having to rely on assistance from defence forces of another country. The Northern Territory, by virtue of its location, is a critical component, in terms of Australian defence planning, and represents a central focus of ADF defensive operations due to its capacity to provide support to, and sustainment of, operations in the northern approaches to Australia.
These operations include non-military activities that require a whole-of-government approach, such as air-sea rescue, coastal surveillance, and in relation to illegal migration, the drug trade and illegal fishing. Headquarters Northern Command is the Australian Defence Force’s main point of contact with the Northern Territory government for operational requirements in connection with Defence operations in northern Australia. Headquarters Northern Command also facilitates the delivery of Defence emergency assistance, when required, to the civil community - assistance provided during the Katherine and Daly River floods being examples of this.
NORFORCE, the Northern Territory’s regional force surveillance unit, conducts surveillance and reconnaissance within the Northern Territory and the Kimberley region. With approximately 50% of its establishment comprised of indigenous people, NORFORCE is the largest employer of indigenous people in northern Australia. As well as benefiting from the skills of its indigenous members, NORFORCE’s training and development program provides the means to transfer a wide range of military skills into various indigenous communities. Its headquarters, operational support squadron, and Darwin squadron, are located at Larrakeyah Barracks, with other depots based at Alice Springs, Katherine, Broome and Nhulunbuy. Indigenous members are considered by community elders to be appropriate role models, and we have received feedback that NORFORCE is an important mechanism for reinvigorating indigenous pride. Furthermore, the wages of NORFORCE personnel contribute to the economies of local communities.
The 2002 Defence and Industry Regional Briefing Program, to which the Chief Minister delivered the opening address, was held during September at MGM Grand. A primary focus of the conference was on articulating defence industry policy in the Australian Defence Force’s forward procurement plans, and on Defence projects impacting on the Northern Territory. Conducted on an annual basis, this program is hosted by the Defence Matriel Organisation regional office headed by Mr John Zupp. Mr Zupp’s office works in with the Defence, Petroleum and Mining Support Group of my department to assist industry in its efforts to understand how to best do business with Defence. In this regard, I draw attention to the fact that key representatives of the Defence Force in the Northern Territory, including Brigadier Mike Silverstone, participated in the focus group review process associated with the government’s economic development strategy Building a Better Territory. I have to say that, as a result of their participation, we have a better document than might otherwise have been the case. I take this opportunity to thank the Brigadier for his strong commitment to the Territory, and to wish him well in his new posting at the end of the year.
The ADF Armed Reconnaissance Helicopter Project, also referred to as Project Air 87 is close to delivery. In December 2001, the federal government approved the acquisition of 22 armed reconnaissance helicopters at a cost of $1.3bn. The aircraft, referred to as the Tiger, will be introduced into service between the end of 2004 and mid-2008. Army intends to locate 17 of these aircraft at Robertson Barracks, with the first aircraft arriving in late 2005. The combat unit to be equipped with the Tiger is the Army’s 1 Aviation Regiment. Presently, the regiment has its headquarters, technical and logistics support, and other elements, located at Oakey in Queensland. It is Army’s intention that the 1 Aviation Regiment be restructured to accept the new helicopters and co-locate it with HQ 1 Brigade at Robertson Barracks to develop the new capability.
The restructured regiment will have the strength of approximately 400, all ranks, of whom approximately half will be married personnel. The Department of Defence will seek a Parliamentary Works Committee hearing into this project seeking federal government approval for the capital works required for the relocation and co-location of the 1 Aviation Regiment at Robertson Barracks. The proposed works have a planned completion date of December 2004. This would allow the regiment to co-locate and develop its operational and administrative procedures prior to introduction of the new armed reconnaissance helicopters into operational service in late 2005.
However, Defence selected the Robertson Barracks greenfield site because:
the unit will be co-located with HQ 1 Brigade, a functional requirement of considerable
significance;
the east is used for extractive industry and will so be used for some considerable time. On
completion of extractive activities and the expiration of mining leases, Defence had options on
acquisition of the land. Defence ownership or control of these areas would reduce the risk of
urban encroachment on Robertson Barracks;
Commonwealth controlled land;
requirements and can accept significant future expansion;
messing, training and recreational facilities;
constraint of existing facilities;
co-location with HQ 1 Brigade;
precinct of Darwin Airport; and
barracks zone and master plans. The site is zoned for training and future major unit development.
Robertson Barracks is ideal for the regiment in terms of land use, size and relative isolation from
the barracks domestic areas.
The southern portion of Robertson Barracks is located under the primary approach to Darwin Airport. However, the Defence view is that this does not affect Army rotary wing aircraft operations. The proximity of the flight path, buffer zones, instrument landing systems and navigational and control facilities have been the subject of extensive liaison between Defence, CASA, Air Services Australia and RAAF Air Traffic Control. The parties have all agreed that, by utilising existing air traffic control procedures and protocols, 1 Aviation Regiment can operate from Robertson Barracks without any compromise of safety or operational capability.
It is intended that the primary approach and departure routes for Army aircraft will be to the north-east and to the north-west. This will ensure that the majority of low flying helicopter activity will be over Defence or Commonwealth controlled land, thus reducing noise impacts and avoiding the Darwin Airport flight path.
As a separate activity to the provision of operational and command facilities at Robertson Barracks, the Defence Housing Authority will address the requirements for off-base married quarters. Preliminary estimates place this requirement between 120 and 150 dwellings.
On the issue of Defence housing, I note that DHA has about 2500 properties under management around the Territory, the latest development being the high rise unit accommodation in Carey Street in the city, which is under construction. Apart from providing local firms with building work, it will boost CBD businesses as more people live closer to town. My department is continuing to work closely with the prime contractor, Defence officials, RAPAC and the local community, to maximise Northern Territory benefit from this project. In this connection, the department recently participated in the launch of the Australian Defence Industry Intellectual Property Training and Audit Program for Project Air 87. Sponsored by the Defence Matriel Organisation and IP Australia, the Intellectual Property Training and Audit Program is an initiative of Eurocopter, and forms part of the prime contractor’s obligation to maximise involvement by Australian entities in the $1.3bn project; an obligation of critical importance to Northern Territory businesses.
Tender evaluations for the estimated $1.3bn CSP Defence Integrated Distribution System contract are nearing completion. Announcement of the preferred tender for this national warehousing, distribution and maintenance repair contract, which has implications for the Northern Territory, is expected to be made before the end of this year. ADF units affected by the contract, such as the Joint Logistics Unit (North), will transition to the new arrangements in early 2003.
The economic impact of visits to Darwin by United States Navy ships varies, depending on ship type, length of stay and other intangibles such as length of time since their last port visit, but as a general guide the estimated value is $US250 000 per ship visit. Under current arrangements, four contracts support United States Navy ship visits to Port Darwin. These are: husbanding, including the provision of force protection measures; fresh fruit and vegetables - resupply of foodstuffs, including meats; morale, welfare and recreation; ship repair - maintenance, repair, overhaul and modification.
Consistent with its role in advancing the interests of local industry, my department has established a productive working relationship with the United States Navy’s key acquisition and support organisation in Singapore. This organisation, the United States Navy Regional Contracting Centre, is responsible for planning port visits and arranging repairs, maintenance and other support services for all US Navy assets in the Asia Pacific region, including United States Navy ships operating in, or transiting waters, between Hawaii in the Pacific Ocean and Diego Garcia in the Indian Ocean.
It is noteworthy that Darwin Ship Repair and Engineering has established master ship repair agreements with the US Navy, and all reports I receive are that the US Navy is more than happy with their performance. This is another example of a Territory company that has the runs on the board in doing business with the military.
I can advise the House that three companies have been shortlisted to tender for the supply of replacement patrol boats for the Royal Australian Navy under Project Sea 1444. The shortlisted tenderers are ADI, Defence Maritime Services partnering with Austal (DMS Austal), and Tenix. These companies were selected from the nine companies that submitted tenders to go to the next stage of the tender process on the basis that they were competitive and proposed to meet the Australian industry involvement targets for construction of 65% and in-service support, 90%. After evaluating two possible procurement options, private financing and direct purchase, the federal government has decided to directly purchase the boats at a cost of around $375m. ADI would construct the boats in Newcastle, DMS Austal and Tenix in Perth.
The Northern Territory, where the majority of new patrol boats are to be based, will benefit through commercial linkages with the prime contractor during construction and through-life logistics support of the replacement vessels. ADI, DMS Austal and Tenix will be invited to provide detailed tender proposals by the end of October. Defence expects to be in a position to recommend to the federal government a preferred tenderer by late this year, with a view to contract signing in early 2003, ensuring the replacement patrol boats will be ready for service in the second half of 2004. My department of DBIRD will work with the shortlisted tenderers to inform them of local industry capability in the provision of maintenance and through-life support for systems and equipment fitted to the new patrol boats.
In summary, the Defence presence here has been and remains a catalyst for significant growth and development in the Northern Territory service industries, housing, retail trade and tourism sectors. The Northern Territory is a growing area for Defence, both in skilled work force personnel and industry support. With Defence expenditure here of more than $550m during the financial year just ended, Defence is clearly one of our key economic drivers.
Close cooperation between the Northern Territory government, the ADF, visiting foreign Defence Forces, industry and the community is critical to ensuring the effective conduct and sustainment of Defence operations both here in Northern Australia and within the region.
Madam Speaker, I move that the Assembly take note of this statement.
Mr BURKE (Opposition Leader): Madam Speaker, I thank the minister for his detailed interesting statement, giving us an update on the position of some significant projects with regard to Defence in the Northern Territory. It is certainly a very important area of the Northern Territory economy. I guess the thing that immediately jumps to your mind about this type of statement - and I mean this as no criticism of the minister at all – is we talk a lot about the cooperation that exists between the Northern Territory government, officers of various departments, particularly Industry and Resource Development, and the way that Defence have integrated extremely well in the Northern Territory which, frankly, is a stand-out example to the rest of Australia and has been something that the Defence Department itself refers to in their own planning.
However, the thing that jumps out to me most importantly about this statement is that, when we talk about growing the Northern Territory economy and where the Territory will be in the future, the figures that you roll out with regard to Defence, are just enormous. In this statement this evening alone, the minister has pointed to, directly, $78m of federal government spending in this year alone, building on an enormous amount of money that has been spent in the past - $1bn in infrastructure, including Robertson Barracks. That does not even include the amount of money that Defence spends every day on other than infrastructure: the enormous contribution that those 14 000 people, either directly or indirectly, contribute to the economy of the Northern Territory.
New initiatives that are coming forward, such as Bradshaw Station - I am not sure if the minister gave a figure for the total development of Bradshaw …
Mr Henderson: $55m.
Mr BURKE: $55m in infrastructure alone for Bradshaw Station; $1.3bn for the armed reconnaissance helicopter project - and a large part of that particular project, including personnel, will be relocated to the Northern Territory; the Defence Integrated Distribution System. I am particularly interested that it has reached as far as it has in almost being decided who will provide that capability. I did not realise the Defence Department were anywhere near that progress, but I accept the minister has far better information than me. If they do go to tender at the end of the year, that will be quite an effort. I understood that Defence were quite distracted on other issues, not the least being overseas deployments that might put that particular project back some time. But the Defence Integrated Distribution Project is probably one of the most challenging outsourcing projects that Defence has ever involved itself in, but will also have direct impact on the Northern Territory - the way Defence attends to its logistic requirements in the Northern Territory and provides opportunities for the Territory to leverage off that particular outsourcing. As the minister said, an enormous project, $1.3bn Australia-wide in the helicopters. Also the Navy replacement patrol boats of $375m. I never totalled them up, but they are enormous amounts of money in anyone’s books.
Unfortunately, from the Territory perspective and from any government’s perspective, they work in close cooperation but, in many respects, outside of this monolithic organisation called Defence. When one considers how you work through that sort of organisation, one only has to refer to - and I am sure the minister has done it - read the comments of Lieutenant General Des Muller, who retired from Defence the other day. He was VCDF. He made some comments in that particular Bulletin article, which I am sure he did not think would ever make it into a Bulletin magazine. He pointed to just how hard it is to move that sort of organisation in getting real decision-making, real cultural change in how the organisation itself can become far more efficient in the way it does business, how it can become more efficient and effective in some of its purchasing objectives. That really is the challenge that faces the Northern Territory government: to be more than just someone who is cooperative, supportive, building relationships - but to really figure out how you get through that nexus and build on the enormous potential of Defence for the Northern Territory. That really is the challenge in this particular statement.
In many respects, minister, can I say to you that one of the first statements I made as a Lieutenant Colonel as Commanding Officer at 2nd Calvary Regiment when I spoke publicly - and I can tell you was carpeted by senior officers for some of the comments I made regarding how Defence was purchasing too much of its logistic requirements from down south and needed to look more to local infrastructure capability - but also as a politician, that Defence has done a lot in building on the capability of Northern Territory businesses still has a long way to go. In many respects, it is the Northern Territory government and how it focusses it efforts to support and encourage Defence, to find those projects that Territory firms can leverage off, and can provide a focus for that, which really provides a great challenge and opportunity for us in the future.
We talk a lot about Asian relations and trade in the Northern Territory. The CLP government spent an enormous about of money building close relationships with our South-East Asian neighbours and, as the minister and the Chief Minister have said, despite the good relationships that have been built on over many, many years, in terms of real outcomes and business opportunities, it has been problematic and some of those opportunities have been few.
The same challenge faces us regarding Defence. It seems to me that, for the Northern Territory economy, Defence is next to tourism, mining, and the large gas industries that can come to the Northern Territory, in how we leverage off this great Defence spending and build a greater Northern Territory. The Territory so far, over many years, has benefited economically from the Defence involvement with the Northern Territory. With massive build-ups in places such as Tindal in earlier years but, most importantly, the large build-up by the Army presence in the North that is now, according to the minister’s statement, built to about 14 000 personnel and their families.
Socially, I certainly am sure that in my electorate there are few community or sporting organisations that you go to, that do not have, in some shape or form, a Defence representative or Defence spouse there. They make an enormous social contribution to the Northern Territory and adverse reports of the military presence in the North are few and far between. On that note, it disturbed me that, in a couple of newspapers reports you read the title of ‘soldier’ being reported on people who have gone DUI a few times, and that sort of thing. Those are the little initiatives, I believe, where Defence Force people should not be singled out. We do not single out individual Territorians by their profession, and it is a bad sign if we start to look at the Defence Force personnel, in any shape or form, as somehow a society apart, that should be identified as different to the general Northern Territory community. They have made an enormous social commitment so far and will continue to do so. Certainly, more and more Defence personnel are retiring to the Northern Territory, are seeing the Northern Territory as the place they want to spend the rest of their lives after a Defence Force career, and that is a good thing for all of us.
Architecturally, I believe the Northern Territory has benefited enormously in Darwin alone. Palmerston has changed as a great satellite city, from a place that was generally derided when I arrived here. A lot of that change has come from the large amount of spending that the Defence Department did on good quality and very expensive Defence housing - housing that they felt appropriate for their families’ needs in the north, but also housing that set, in many respects, a new standard for local builders to achieve. Certainly, it is pretty well undisputed that that example led to greater innovations and better architectural styles than came through in the general housing product that was available for Territorians. So just in terms of those areas alone, they have made an enormous contribution, and will continue to do so.
We also live in the remotest parts of Australia and, as the minister pointed out, in every Defence white paper that has been produced - certainly as far back as 1984, 1987 - the defence of the north of Australia has been central in Defence Force thinking. Whilst there is a greater emphasis now on overseas deployment, that central thinking and Defence Force strategy will remain and, therefore, the importance of those forces in the north of Australia will be central to Defence’s decision-making process.
We also need to pause and consider that, whilst it is highly unlikely, in my view, it is possible that a large element of HQ 1 Brigade could be actually deployed on operational service to the Middle East and Iraq, and will be very much on the front line of the largest commitment of Australian forces overseas. We could be into a situation - we hope we will not be - not dissimilar to Vietnam in the early 1960s. That brigade needs the greatest support from Defence - the best support in training facilities, and the best support that can be given from the Territory population and its government.
In that regard, if we point to, say, a place like Bradshaw Station where large spending initiatives are to occur, it is not a good story that the LUA was just signed off the other day. It is good to see that it has finally been done, but that Indigenous Land Use Agreement was first negotiated - and I am sure my colleague, the member for Daly, will mention it - around about 1995, 1996. I wrote to minister Macfarlane on a number of occasions, urging the government to cease those negotiations and use its powers to acquire that land so that Bradshaw Station could be developed, so that we would not be in a situation whereby, at the end of 2002, we only have a bridge built on a training area on a property that was acquired many years ago and, frankly, should have been fully equipped for training by now. It is a sad story, in fact, that it has taken so long. I do not blame anyone for it, but it is something that I believe, when we look at the situation that our troops could be involved in, it would be a sad thing if their training opportunities have been diminished because of that slow down. But Bradshaw Station will be developed, I hope, to be a state-of-the-art training facility, not only for HQ 1 Brigade, but also for overseas forces that choose to train at Delamere and at Bradshaw in the future. That will be a great opportunity for Territory businesses to lever off all of the opportunities that will go with that large training area.
I have mentioned to the minister - I am not trying to urge you to do this – that there are a number of overseas trips that I hope you do, and when you do them, minister, I will certainly support them. If you get the opportunity to go to the United States in your position as Minister for Defence Support, you might get the opportunity to go to the National Training Centre in California and see the way that that training centre is organised, and try and picture something like that at Bradshaw Station - look at the enormous state-of-the-art technology that is in that training area, the training technology that modern forces require. That is the sort of technology that I believe should be built into Bradshaw. Certainly, that itself will provide great opportunities for Territorians.
The minister spoke about secretariat and financial support services to the AIDN in the Northern Territory. You did not outline how much money the government spends in that support. Again, I have always felt that we needed to lever up the amount of effort that was put into Defence support in the Department of Industries and Business. I make no criticism of the people who are involved in that organisation; I know that they do a tremendous job. But it really does need some horsepower to get into the higher echelons of Defence in Canberra - the sort of horsepower that we would rightly see in areas of the Office of Territory Development, with people who have particular expertise, who are very good lobbyists, who know how to work into that Defence system. That is what we need to have as an integral part of the Department of Industries and Business, to do whatever we can to leverage off the enormous spending potential that is in that whole Defence machinery.
The minister mentioned NORFORCE, a great organisation which, in many respects, sells itself because of the way it trains Aboriginal young leadership - as the minister said, people who are identified by the elders of their own community as future role models in those communities. Again, NORFORCE is just one organisation in the Army that argues by itself against competing interests, and competing jealousies, from various other organisations in the military for greater support from Army and Defence. Again, the Northern Territory government can be a great asset to try and push that whole argument of how we give NORFORCE greater capability to support the training and aspirations of young indigenous leadership who move their way through the NORFORCE hierarchy - and, perhaps, into the larger Defence system - as role models in their own community.
I know I made representations that there should be better mechanisms made to allow indigenous reserve service personnel to move into the regular Army. They should not be subjected, I believe, to the same conditions of service per se that applies to general entrants. They should be given greater opportunity as a recognition that, in many respects, their great value is in the local area from which they come. NORFORCE would argue that. It is the sort of thing that ministers in the government can aid those organisations to argue that case to Canberra.
Again, the amount of time reservists in NORFORCE spend in training, the amount of reserve training days they are provided with per year, I believe, can be expanded. And again, an organisation like NORFORCE can be assisted by government in that regard.
The armed recon helicopter project at Roberston Barracks is a great decision - not a decision that came easily to relocate that organisation from the RAAF Base Darwin, but certainly the practical and logical decision. The minister outlined clearly all of the logic behind the reasons for relocating that organisation to Robertson. But let us not underestimate the potential of that new organisation - a $1.3bn project in total for a state-of-the-art armed reconnaissance helicopter that would match it with anything available in the world, that will bring a level of technology in numbers available in the Northern Territory, that will all require maintenance and high-tech logistics support. How Northern Territory firms get access to that high-tech logistics support will require some real effort and impetus by government. I certainly hope the minister uses his influence to ensure that that happens.
There will be 400 personnel just for that recon helicopter unit alone. He said half of those will be married, with 120 to 150 dwellings required. Well, it does not take an Einstein to figure out that Carey Street will not accommodate them; that there will be married quarters required. Notwithstanding the fact that it is located at Roberston Barracks, Palmerston really has sufficient Defence personnel located there. It is no secret that Defence are looking to acquire property along Lee Point Road. It is a matter of negotiation between the Commonwealth government and the NT government that that land is released in stages to allow developers, including DHA, the opportunity to put in married quarters. There is a whole range of old married quarters in the northern suburbs that need to be sold off, and new married quarters provided. The acquisition of that Commonwealth land to allow that development to occur would be a major initiative and something that is well overdue. I hope the government - I am sure the government - is well and truly progressed in that regard.
I was impressed to hear in the ministerial statement that the intellectual property training with regard to helicopters is being conducted. I would like to know more about that; I think it is incredible that they are doing that. It really points to the fact that there is a genuine desire to get Northern Territory firms involved. Again, that will point to the fact that Northern Territory firms alone probably cannot do it; they will need to joint venture with national and international companies that have not only the capability but the security clearances to repair that type of equipment. I would have thought, in that regard, it really needs the minister to keep a very close eye on how that is developing; how we can leverage off the support for that sort of equipment. Because it is not only the maintenance of that equipment on that particular helicopter, it is the type of technology that that helicopter carries that is right throughout the South-East Asian region and might be available to Territory firms if they can get their foot in the door - not unlike the way Darwin Ship Repair has done it, with the licences it has in repair for American ships. It is not an easy process to become an accredited contractor for any American warship, and I am sure that those companies themselves would point to the laborious process they have had to go through to obtain that accreditation. That is the process that they need strong support to obtain, to get access to that intellectual property, so that they can get a cut of the maintenance contracts.
With regard to the Navy replacement patrol boats, I am not quite sure what the Defence thinking is at the moment, but my view would be that, unless it has changed, most, if not all, would be located in Darwin - some might remain in Cairns, but their logistics base will be primarily in Darwin. I hope for the new patrol boats - no matter who the tenderer is - they see Darwin as a prime location for their repair, or a great deal of that repair, and that the government is working hard with the companies that are working with those preferred tenderers to ensure that a great deal of that work comes to Darwin.
Thank you, minister, it was a good statement. I appreciate the detail you have provided. It gives us a good snapshot of where we are with the major projects with regards to Defence. I am sure that your department and you, yourself, are working hard to meet the challenges that Defence will continue to give Territorians and this government in the future.
Mr KIELY (Sanderson): Madam Speaker, tonight I support the statement on Defence delivered by the honourable minister.
My observations are very much along the same lines as the Leader of the Opposition, who touched on the amount of expenditure that was coming into the Territory because of the Defence build-up in the north. He mentioned that not even included in that figure was the salaries incomes that go to the service people and their families who make up the work force. Well, that figure is actually about $250m annually, that the service personnel contribute in their salaries to the Territory economy. It is for that reason that, I believe, small businesses are intrinsically involved in the day-to-day lives of this particular segment of our community. It is not only the businesses that service and support the Defence Forces’ complex array of equipment, it is more than that. It is also the services such as the local shopping centres, the service stations - indeed the services that are available to the wider community. They are sustained to a great degree by the presence of the Defence Force in the Territory.
This is just one of the reasons why I believe it is necessary for the wider community to have an understanding of the people who make up our Defence Force. It is important for a number of reasons, actually, and I will touch upon some of these in due course. It is important, I suggest, because these people come into our community from all corners of the continent, some with very little knowledge of the Territory. They generally come to our community with an expectation that they will be leaving in three, four or six years time. In the main, they do not come as people who are wanting to make a fresh start, but rather as people who are here to do a job and who want a reasonably good experience for themselves and their families, should their families accompany them.
The minister has made mention of a number of new initiatives that are being undertaken by Defence in coming years, and it is on one of these initiatives that I will focus in order to demonstrate to the Assembly the significant impact only one of these initiatives will have on the broader Top End communities of Darwin and Palmerston. Robertson Barracks near Palmerston is the home of HQ 1 Brigade. The HQ 1 Brigade is the Australian Army’s high readiness mechanised formation with excellent tactical mobility, a high level of endurance, hard-hitting fire power and sophisticated communications. It is capable of conducting mechanised operations in mid-intensity conventional warfare and peace operations with United Nations or coalition forces. As an adaptable and versatile formation, the brigade is also capable of conducting operations concentrating on peacekeeping. The brigade maintains the ability to operate in complex political or military situations throughout a wide range of terrains and environments, including urban and rural landscapes.
The 161 Reconnaissance Squadron, which is part of the HQ 1 Brigade, was raised at RAAF Base Amberley in 1965 as 161 Independent Reconnaissance Flight, and deployed the first Australian combat troops to South Vietnam. Today, the Squadron is based at RAAF Darwin, operating as part of the 1 Aviation Regiment to provide reconnaissance support to the HQ 1 Brigade. That squadron at RAAF Darwin is equipped with Bell 206 Kiowalight observation helicopters.
As part of the federal government’s program to strengthen its capabilities in the north, 1 Aviation Regiment will be relocating to Northern Territory from its base at Oakey, South Queensland. As well as the transfer of its logistical and technical support from South Queensland, 161 Reconnaissance Squadron will be transferring to Northern Territory from north Queensland. It is anticipated that, by late 2005, the regiment will have approximately 400 personnel and, as stated, half of these will be married or will be accompanied by partners. It is also planned for the Regiment to be equipped with 17 new French designed Tiger armed reconnaissance helicopters, and these will cost around $1bn. The Tiger will transform the Army’s ability to conduct tactical reconnaissance by day and night, provide vital capability to escort and protect the Blackhawk helicopters as they transport troops and supplies.
While some jobs in relation to servicing these helicopters may be available to the general population of Darwin and Palmerston, in all likelihood, given the nature of the equipment, the skills required will probably initially be sourced through specialists within the Australian Defence Forces, or will be purchased on a contract basis from the multi-national manufacturers.
However, that is only part of the story. Jobs will created in the building of on-base accommodation, for both the helicopters and for those whose job it is to keep them flying. Houses or units will have to be built, or existing properties leased to families and individuals who do not wish to live on base. Most certainly, the Defence build-up in the north brings a lot more than just additional equipment, and service men and women. With the advent of additional families, more jobs in the community are created. As an example a new leased addition on-base care centre located in Palmerston opened on 11 February this year. The Durack Children’s Centre caters for up to 60 children aged between 0 to 5 years and operates a 11 hour span from 6.30 am to 6.00 pm Monday to Friday. In all probability, additional places and family day care will be negotiated. Further opportunities for flexible irregular out-of-hours care where shift work requirements occur, will present further opportunities for people to obtain employment.
Apart from their contribution to the economy as consumers, 50% of the proposed new arrivals, as I stated, will be in the company of a partner or other member of their family. These partners will be in possession of skills and abilities that can probably be readily utilised by Territory firms. We all know that the Territory, at this time, is confronting the problem of a skilled work force for the emerging jobs being created by our hard work in bringing gas onshore, the Defence build-up itself and, of course, the rail project. Office jobs, jobs in engineering, drafting, and in electrical and mechanical fields - the whole gamut of jobs are now established and in our emerging industries. With the influx of these partners to ADF people into the work force, there is the potential to fill the gap while we train up our local residents.
These people will also contribute strongly to our school councils of schools where their children will be placed for the time they are located in the Top End. They will participate in community clubs, both as members and on the committees. They will join in the activities of the community and make friends with Top End residents. In short, these people who come to the Territory as part of their service to our nation will become part and parcel of our community - a very welcome part. I believe we as a community have a lot to value from these new arrivals within our community. The richness and diversity of views they bring with them enriches our own local culture immensely. I believe the individuals and the families who make up the great Australian Defence Force community contribute as much to the Top End in their own way as do those of us who have longer ties with this place.
I must say I am always pleased when people come to the Territory with their work, be they civilian or service people, elect to stay or return upon completion of their contract. I am sure that, of the 600 people who will be coming to live in Darwin and Palmerston as a result of the refurbishment and relocation of 1 Aviation Regiment, quite a number will end up themselves becoming long-term, hard-working and good citizens of our region.
I emphasise that Defence Force personnel are not just a part of our economy. Their economic input is important, but we must remember that they are very much members of our community. We should never treat these somewhat transient members of our community as cash cows. These people mean more to our community than just a steady stream of disposable income from fortnight to fortnight.
As we consult with the community on our social development strategy, which I know we are doing right now, we must make sure that the social needs and contributions of Defence Force people and their families are taken into account.
I would like now to touch upon one more of the major positive impacts of the relocation of 1 Aviation Regiment to Robertson Barracks. It is a consolidation of its squadron to the one place; that is, there will not be any, or at least minimal, military helicopter traffic over the northern suburbs of Darwin which presently happens from time to time, with, I believe 161 Squadron helicopters returning to RAAF Darwin. This is, indeed, good news for the residents of Wulagi, Anula and Northlakes. As the local member, I have made representations on constituents’ behalf in regard to both fixed and rotary wing aircraft overflying these suburbs. Whilst by no means an everyday occurrence, the times that this activity does happen are regarded as a nuisance by some of my constituents. It is, indeed, heartening news for these constituents that this type of activity will decrease rather than increase in the future.
This is not to say that Sanderson’s win is another electorate’s loss. A feature of Robertson Barracks is the forethought that went into planning for future expansion of the base. Part of the forward plan was to build an area for an aviation regiment, as well as to factor in appropriate flight paths. As we all know, approaching flight paths to RAAF Base Darwin are over residential areas. This will not be the case for Robertson Barracks. The proposed flight paths that will be utilised by 1 Aviation Regiment are such that they will not inflict additional noise pollution urban residents. On behalf of my constituents and those residents in Palmerston and Howard Springs, I thank the Defence Force for its far-sightedness on this matter.
Madam Speaker, I commend the minister’s statement to the House.
Mr MALEY (Goyder): Madam Speaker, the Australian Defence Force and the contribution it makes to the Northern Territory through its personnel is enormous, not only in terms of the money which is spent up here, but also from a social perspective as well. I concur with many of the comments made by the last speaker and the member for Brennan.
I am not going to go over all the things that were said. A lot of the things that I was going to say touched upon many of those matters, but some credit should be given to the enormous amount of work which our federal members are doing; namely David Tollner and Nigel Scullion, who have been battling for the Territory, to ensuring that the Defence commitment continues in the Northern Territory. As I said, the Defence contribution to the Territory is welcome and should be encouraged, and the CLP will work closely with the government to do all that it can to help facilitate that continued commitment and continued development.
The acquisition of the helicopters which we have heard about - the particulars are contained at page 10 of the ministerial statement - is certainly good news. Whilst I have heard about it, and there has been a lot of talk, this is probably the most detail which has come to me, and it is good to see that this type of detail is being provided to parliament and the wider community in the Northern Territory. 1 Aviation Regiment, some 400 of all ranks, half of whom are married with kids, will be a significant contribution to the Northern Territory - to Palmerston and the surrounding areas. There are a lot of Defence Force personnel who are now really making the Territory their home. They are settling in so well that there are many people buying rural blocks - five and 10 acre blocks in the Howard Springs, Humpty Doo and Berrimah regions. This is fantastic.
The ready reserve is something which was also touched upon in the statement - the contribution which the Australian Defence Force makes to the training of many of our indigenous young people. There are lots of indigenous people, particularly some of the guys I know from school who have grown up in town, who really appreciate the opportunity to get out bush and learn some of the skills which have been lost in recent times.
The construction work which the Defence Force brings to the Northern Territory is significant, there is no doubt about that. Since Cyclone Tracy, the construction industry really has been the barometer of the strength of the Northern Territory economy. The Defence Housing Authority’s investment in the Northern Territory, the Territory families and the soldiers, and the solid type of people they are, should be commended.
There are links now between the Chamber of Commerce and Industry other Defence industry support groups. There are some excellent conduits between local companies, it seems, and the right people in the right departments who are in charge of administering those sometimes complicated contracts. They are certainly lucrative from a small business and industry perspective.
With the establishment of such a significant contingent of Defence personnel and infrastructure in the Northern Territory comes the opportunity for the Territory to host more significant Defence exercises, all of which are welcome. As the Territory is, of course, only a small economy, such exercises make a significant contribution and have a real effect, and inject a large sum of money, over short periods of time, into a fragile Territory economy.
On a more general observation, I was recently playing a few social games of rugby union and there were a number of Defence Force personnel - when they are in town and not on exercise – who come down to training for the mighty Humpty Doo Swamp Dogs. I must say they all exhibit a real can-do attitude. They are a delightful group of young men, and it is a real pleasure to have them along at our club.
A member: The Swampies.
Mr MALEY: The Swampies, indeed. In fact, this can-do attitude actually spreads, and you will have these guys turning up at barbecues, they organise functions, and they are really quite proactive.
The CLP can, quite rightly, take pride in its role in developing a strong relationship, which it has helped forge between Defence and the local industry in the Northern Territory. I can assure you, the CLP will continue to work hard in the future for the benefit of all Territorians which, of course, includes those who are members of the Australian Defence Force. The member for Brennan made an excellent point: people who happen to be employed by the Australian Defence Force are Territorians first and foremost, and they will, more and more, cease to be put in a separate category of Defence personnel. They are Territorians and, indeed, that is something which is one of the Northern Territory’s greatest strength; the fact that we are multicultural. Whether you are of indigenous, European or Asian descent, if you work for the Defence Force, or if you live in a remote community, then we all get on well together. We are Territorians first, and it is a real example of enhancing the richness off the Territory and the Territory economy.
Ms LAWRIE (Karama): Madam Speaker, this evening I commend the ministerial statement provided to this House today by the Minister for Defence Support, Hon Paul Henderson. This, indeed, is a most important statement in the context …
Dr LIM: A point of order, Madam Speaker! The opposition continues to use the name of the member rather than seat, and has been doing this for quite some time.
Madam SPEAKER: Yes, member for Karama, refer to the member’s portfolio …
Dr BURNS: A point of order, Madam Speaker! We are not the opposition, we are the government.
Madam SPEAKER: It does not matter if you are government, you do not use people’s personal Christian and surname, is what the point of order is; you use the title.
Ms LAWRIE: I did use the title, Madam Speaker. I said the Minister for Defence Support.
Madam SPEAKER: I think you also used his …
Ms LAWRIE: That is right.
Madam SPEAKER: Just remember that in future.
Ms LAWRIE: Madam Speaker, this evening I commend the ministerial statement provided to this House tonight by the Minister for Defence Support. This, indeed, is a most important statement in the context of the Northern Territory’s social and economic fabric.
My interest in Defence stems from the acknowledgement that Defence personnel live in my electorate, and from a personal understanding and knowledge of the tremendous effort that our Defence personnel undertake daily to serve our nation and defend our northern shores.
My first dramatic contact with the critical role Defence personnel can play in our society came in the tragic aftermath of Cyclone Tracy, Christmas time 1974. As an eight-year-old survivor of that disaster, I witnessed the Defence personnel of Darwin set aside their own personal family needs and rally immediately to the task of serving the survivors of Tracy. Their response was swift, their commitment unswerving. They were very quickly joined by personnel from throughout Australia, and organised an orderly evacuation, with many Territorians being flown out on RAAF Hercules. They also supplied crucial food, water and medicine.
Defence personnel, be they Army, Navy or RAAF, set about the dangerous and difficult task of clearing roads so that people could safely move around our city and commence the awesome task of reconstructing our lives and our community. It was Navy personnel who worked shoulder to shoulder with my family to clear our block of dangerous debris. I stood as a child and watched as Defence choppers flew in and quickly cleared Nightcliff Football Oval, ferrying personnel and essential items in and out of the community of Nightcliff and surrounding suburbs.
My father spoke to me of how the Defence personnel had respected our families needs in how they cleared our block. Despite disease concerns - in hindsight unfounded - they agreed to allow a few centimetres of water to remain in our pool after pulling a substantial amount of our house out of the pool. That care and understanding meant our pool did not pop out of the ground, as had happened to other pools in the suburb that had been completely drained.
I saw the Navy ships in Darwin Harbour providing shelter to locals, giving all-important rest and recreation as people worked tirelessly to rebuild their homes and, indeed, their lives. They importantly lifted the spirits of locals and provided the fun times among the hardship. I believe we are indebted to our Defence personnel.
A more recent example of their tremendous endeavours and importance during an emergency was the Katherine floods. I have spoken to reservists who had lost their own homes in the floods, but worked around the clock to assist Katherine residents rather than tend to their own needs.
With this history, perhaps it was not surprising that my sister, Dianne, joined the Navy as a teenager and has already committed 21 years of service to our nation, rising through the sailor ranks to seniority of Warrant Officer and receiving the significant recognition of exceptional service by being awarded the Conspicuous Service Medal - no mean feat for a single mother in the services. During these 21 years, I have gained a significant insight into the sacrifices made by Defence personnel to serve their nation and, ultimately, protect our borders. Defence personnel are often on call and are posted wherever their service requires. This results in continual removal from their natural community and, with each posting, they must find the basic support networks required to exist. I refer to child-care centres, schools, shops - those everyday services that many of us take for granted. Defence families are often separated for substantial periods of time, with three months separation not seen as extraordinary in the services.
During periods of separation, Defence personnel often serve in harsh conditions, from remote inhospitable terrain on land, to our seas and oceans, often beyond communication with their loved ones. They miss loved ones births, deaths and marriages. This presents unique problems for the personnel and their families. Imagine being a parent of young children, in a base far from your own family support in a city still strange, while your partner leaves for weeks or, indeed, months at a time during an exercise. It is to the families of Defence personnel that I believe our government can focus its support.
How appropriate that the portfolio has a title of Defence Support. We know Defence falls quite reasonably under Commonwealth jurisdiction and that the Commonwealth is clearly focussed on moving its Defence resources north. I welcome the resources outlined in this ministerial statement that the Commonwealth has invested, and is continuing to invest into this movement north and, indeed, the substantial flow-on economic opportunities that this provides to small and medium sized Territory businesses.
I have spoken to the crucial Australian Industry Defence Network, Northern Territory Chair, Mark Smith, a successful business man who lives in my electorate. Mr Smith is Managing Director of North Australia Radio and Electronic Services. He is highly experienced and well positioned to understand the economic opportunities that such massive Defence commitments provide to local business people and, therefore, our wider community.
Our Labor government shares the desire to maximise the economic opportunities to Territorians, with a shift north that generates billions of dollars of spending in the Territory. I congratulate the minister for ensuring that his department provides secretariat and financial support to the Australian Industry Defence Network.
I have quite deliberately dedicated some of my time as the member for Karama to supporting local business people in their efforts to strengthen Defence allied industry. Along with the Chief Minister and Minister for Defence Support, in July I attended the official opening at Palmerston of the General Motors Defence Australia Darwin Logistics centre and was given an extensive explanation of the facility and how it has evolved, and the potential for further expansion. I am delighted to say that it was the hard work put in by a Territorian and, indeed, I commend specifically Richard Johnston for his persistent effort to ensure that the contract landed here rather than South Australia.
I have also been out on a patrol boat and experienced first hand the manoeuvrability and simulated exercise of border protection. What strikes me about each interaction I have had with Defence personnel is also their enjoyment of living in the Territory. A few weeks ago, I was chatting to young RAAF men based at Tindal. They had hailed from inland small country towns down south and said they loved working at Tindal and enjoyed both Katherine and Darwin, saying that it suited their way of life. With an aversion to big cities, these country lads are enjoying the country town style of our friendliness and access to recreation they knew and enjoyed as boys - shooting and fishing to name just a couple.
I have also had the pleasure of visiting Robertson Barracks as a representative of the Chief Minister, and I commend Brigadier Damien Roche for his fine command. I found the Army personnel quite justly proud of their history and efforts in East Timor. Indeed, they have a continued presence there as peacekeepers and have served our nation with distinction.
I know that the shift of Defence personnel north has brought significant social and economic benefits and I also want to note elements of the ADF here that I believe are innovative and exciting. In particular, I wish to praise the work undertaken by NORFORCE, the Army’s northern surveillance unit that was launched in 1980. Under the previous command of the visionary Lieutenant Colonel Martin Glass, NORFORCE not only covered the massive area of surveillance of the Northern Territory and the Kimberley region of Western Australia, but NORFORCE was a groundbreaker and innovative during these years because, in terms of indigenous employment they have delivered where many government departments have shown inertia in the past, and are only now shaking off that inertia.
NORFORCE went out and actively liaised with community elders and recruited young, fit and previously ignored and bored indigenous men. Today, indigenous troops make up about 250 of the 550 NORFORCE personnel. This impressive employment record was achieved by adopting an innovative cadetship program under the tutelage of Lieutenant Colonel Glass’ engagement with local communities. The cadetship program was adopted from a similar Canadian model introduced and adapted to the Territory by Police Superintendent Graham Waite.
This crucial improvement of surveillance, delivered through actual employment of indigenous Territorians, is still a driving focus of the current NORFORCE Commanding Officer, Lieutenant Colonel Roger Bryett who, I have heard, is continuing to respect and advance the role of our remote indigenous communities in our security. I thank him and both the permanent and reservists NORFORCE personnel, for their tremendous work throughout the Territory.
Complementing this land border surveillance work of NORFORCE is the Defence initiative of basing the Patrol Boat Force element group, commanded now by Captain Frank Kresse, at Larrakeyah. The Patrol Boat Force now has 10 patrol boats based in Darwin. They have been at the forefront of border protection efforts and have peacefully brought in illegal fishermen and immigrants. They are operational and at the cutting edge of our defence. Their work is not simulations through exercises; their work is very real. I commend their efforts to protect the Territory.
I want to thank Brigadier Mike Silverstone, Commander of Northern Command at Larrakeyah. His job is extremely difficult and demanding but executed as a true gentleman and, I believe, an inspirational leader. I have found him to be always very hospitable and patient in providing fair and honest answers to my questions.
We heard from the Minister for Defence Support of Defence expenditure here of more than $550m in the past financial year. Quite deliberately, I have chosen not to focus on the economic drivers but, instead, discuss the social drivers that I believe have strengthened and improved the fabric of the Territory’s society. In short, the Labor government does not only value the money that defence has quite undeniably pumped into our society but, above all, we value the people who come here and share our place in this great nation.
Tonight I hope I have paid some honour to the sacrifices our Defence personnel and their families make daily to meet our defence needs. Without requiring the call to action, they are already going where we need them to and, when an emergency does arise, they are the rock that we cling to. I pledge to continue to support the Minister for Defence support in his efforts to improve our society’s support for the ADF.
Mr BALDWIN (Daly): Madam Speaker, I have small contribution to this statement. I will say straight up it is a very good statement, one that is similar to others that have been delivered in this House previously by both myself and other ministers. It is a great update on those statements, and we should keep providing that information into this arena, so that we can all keep updated on this very important sector of the Northern Territory community because the defence industry, as we all know and, as the minister stated throughout his statement, is very important. We have heard a lot of words to that effect in this debate on the statement tonight: $550m worth of spending per annum in the last sector, anyway, and that is down somewhat from other years. However, that is quite reasonable given that those other years included massive build-up expenditure on places like Robertson Barracks. Certainly, $0.5bn into the economy is very, very important.
It is also important, as we heard, to the social fabric of the Northern Territory: 14 000-odd people, 2500 dwellings, and right across all sectors of the community. They involve themselves in all sectors, obviously with wives, families going to schools, and the partners of these Defence personnel having their own jobs. They bring with them new ideals. They also bring with them new needs and requests as well, which is not a bad thing for the Northern Territory, I would suggest, and keeps us on our toes.
It is a great thing to note that many of the Defence Force personnel - and I know it is a Katherine experience particularly - opt to get out of the services after they have done a term or two in places like Katherine and, indeed, Darwin, because they just love the lifestyle when they get up here. I think the member for Karama mentioned these chaps, as did the member for Goyder about how they like to involve themselves in local sport and lifestyle with participation in things like fishing and shooting. We see a great many people in Katherine, opting out of the Defence Force to take up residence permanently in Katherine and get into their own businesses. That is a great thing also, of course, for the development of the Territory.
On the economy side of things, obviously housing and the housing needs of the Defence Force personnel - not only on barracks, but off barracks - is a great stimulus to the construction industry. It has been for a long time. Obviously, it slumps off when the Defence Force drivers start to stabilise. However, we are now looking at another expansion with the coming of the 1 Aviation Regiment, and some 150 houses needed there for off-base. That is a great thing.
Carey Street, as the minister has mentioned in his statement, is a fantastic development. It is the first time that Defence housing has undertaken that sort of development, being a stand-alone high rise development, and the first time that they have actually gone into a development where they build for their own needs and also for private sale, which caused a fair bit of angst in the community in Darwin amongst the construction industry. There was a Senate inquiry committee - as they go through these processes of expenditure of Defence monies - had a look at all of that. In the end, they gave the Defence Housing Authority the go ahead, and we see that now rising – well, more than rising out of the ground, it is two parts completed on Carey Street. That is a great move forward for DHA, but also for the Darwin inner city community. It will bring more people into Darwin, and make no mistake, they have disposable income. Hopefully, that will do positive things for the inner city part of Darwin. It will also give a chance for investors to take up units in a very prestigious site, and I am sure that we will see those units taken up.
The issue of more land is always a problem that government needs to stay ahead of for Defence housing, and the Lee Point land has been mentioned by the Leader of the Opposition. That is something that needs to be pressed ahead with, with great firmness. I know, in my time, as both Defence Support minister, and Lands minister, we had to keep banging on the doors and keep using our federal contacts to move that along. The time lines for the moving of the Defence facilities out at Lee Point keeps seeming to get dropped back and deferred, but there is land available out there that they could actually come to an agreement on almost immediately. However, you need to be persistent and move ahead with that, and keep the pressure on. It is very important that we secure that land. The government has a first option on that land, so that needs to be waved in front of Commonwealth bureaucrats in the Defence Department all the time. The pressure needs to be kept on to secure that land for the future housing and recreational needs of the Northern Territory. Of course, native title is an issue in that area as well, and that needs to be addressed in parallel.
I can say that I am very proud of the fact that I was a Defence Support Minister in my time as minister in the government. It led to a great many experiences in that area, and a great many contacts, and I will get to the contacts later. I am also very proud that the CLP government was the first government in any Australian jurisdiction other than Commonwealth to have a Defence Support Minister. It used to always raise the eyebrows of other ministers or oppositions around Australia, because they always asked what was the role of a Defence Support Minister. Obviously, it is nothing to do with the strategic defence of the country because that is a Commonwealth role, but it has everything to do with securing business for Northern Territory local businesses of Defence expenditure. Also, on the other side of it, with the Defence build-up in the north now having been undertaken, to help integrate Defence families into the Northern Territory community as much as possible. I believe we have been outstandingly successful on that point.
People who have other experiences around Australia, can tell you about all sorts of issues and problems with Defence facilities in their area, social and otherwise. I do not believe we have had any of those problems here in the Northern Territory, and that is because of the relationship that we built up - and now the present government is carrying on with a responsible minister for this area in the portfolio line-up – and also a Defence Support Unit within the department structure. Those people have done a fantastic job over the last number of years, in helping to settle personnel who came into the Northern Territory community with the Defence build-up and also, obviously, making sure that Territory businesses have the best possible advantage in picking up business in that Defence expenditure. I would like to congratulate all of those people who have been involved in that Defence Support Unit for the great work that they have done, and continue to do. I am sure that, as the Leader of the Opposition has already outlined tonight, that is an area that we have to make sure is never under-resourced because of the very important contribution that Defence makes to the Northern Territory.
The minister makes mention of GM Defence coming to the Northern Territory. That is the type of initiative that is great for the Northern Territory. The GM company has been looking at the Northern Territory for quite some years, and it was with the assistance of people in the Defence Support Unit within the departments, as well as others like AIDN-NT, that have convinced them that the capability is here. Really, that is the thrust of where we have to head now, and it is the same with the helicopters that are now coming to the Northern Territory. We have to encourage, entice, convince all of those maintenance and supply contractors who are based down south because that is where the major components of the military machine were based, that they now need to come north because they are thousands of miles away form their service commitments. It is a great comfort to see that GM have made the commitment after quite a few years of investigation and talks. I was happy to meet with them when I was minister. They are now here. They started off with just a few employees; that has already increased. I am sure you will see their facility increase accordingly as they settle into the Northern Territory.
They bring with them, obviously, corporate and market grunt, and that alone will attract others who are in similar businesses to them to also involve themselves here in the Northern Territory. Certainly, that will then encourage and enhance other local businesses, Territory businesses, to be involved in Defence work. They obviously bring with them a lot of new talents to pass on to our businesses.
As I said, one of the challenges is to convince the suppliers and the maintenance contractors of the new Tiger helicopters that are going to Robertson Barracks - whenever they are sorted out - to also set up similar facilities in the north because all of these machines these days are in components, where they have spare components on the shelf. So far, the experience when something breaks down - whether it is an engine or a turbine out of a helicopter – is they pull that out and send it south to have it fixed or tested or whatever. It would be a great day to see that all those components can be looked at with the expertise up here locally, rather than having to worry about transporting them a long way away, with all of the logistical problems that go with that.
There is obviously lots of other potential with those armoured helicopters coming here. If you combine the needs and requirements that they will have, with our growing oil and gas fields and the servicing that they require through helicopter transport, obviously there is a lot of synergies that can be worked on there. I am sure the minister is looking at some of those things.
The same can be said about shipping, whether it is our locally-based patrol boats or the visiting Defence shipping that comes in to Darwin Harbour, which is on the increase over the last few years and I am sure will continue to increase. They bring with them all sorts of opportunities in maintenance and repairs. The minister has outlined those involved in that - the supply to those ships, the recreational needs of the officers and the personnel on those ships, the local tourism opportunities, and the other local business opportunities. The expenditure that they bring with them into the local economy every time a ship visits is just extraordinary. I know from my experiences in meeting with quite a number of the US commanders of those ships and fleets that have come into Darwin, that they just love Darwin. They love it because of its friendliness, its atmosphere and its relaxed attitude, and they also know now they can get the service. That says a lot for our community and our businesses. I have also had very high level US Defence personnel say that Darwin is a very strategic visiting port for US ships when they are operating within this Asian region, as they move from the Pacific towards the east.
I look forward to the awarding of the contracts for the supply of those replacement patrol boats. Those short-listed contractors are certainly on the ball. I know they have all done their homework in the Darwin area. I met with a number of them when I was minister and gave them the heads up of what is available in Darwin and what they should be looking for. It will be a great thing when those contracts are awarded, because I believe that there will be flow-on benefits for Darwin businesses. I appreciate the work that AIDN-NT and the Defence Support Unit has had in the lead-up to the final part of that contract being awarded.
On the personnel side, I can say that one of the other great benefits that has come out of the Defence build up, is the number of people we have had up here - and it is not really recognised, but it is the enormous talent that we get up here right across the disciplines of the Defence Forces from the lowest ranks right through to the highest. A lot of them are transferred on; they do not stay here. Some of them do not want to stay here. But they do transfer on, quite a lot of them, as I said. Quite a few stay here, but those who do transfer on, I believe take with them a good message about the Northern Territory, and they pass that on to their colleagues and families and family networks down south. That augers well for the Northern Territory as well.
That is particularly relevant when we look at the higher level officers that have been a part of Defence in the north, who go on to have significant influence in the whole Defence make-up and the strategic direction of Defence. They speak up for Darwin and for the Northern Territory, I believe, in great accolades. They do have a lot of influence when it comes to strategic matters, matters such as the white paper that the Northern Territory government contributed to in 2000-01, that has been mentioned in here.
Whether it is base commanders who have been at Tindal - such as Group Captain Brent Crowhurst who did such a fantastic job in the Katherine floods in assisting the people of Katherine - who go on to other things, or whether it is the commanding officers of Headquarters Northern Command, going back to Brigadier Chris Roberts, followed on then by Commodore Geoff Smith who went on to become Rear Admiral Geoff Smith. He was then in line, just recently, to become Chief of the Navy. Unfortunately, he was one of two who was put up for that job and he was overlooked, which means that he is at the end of the line, basically, so he goes out of the service. But they certainly take with them a lot of knowledge about the Northern Territory.
Following on from him was Commodore Mark Bonzer. When Geoff Smith was elevated to Rear Admiral, Mark Bonzer was commanding a ship going towards the east coast, and he was literally told to turn right, steam into Darwin, get off at Darwin Wharf and his new promotion was Commander, Northern Command. I remember he turned up to a function on the green out here, that night. It was virtually the first night he stepped ashore, and he still did not have his land legs. He basically said: ‘Where am I and what am I doing?’. He went on to do great things for the Northern Territory and Defence Forces up here. I believe he now has moved on to be a Rear Admiral so he takes with him …
Madam SPEAKER: Member for Daly, I believe your time has expired.
Mr BALDWIN: Has it? Already? I was going to be quick.
Dr LIM: Madam Speaker, I move for an extension of time to allow the member to complete his remarks.
Motion agreed to.
Mr Henderson: Hurry up, Tim.
Mr BALDWIN: What, you do not think this is important?
Members interjecting.
Madam SPEAKER: Order! Member for Daly, you have been given an extension.
Mr BALDWIN: Madam Speaker, I am sure you think it is important. So, all those people, are one of the great intangible benefits that has come from the Defence build up here in the Northern Territory, and I congratulate all of them.
Training facilities have been mentioned, in particular Bradshaw, and they are very significant in the whole scheme of things. The armoured personnel have been using McKinlay. McKinlay is not a very good training area. It is only good in the Dry season; it is on very sensitive soils. Bradshaw has been the place that the armoured division has been looking to go. Finally, soon, they will be able to go there. There are other training possibilities. I know Defence Forces, in conjunction with the US, is looking at places for amphibious training. They have talked to some of the indigenous communities, in fact, in your electorate, in recent times, and that may be a possibility.
Ms Lawrie: The member for Arafura.
Mr BALDWIN: The other area they have been looking to develop is a desert training area, so that when it is wet up here they can continue with their training. That would be a great opportunity for some of the areas in the south of the Northern Territory. However, once again, it would have to be suitable in soil sensitivity and that sort of thing. Bradshaw is going to be a great training area and bring with it a lot of potential. It is 8500 km2 and, as has been pointed out, with the bridge over the Victoria River, provides about 70 km of river frontage to that training area, not including the Fitzmaurice River on the northern side. I congratulate Steelcom for doing such a great job on that bridge, and for receiving awards, too, for the design and construction. It looks like we are finally under way on that project.
It is a shame that the $55m that the Commonwealth had for the development of infrastructure on Bradshaw has been there for about five or six years, and has been rolling over every budget year from that time, waiting for the agreement to be done through the Indigenous Land Use Agreement. They could have taken the road of using their own legislation and Commonwealth powers to go for acquisition. They chose not to, and that has caused the delay. The minister, in closing debate, may want to provide some of the details of what that land use agreement contains.
One of the things that was always on the board, and the people who use that area for recreational fishing, including indigenous people are very keen to know is whether it still includes the use of land. There was going to be, upstream of the bridge, along the bank of the Victoria River for some couple of kilometres, an area set aside for day use visitation by the public. That is something everybody is keen to know whether or not still exists.
So, that will be a great development when they start to spend their $55m, and a great facility. There is a lot of potential in that Bradshaw area with all of its escarpment and river flats, if you combine it with Delamere, a very high-tech bombing range out of Tindal and Darwin. There will be massive potential for training other offshore nation troops in that area as well, and I know that is being looked at a very strategic level also.
To wind up, because everybody is getting a little impatient, I would like to mention a couple of other things. The cadet program that NORFORCE has started is a great program. NORFORCE is in the tradition of the Knackeroos, which it was based on. NORFORCE is only a new name, it is not a new concept. The Knackeroos were the first ones during World War II, Curtin’s Cowboys, and there is a monument above Timber Creek. Just in case you are interested, if you are ever in Timber Creek, go up on the lookout and have a look at the monument to the Knackeroos. The cadet program that has been instigated now in quite a number of Aboriginal communities, including Port Keats, will be a great thing as well that will complement the NORFORCE program.
Could I also say, in closing, I pay my congratulations also to Brigadier Mike Silverstone for the great job that he has done in his role as Commander of Northern Command. Also to Barry Coulter for his great work in being the NT Coordinator of the Defence Industry Training Course, which was delivered to Territorians and other Australians - a great insight into the benefits that can come from the defence industry.
I commend the minister for his statement.
Mr BONSON (Millner): Madam Speaker, tonight I support the comprehensive statement on Defence in the Territory that was delivered by the honourable minister.
The contribution Defence makes to the Northern Territory economy should never be underestimated. I am not too proud to say that, until recently getting elected, I must admit I was quite unaware of the extensive amount of money being spent by the Defence Force in the Northern Territory. Certainly, with the RAAF Base inside my electorate, I have had a very quick learning curve and have found out that, indeed, they do contribute significantly, socially and economically. That has been commented on tonight by many members of this House.
As the minister has noted, the Northern Territory industry such as housing, retail trade and tourism have all benefited substantially from the increased Defence presence here, helping to broaden the base of our economy. I know from my involvement with Defence personnel and families in my electorate, that they are very interested in Territory lifestyles. They also see it as an opportunity to meet new people and get involved with different cultures and, of course, take advantage of the fishing and shooting, as mentioned by the member for Goyder and other members in this House tonight.
I take this opportunity to detail some of the projects which will be delivered for Defence by Territory companies this financial year, a number of which will be delivered in my electorate. In so doing, I note that Defence is a shared responsibility. It is true that Defence does rely on local businesses to provide infrastructure and support services for its operational personnel. This year, an additional $78m of expenditure on infrastructure works in the Northern Territory will bring new business and employment opportunities on several projects.
The Bradshaw field training area infrastructure works at Timber Creek, is worth approximately $27m. I will be working to make sure that the indigenous people living in the Timber Creek area get the maximum opportunity to participate in this construction phase and the subsequent ongoing maintenance phase of this significant project. I know it is a push in many remote communities, and also urban communities, that local indigenous persons are being trained in such infrastructure. This is a great idea and it adds to the local economies. It is pleasing to hear from the minister that the last impediment to the project has been resolved and that it is likely to commence next month.
At the RAAF Base, Darwin, there will be development of operational facilities, a project worth $1m. Also at the RAAF Base Darwin, base redevelopment worth $3.6m; the Darwin married quarters electrical upgrade worth $2.6m; and Darwin vehicle shelters worth $3m. These projects are all work and opportunity for Northern Territory companies, and I know that the people who live in Millner who are involved in the construction industry, and others who supply service to firms, are keen to be a part of it.
I would like to briefly touch on the significance of NORFORCE, not only for our defence, but also the strong and positive influence on the young indigenous people living in communities across the Top End, who look up to NORFORCE members as great role models, giving them something to aspire to. Actually, in the past few months I have had the opportunity to speak to members of NORFORCE about their experiences in remote areas. I know they get a real positive buzz from the effect that they have on remote community indigenous youth. They report back that it is very positive and they feel that they are looked at by these remote communities as being role models. As many people would know, in remote areas role models are something that we should be promoting and putting up something to aim for. Possibly, NORFORCE will be offering a career path for indigenous youth and I will certainly be interested in expanding this role.
Tonight we have had the opportunity to listen to many members talk about their experiences. In particular, I thought the member for Karama highlighted some of the special roles that the Defence Force families have played over the history of the Northern Territory. I, too, have stories about Cyclone Tracy and the evacuation and efforts that those Defence Force families put in. Certainly, there are many local families who owe a great debt, in particular regarding the evacuation and the clean-up.
I also would like to briefly comment that I had the opportunity to attend the 100th anniversary at Robertson Barracks of 5/7 RAR. It was a fantastic cocktail party and everyone out there was very hospitable and very interested in my life and what I was about. I was amazed to listen to comments that they thought this was the most fantastic place to come as they were accepted in the community with open arms. They actually mentioned that, in many other communities, they were not shunned but certainly not accepted as well as they were in Darwin. They were very pleasantly surprised and very appreciative of the Darwin and Territory welcome that we all know and love.
Madam Speaker, I commend the ministers’ statement on Defence support to the House.
Mr HENDERSON (Defence Support): Madam Speaker, I thank all members for very fulsome contributions on this statement tonight. It was a detailed statement to bring members of this House and the Territory public up to date on what was happening and in the pipe line for the Defence Force - contributions not only to our economy but also to the social fabric of our society. I am not going to go through speakers one by one this evening, but the contributions stand on the public record. It just goes to show, as I said in Question Time today, that the support for the ADF build-up here in the Northern Territory is absolutely totally bipartisan. As the Leader of the Opposition said, a real role model for integration of Defence Force personnel and their families in a community which is second to none in Australia.
To sum up, much of the statement I made was focussed on the economic contribution that ADF personnel and infrastructure developments make to our economy. Also, to pick up on members’ comments, a huge commitment and contribution to the social fabric of our community both in urban and rural areas. That has certainly been well put on the public record tonight.
I pay tribute to ADF personnel and their families on their commitment to serving our nation, particularly as we are in very unstable global environment at the moment. They have our best wishes and all of our confidence in whatever they may be called on to do in the near future. As a government, we will continue to work with the ADF personnel and their families to support their vital strategic presence here in the Northern Territory. They are part of our community and a large part of our shared future.
Madam Speaker, I move that the statement be noted.
Motion agreed to; statement noted.
ADJOURNMENT
Ms MARTIN (Chief Minister): Madam Speaker, I move that the Assembly do now adjourn.
Madam SPEAKER: Are you sure you want to do this at five minutes to midnight, member for Johnston?
Dr BURNS (Johnston): It is fairly short, Madam Speaker, and it might be interesting to some. It is interesting to me.
I report on travel undertaken under the RTD to Brisbane to attend and deliver a paper at a conference hosted by the Brisbane Labour History Association. The conference was held at the University of Queensland on 7 and 8 September, and the focus of this conference was the social protest movements, and Labour movement in Brisbane during the 1960s and 1970s. These movements arose in the context of political and social oppression during the Bjelke-Petersen government, which was also subsequently shown to be corrupt by the Fitzgerald inquiry. I did say a little in my maiden speech about this, and I will just quote selectively.
- As we all know from the Fitzgerald inquiry, he …
… was a populist leader who had the support of senior public servants, many establishment figures,
cronies in the police force, and the media. Anyone who stood against him was vilified and oppressed,
sometimes by force.
It was quite interesting at this conference to hear some of the stories of people who were severely beaten by police at that time, some who were terrorised by police, including the notorious Don ‘Shady’ Lane who was a member of the special branch. Some of you might know that he subsequently became a member of parliament in Queensland for the Liberal Party, jumped ship to the National Party and was subsequently shown to be corrupt and spent some time in gaol. So there is a bit of poetic justice there. There were some horrific stories of people having guns put to their head. It was not a very nice time at all, so I am not really overstating the case to say that some people were vilified, oppressed, sometimes by force.
However, there were some people of intellect, courage and integrity who stood against Joh Bjelke-Petersen and his excesses, and I will mention some of these people a little later. It was particularly true when Joh Bjelke-Petersen declared a state of emergency during the 1970 Springbok tour. There were some pictures shown at this conference of a barbed wire barricade - it would have been about 15 feet high - built around the Brisbane Exhibition Ground. There was a track between there and where they played and it was full of policemen. So all of this for just one football game to support the Springbok tour and, I guess, apartheid.
In the long term, as I said in my maiden speech, the corruption of the Petersen government was exposed. The moral bankruptcy exemplified by support for the apartheid regime in South Africa probably does not even bear comment today, but what is worth remembering is the courage of those who stood up for what was right no matter what the cost. I am proud to be counted amongst those people. It was in this context I describe the genesis of my own contemporary political beliefs, I suppose.
So, far from being a purely retrospective or nostalgic get together, this conference drew heavily on history to enable individuals to constructively address contemporary issues. I might add that one of the contemporary issues that was prominent was the imminent prospect of war with Iraq, an issue of vital interest to all Australians. Some of the sessions included civil liberties and legal issues in the 1970s - and I would have to say, our old mate, Terry O’Gorman was there. I did not get to speak to Terry on FOI or the drug house legislation, although I would have been quite happy to speak with him about that; the role of trade unions; the women’s movement which was very active and had its genesis there in the University of Queensland; Springboks and racism I have already mentioned - and quite a lot of the Aboriginal rights movement in Queensland against the repressive acts in Queensland at that time grew out of this particular movement; and the media and relevance today.
There were many fine speakers, too many to speak about in the short time available here. Instead I will focus on just two: Brian Laver and Dan O’Neill. Both of these men have great intellects, courage and commitment. They are certainly not hairballs, that is for sure. Both are extremely eloquent speakers and, while I might not always agree with their views, I have always found them to be interesting, challenging and enlightening. I would certainly reject the label of ‘radical ratbags’ used against them by Joh and some of his offsiders over the years.
Brian Laver describes himself as an ‘egalitarian socialist’ who has a strong commitment to free speech and civil liberties. He has the distinction of being forcefully silenced by communists and Queensland conservatives alike. There is a very striking picture of Brian during that time, with the communists actually dragging him away from a microphone with their hands over his mouth, such was their dislike of what he had to say. In 1968, he also fought against the Russians when they invaded Czechoslovakia and actually took up arms against the Russians. So, he is someone with a fairly interesting life and experience.
He continues to articulate his vision of a utopian society which is not necessarily based on materialism and production, and which is free of oppression. He also runs a bookshop in West End in Brisbane and, if you are after some interesting books when you are there, go to the Emma Goldman Bookshop and you will find Brian there.
Dan O’Neill is a remarkable man who has worked as a lecturer in the English Department of the University of Queensland for nearly 35 years. I believe Dan is a true social democrat. His interest in politics grew out of his involvement with the Catholic Newman Society as a young man. Dan still has a deep commitment to a dynamic system of democracy, particularly participatory democracy. He is also one of the finest orators I have ever heard, and he carries that to the present day. He would be in his mid 60s to 70s. Certainly, Dan O’Neill and other academics, such as Ralph Summy and Phil Richardson supplied an intellectual education outside the lecture halls, which was very important for young students such as myself, who were involved in the more scientific disciplines. We were exposed to all sorts of thoughts, philosophies and arguments which I found quite stimulating. I know many others over the years have found, particularly Dan, to be quite stimulating and interesting.
It is difficult for me to capture the expansive debate and deeper themes explored within this conference, and the camaraderie of those who showed great solidarity against the overbearing political oppression at the time. Today we face new dangers and challenges: globalism, terrorism, war in Iraq, oppression of peoples in the Middle East, Europe and Asia on the base of religion and race, not to mention Australian issues such as refugees and equities for Aboriginal people. We would do well to listen to the thoughts of those who continue to be fearless in their thinking and their honesty.
I have mentioned Dan O’Neill, who is retiring from the English department after 35 years of service, and I would like to quote a more contemporary bard, probably from the ones that he is used to analysing, who recognise the shining example that he has set to younger people over many years through his evergreen and courageous commitment to truth and justice. It is Bob Dylan actually:
- May you grow up to be righteous,
May you grow up to be true,
May you always know the truth and see the light surrounding you.
May you always be courageous, stand upright and be strong.
May you stay forever young.
May you have a strong foundation when the winds of changes shift.
May your heart always be joyful,
May your song always be sung,
May you stay forever young.
I believe these words are not about eternal youth and beauty - the cosmetic beauty, I suppose - but rather, they describe those special qualities of the purity of youth - noble qualities such as honesty, truth and joy that are often lost with age. To be honest, we all suffer from that. Sometimes we get a bit cynical, particularly in the work that we are in. Dan O’Neill, as I have said, is 65 or thereabouts, he would be 15 years older than I am. Certainly, that honesty, truth and joy flows through him and he enjoys tremendous respect from a whole range of people. Many of the people at this conference are very successful in life by general standards, many of them doing different things. But one thing in common was, as I said, that solidarity and commitment to social justice. I say again, that I am proud to be counted amongst those people. It was a privilege to attend this conference to deliver a paper - that I might say was very well received – but, more importantly, to participate in such a lively forum that was full of stimulating ideas and issues.
Mr MALEY (Goyder): Mr Acting Deputy Speaker, I place on the Parliamentary Record an executive summary from my experience of the 48th Commonwealth Parliamentary Association Conference in Namibia, Africa, between 2 and 14 September this year.
In line with the first and last rule of speech making, as articulated by one of the African delegates, commonly referred as to the five b’s - that is: ‘Be brief brother, be brief’ - I propose to give a short outline of my activities at the CPA conference and have a number of papers which outline, in more detail, the issues referred to in this overview.
The conference was held in Namibia, a country of 1.8 million people located on the West African Coast. Namibia is a relatively young democracy, which only secured independence from South Africa a little over 10 years ago. Australia, surprisingly, does not have a diplomatic mission in the country. The official currency is the Namibian dollar; however, both the South African Rand and the US dollar are also readily accepted tender.
I was the sole representative from the Northern Territory. In the company of the Chief Minister of Norfolk Island, his Speaker and two other representatives from the Australian Capital Territory, represented Australia at the Small Countries Conference held at Swakopmund in Walvis Bay on Namibia’s Skeleton Coast.
I received many compliments from delegates regarding the high standard of the 47th CPA Conference that was held in Darwin the year before, in 2001. In fact, our Clerk, Ian McNeill, was regularly asked after. Many people were surprised that he was not attending the Small Countries Conference. In fact, one of the recommendations I can bring back to this parliament, is that we endeavour to make sure that our Clerk attends as many of these as possible. They have a separate group that meet – they all know each other and the Clerk is a regular. Parliamentarians, of course, turn over and it is a new group. However, the people who understand how it works and really facilitate the transfer of information, are that core groups
It was an honour and a privilege to represent both the Northern Territory and Australia, and I would personally like to thank the Speaker of the Assembly of the Northern Territory, Hon Loraine Braham, for inviting me to nominate to attend the conference, and the Chief Minister for endorsing and supporting my nomination.
As the sole delegate, I worked feverishly at the Small Countries Conference, and attended every plenary session and participated in the workshops. I did not go to all the workshops because, obviously, if they had three in the one afternoon, you just picked the one which interested you. I gave the presentation about the sustainable development of marine resources in small states, and was part of the group which assisted the Chair, Mr Mike Summers, of the Faukland Islands, and the rapporteur to prepare a report which was prepared for the main body. I have a copy of that report available, if anyone is interested.
In short, the report deals with issues such as 70% of the reefs world-wide are threatened and 88 of the 126 species of marine mammals are also under threat now, and now is the time to look closely at our activities in the oceans of the world, particularly the coastal regions. In the last 40 years, the demand for fish has been growing at twice the rate of the population growth, and it is estimated that there are 400 million fishermen in the world and over 500 million people in the world who depend on coral reefs for food and income. It is estimated that, to sustain this growth and maintain a sustainable harvest of our natural fish stocks, by the year 2030 aquaculture will exceed the yield of wild fish capture. Marine protected areas must be considered as a priority, and governments should be encouraging the investment of real capital in the development of aquaculture. It is not only the way of the future, it is our only option.
I also prepared a speech on the independence of the judiciary, which fell within the broad category of a workshop on Parliamentary Systems in Small States – What Works. The latter topic, at first glance, seems particularly dry. However, it generated a lively discussion and a heated debate. Australia, as a democracy, generally enjoys a good reputation. I navely thought that our system of democracy, whilst not perfect, was an outstanding example of how democracies should work. I was mistaken. After proper consideration of the topic, and listening carefully to several speeches from people from around the world who share our basic democratic process, I am firmly of the view that our parliamentary system in the Northern Territory is in need of constant review. Parliamentary democracy should create an environment where all parliamentarians, regardless of party, creed or race, have a genuine say on the future of the country or community, and there is no one size that fits all.
Some countries do not have a party system and, rather than a minister, a committee system exists to review, in some situations, and overturn the decisions of the chairman who acts as a minister for any given portfolio. There was a view that a party system does not necessarily place the best people in government. In the party system, it was generally agreed that the leader and the ministers have too much power. There was a feeling that cronyism exists, and that people were too often chosen as ministers based on whether the leader felt they would conform to the leader’s wishes, or had served longer periods of time in opposition, not necessarily because they were the best people. As an example, the fall of the Soekarno government; all the people who had been there in the past, irrespective of merit, suddenly became ministers. I suspect there is a huge amount of talent and experience in the backbenchers and overlooked because that is the system – and sayonara; that is how it works.
This is what people are saying all around the world - 160 countries, and this is the conclusion: backbenchers are all too often reluctant to speak up against the government or ministers as this may create the impression of party disunity, and that person then reduces their chance of becoming a minister or leader. What occurs is executive government, not parliamentary government, since the executive controls the purse strings and makes all the decisions. That was generally considered to be unhealthy. Indeed, in several small countries with small parliaments like the Northern Territory, every member of the governing party were made ministers. If you think about it, in one sense, it would not cost the taxpayer any more. I am not saying the member for Johnston - hypothetically speaking, if they made every member of the government a minister, you do not pay him any more. However, that person gets a portfolio and he gets some responsibility, rather than just being a number and a backbencher with no real say, and not part of the government - well, not really part of the corporate entity.
So, quite genuinely, there are lots of options which lots of people consider. Imagine a parliament where there are no parties. Everyone votes at the beginning as to who they think is going to be the minister, and then at the end of that, every bill gets argued and debated, and it is just amazing. Of course, the party system gives people, probably, a more informed choice as to which manifesto they are going to rely upon. But there is very little difference, in a lot of regards, when it comes to populist politics in Australia.
The backbenchers need to be given a louder voice in parliament. An opposition - they also went on to say – with nothing to do, no real way to effect change and no real way to help their constituents, is not part of the system that works. Accordingly, charged with this broader perspective, I am certainly going to suggest, by way of a motion eventually, that some sort of parliamentary reform agenda be considered for the good of all Territorians, and our democratic process. Matters that should be considered include: the numbers of ministers that the government utilises; increasing the number of days in which the Northern Territory parliament sits; and implementing more parliamentary controls on executive government. I am more than happy to provide more detailed information to interested members, and look forward to constructive input into this reform process.
The second week of the conference was held at Windhoek, the capital of Namibia, at the Safari Court Conference Room. The number of delegates swelled to 450 politicians, which included a large contingent of federal parliamentarians and representatives from each state in Australia. The issues which governed the conference were broad ranging and included anything from gender equality, globalisation, and the parliamentary dimension to human security. I have a folder full of reports. There are those who will, no doubt, catch up with me later on and discuss in detail, some of those important issues.
I have to admit that what is strange is that it seems that every parliament around the world just reinvents the wheel in a sense. They are the same issues, one-liners and problems, but the conference, for me, actually has reinvigorated my enthusiasm for the process, and I am really glad that I was given the opportunity to go. It broadened my mind to the role of backbenchers and the opposition. Our system of government - this particular model - is one of about seven different variations. However, the one we have is the limited number of ministers and they are the body corporate which, as a government, really have to massage the backbenchers. However, they are not relevant, and the opposition will try and keep them out of it as well. There are lots of other ways which are, surprisingly, a lot more inclusive.
On a personal note, in my view, political parties do play an important part in the process and allow the public to determine which manifesto can best serve them. The primary difficulty with small parliaments that do have a party basis in which all members are independents, is that you do not know precisely what any new government policy will be. Since the attainment of an executive position, we invariably depend upon some compromise. What they do, it seems., is if I am going to stand as one of the 25 independent members of this parliament, I would say: ‘Look, I want to be the Chief Minister’ and they each set out little manifestos, but I am not sure if that is as effective as having two or three parties in any event.
There is no doubt that we should continually try to find ways to reform and renew our parliamentary democracy. There is a political sea change occurring in the world driven, to a large degree, by my generation, it seems. Politics must be about policies not personalities, issues not sound bytes, substance and not spin. Journalists have an important part to play in ensuring they promote an informed debate in the wider community. The 48th Commonwealth Parliamentarians Conference has given me a renewed focus, and the investment in my electorate and the people of the Northern Territory have made in me is one that I will ensure delivers a sound return.
Ms LAWRIE (Karama): Mr Acting Deputy Speaker, this evening I continue on in a sense of a theme started by the member for Johnston, and that theme to me is remaining young through joy. I participated in a extremely joyous occasion during Seniors Month when, as the member for Karama, I funded and hosted a barbecue lunch for the Malak Thursday Group Seniors.
This is a group of fluctuating numbers, but around 30 women and a handful of men, who get together on a Thursday at the Malak Community Centre. I noticed that Seniors Month was coming up, so I made an application as a lot of people did, to try and achieve some funding for a function at the Malak Community Centre for the Malak seniors. However, that application was unsuccessful. So not to be daunted, I figured we would go ahead anyway and we would make a really joyous occasion for everyone.
So with the able assistance of my electorate officer, Sandi Oldroyd, organised the Malak seniors barbecue. Now the barbecue consisted of me trying out a new model of portable barbecue that I have purchased for my electorate, which I have also tested at various sausage sizzles. It is a little ripper, I have to say, and I commend a portable barbecue to members as a way of food for thought.
The barbecue lunch for the seniors consisted of a variety of foods - salads made up by people in the electorate that were donated as well, as sausages, satays, lamb chops. I have to say the lamb chops and satays seemed to be the favourites amongst the seniors that afternoon.
In wanting to make it a really quite special occasion, aside from the fact that they were being catered for the first time - as many of them said, they had been going there for many years and no one had ever put anything on like that for them. I have to say I was a little saddened by that but, at the same time, felt quite proud that finally a local member was paying them their due attention.
To add a special element to the celebration of Senior’s Month, and the role that these seniors have played in our society - I commend them for that role. The people I hosted the barbecue for have been Territorians for decades. They are so ardently proud of their Territory and, particularly, their home town of Darwin. The idea I hit upon was to invite the nearby school, Malak Primary School. I have had the pleasure of listening to their school choirs. They have three tremendous choirs at the school. I got on to the local principal, Helen Dunchue, who was a very approachable woman, and asked whether or not the school would be willing to have choirs attend the Malak seniors barbecue and perform for the seniors. Well, the school was fantastic, they said: ‘Of course, we would love to be there, not a problem’. We arranged for a time that was suitable for the school and the seniors, and I have to say that the performance by the Malak boys choir and seniors choir went down an absolute treat. You could have heard a pin drop in the room. The senior Territorians absolutely loved the performances. The boys were a really entertaining mixed bag. They included a haka for us, which blew away the seniors in the room. They had so much fun watching it and participating in it.
I extend my thanks, particularly and especially to Merilyn Krink, who is the coordinator of the Malak Seniors Group. Marilyn works tirelessly, week after week, putting on a lovely lunch for the seniors in the Malak area. Marilyn, I know you do not live in my electorate, so this is certainly not a bid to get your vote. I thank you very, very strongly for the many hours of work you put in to make every Thursday a lovely day for seniors in the area.
I express my congratulations for the fine performance by the Malak school seniors choir and the boys choir - they are fantastic. I went and saw the Malak seniors choir again at the Beat. I cannot get enough of that school choir; they are absolutely tremendous. I recommend to all members of the Assembly, really, looking at the opportunity to provide those linkages between the schools and their seniors, because when it happens it is a very, very joyous, special and memorable occasion. I also thank the choir mistress, Ms Liz Veel. She puts in a tremendous amount of effort on her students and that effort really shows up; they are two great performing choirs.
I also had the opportunity on that day to present a Lotteries Fund cheque to the Malak Seniors Group, which will provide them with an excursion to the Territory Wildlife Park. I have to say they are so looking forward to that excursion. They will be bussed out there. The cheque covers their entry fee into the park, some food and drink for the day. They are a very excited group of people, because they do not get the opportunity, on the pension - they cannot afford to go and travel around and have a real ripper of a day out. So, everyone was looking very much forward with anticipation to that excursion.
Every chance we get, we really ought to take the opportunity to make a special effort to thank our senior Territorians. They have put in, over the decades, substantially to our community. They are tremendous people. The sense of humour in that room just kept me going for days. I still have a little giggle when I think of the conversations that were had, and the witticisms that were flying around the room, the memories that they shared, the jibes that they give each other in good nature. We could all learn a lot from the humility, the humour and the wisdom of our seniors.
I have to say, something that I felt particularly pleased about was, whilst some of the boys in the Malak area have a bad reputation amongst the residents because they are ratbags, that particular interaction that day changed attitudes. The kids those seniors would normally have looked upon with a little touch of disdain, due to their sometimes ratbaggish behaviour - they saw the boys choir perform and the seniors were absolutely thrilled. If, in some way, I have helped to weave a fabric of community in Malak through the seniors barbecue, then I feel particularly proud to be given the opportunity as the local member to do that. I have to say that I promised the seniors there will be a repeat performance, an annual event. We will be back there, having another barbecue and some more fun next year. Mind you, they put in the bid that they wanted it once a month. I said I could not afford it, but it will definitely be an annual event.
Mr ELFERINK (Macdonnell): Mr Acting Deputy Speaker, tonight I talk about the lead story in the Centralian Advocate, dated today, of course, Tuesday, 8 October. I am somewhat disturbed by the contents of the story. The headline on the story is: ‘Magistrate sends man to be bashed’. There is nothing particularly new in the process that Magistrate Ward has engaged in, in recognising the system that he is applying to his bail decision. However, I am somewhat concerned about some of the implications in relation to this process.
This being a bail application, of course, means that the person concerned who received bail, has not been found guilty of anything at all. Therefore, this person who has received bail has been sent off to receive a form of punishment under another cultural system. That leaves me with some strange questions.
I have checked the Bail Act. I certainly was not present during the bail application on behalf of the defendant, and I am not sure of all the details that were taken into consideration, so I am going largely off the news report - in fact, entirely off the news report in the Centralian Advocate. However, it does raise some concerns, because, as I understand the operation of the Bail Act, the presumption for bail for somebody charged with murder is, indeed, reversed - which means that it is up to the person applying for bail to apply to the court for grounds, to the balance of probability, to receive bail. It is not impossible to get bail for murder, and it is contemplated by the act, but the parliament has been quite clear in its intent, by reversing the presumption of bail when that particular charge is involved.
I am fully aware that the magistrate is allowed to take in any information, including hearsay evidence, in making a consideration of bail. However, the criteria of the Bail Act is quite specific. I go to section 24(1) of the Bail Act:
- In making a determination as to the grant of bail to an accused person, an authorised member or a court
shall take into consideration, so far as reasonably can be ascertained, the following matters only ...
Nothing in there suggests that this person, or a person, can be bailed to go and receive punishment. I am somewhat concerned that perhaps some aspects of the Bail Act have been ignored in this instance, because in section 24(1)(b), it refers to the interests of the person having regard only to, and I go to:
- (iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii) …
Even if the person who is being bailed on this occasion is at liberty to acquiesce to this form of punishment that they are going to be subjected to, I am curious as to what would happen if that person should die as a result of the punishment that they are going to receive. Indeed, it is contemplated that this person will be stabbed in the thigh. I am deeply concerned that people who are stabbed in the thigh, from time to time, do actually die as a result of that injury. Usually, it is a result of the femoral artery being severed. I have experience of dealing with people who have been killed in this fashion, so I know it is a very real risk.
As I understand, it the process is going to take place at Nyirripi and I am concerned what position that may place the police officers there. I turn to the article from today where Mr Ward took into consideration that, at the payback ceremony, as he refers to it, the police would be present and not intervene. It is a requirement under the Criminal Code of the Northern Territory that, should a person see another person in danger and then fail to rescue them, then they are committing an offence. If that person is in very real danger then I am concerned at what position that may place the police officers in, when they have a duty to protect the laws of the Northern Territory.
Mr Ward relies on the fact that this has been done before and, indeed, I am aware of instances where punishment has been taken into account in terms of sentencing. I am not so sure in terms of bail, but I will take his word for it that it has been done for bail before. I am not entirely sure what this says for the judicial process in terms of whether this person is considered to be guilty or not. Certainly, under the European system of law, or the Westminster system of law, this person is not guilty until such time as the contrary is proved. The contrary, at this point, has not been proved and it concerns me that we are condoning something which is preempting a finding of guilty.
I am also concerned about the position that the magistrate might find themselves in if this person should die. This is not specific to this person and this instance but, more generally, I make the comment that I am very concerned that, where you have situations where these people are sent by the courts for these forms of punishment, they are put at risk. I am just wondering what damage would occur to the integrity of the court if a person should die as a result of this.
Probably the most contentious thing I have to say tonight is that I do pick up on a quote from His Worship in the paper today where he says:
- I think the safeguards are in place and I think it is of upmost importance that Aboriginal law be followed.
It is not as if this has not been done before and it has been done successfully.
I find that a contentious comment. We have a legal system in this country which has to accommodate any number of cultures. Indeed, in the Northern Territory alone, in terms of indigenous people, there are over 40 or 50 cultures represented. Then, of course, from migrant populations like myself, as well as other populations in this Territory, there are other cultures represented as well. We have different religions, we have different creeds, but all of those cultural groups are subject to the law of the Northern Territory, and the utmost respect should be placed on the laws of the Northern Territory which has been presented to the people through a democratically elected parliament.
I just hope that this does not go awry. However, it brings to our attention the nature of the difference in the use of cultural forms of punishment, when it is inconsistent with the expectations and beliefs of our own legal system. It is high time, if we are going to start seeing a Bench which is going to start relying on these processes, that this system be investigated thoroughly and completely. If we are going to have a Bench which is going to make these decisions, then they should be armed not with a simple bail application in the history of the fact that it has been done before, but a fully investigated, fully worked out, fully thrashed out system which can accommodate the laws of the Northern Territory which, in this instance, are supreme.
I urge the government to pay attention to this issue, and to start to formulate a process by which these issues can be investigated, because I am deeply concerned that, if a person in the situation as the particular defendant is in this situation, dies as a result of a decision handed down from the Bench, it will do a lot to harm the integrity of the court and may expose people who are at the place where the punishment is dished out, to further criminal charges. It is an absolute minefield and, if the courts are going to do this, then they should do it with full knowledge and full understanding of what they are getting into.
Motion agreed to; the Assembly adjourned.
Last updated: 04 Aug 2016