Page 4738 - Week 13 - Tuesday, 31 October 2017
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These are a series of amendments and they have been outlined in some part by the Attorney-General and are explained in the bill. But they exclude certain organisations from the operation of the FOI act, specifically the Judicial Council and the Law Society, basically justified because those bodies are outside the scope of government. They allow information officers to delegate some functions associated with processing an access application but not on major decisions. They extend the period for notifying the applicant that their access application has been received to allow for mail timings.
It allows the Ombudsman to delegate its functions under the Freedom of Information Act and, again, that is an administrative measure. It inserts a presumption to schedule 1 that it is against the public interest to disclose information in possession of a court or tribunal unless that information is administrative in nature. It applies the presumption against disclosure of adoption records to the person whom the information is about. It defends the operation of the presumption against disclosure applying to mandatory reporting under the Children and Young People Act 2008 to include voluntary reports. It inserts a presumption into schedule 1 that it is against the public interest to disclose information that is in the possession of the ACT Ombudsman relating to the Ombudsman’s role under the reportable conduct scheme. And it makes the principal registrar a principal officer for all ACT courts and the ACT Civil and Administrative Tribunals, ACAT. While any of those seem reasonable, and certainly they do individually—and I am not suggesting otherwise—it is the cumulative effect that we are concerned about, and that we are not seeing that slow degrading of this act from its lofty pre-election principles.
Of particular note is the provision in the explanatory statement referring to an amendment to omit a criminal offence. This clause omits section 91 which makes it a criminal offence for a person to engage in conduct with the intention of preventing disclosure of government information where that disclosure would or could reasonably be expected to be required under the Freedom of Information Act. This could be considered more than just a minor change.
In the briefing with the government that my staff were engaged in, the government stated this provision as it exists is too harsh and would have an adverse effect on public servants who may deal with the threat of criminal prosecution in ambiguous situations by not acting at all and refusing to be put into this role. That is largely because it is a matter of whether the act of the public servant who would be potentially subject to this criminal prosecution were malicious or not. And there are elements of the bill that actually deal with this and cover unscrupulous behaviour, such as knowingly making a decision contrary to the Freedom of Information Act. Certainly we do not want a situation where a well-meaning public servant has either omitted information or included information, acting with best intent, but is found to be in breach of the act and then is subject to criminal prosecution. We would not want that to happen.
We will support these changes, but they are reasonably substantive. It does lower the threshold. It does lower the bar in terms of how information will be treated and the
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