Page 2740 - Week 08 - Thursday, 11 August 2016
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The government agrees with Mr Rattenbury that access to government information should be based on an objective assessment of the best interests of the community and not on subjective interests of individuals or the government of the day. What the government cannot support, however, is the erosion of fundamental legal principles which protect particularly sensitive information. These principles, such as legal professional privilege, are upheld Australia-wide by governments and courts alike, and the ACT should not be the exception to this rule.
The bill is based on the Queensland Right to Information Act. It does contain a significantly reduced schedule of information deemed to be against the public interest to disclose. In those aspects, the bill conforms to the parliamentary agreement. However, that is where the conformity ends. For example, the bill completely removes exemptions which apply in the Queensland act to protect particular types of information, including from particular agencies, from public release.
In doing so, the bill in its current form subjects all government information to the public interest test. In each case, this test is applied by one government officer who is provided with a generous amount of discretion as to whether or not to release the document. Some of the information proposed to be subject to the public interest test in Mr Rattenbury’s bill as presented includes information from national intelligence agencies, law enforcement and documents relating to activities under the territory’s counter-terrorism laws.
The government amendments, therefore, will insert additional categories of information into schedule 1, which include categories of information where disclosure is taken to be contrary to the public interest. Cabinet information, national security and law enforcement information are included in schedule 1. These amendments were based on sections 9 and 10 of the Queensland act and are essential to protect information where disclosure could damage the security of the commonwealth, the territory or another jurisdiction. It also protects disclosure of information which could prejudice an investigation.
The bill further departs from the Queensland law by failing to categorise information subject to legal professional privilege as against the public interest to disclose. The exemption for legal professional privilege has been upheld by the High Court and exists in the court’s eyes to service the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. This is a well-established principle in every jurisdiction in Australia, it is protected by every other Australian freedom of information regime, and the ACT cannot become an exception to it. Therefore, the government amendments I will move today add legal professional privilege into schedule 1. The government is entitled to rely on privilege in the same way as any other private individual or entity can, without fear of this information being disclosed.
The bill is in line with the Queensland law in regard to personal privacy, but this does not go far enough to protect this fundamental human right. The bill lists a person’s right to privacy as a mere factor to be considered when applying the public interest test and whether or not information should be released. The government amendments
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