Debate resumed from 17 June 2009.

Mr FRANK TERENZINI (Maitland) [4.44 p.m.]: I am pleased to support this historic legislative package. The bills before the House deliver on the Rees Government's commitment to greater openness, transparency and accountability. It is worth noting that the experience of freedom of information in New South Wales has never been as problematic as it has been in some other jurisdictions. One of the greatest criticisms of recent times has been in relation to the use of ministerial certificates. Ministerial certificates have been used in other jurisdictions not only to withhold information but also to prevent anyone challenging the decision to withhold information. In New South Wales, however, ministerial certificates have only been available for a narrow category of documents. More importantly, the Ombudsman reported that in the 20-year history of the New South Wales Freedom of Information Act he found only one instance of a ministerial certificate having been issued, and that was 19 years ago. The bills before the House will abolish ministerial certificates.

The legislation goes much further than piecemeal improvements. The bills establish an entirely new framework based around the principle of proactive disclosure. This is a huge paradigm shift. It recognises that meaningful government information should be available outside the freedom of information process. The almost universal availability of the Internet means that it is now technologically possible to allow any citizen to quickly, cheaply and easily access government information. Proactive publication on the Internet means that anyone who wants access to information can simply log on and search for what they want. The formal and rigid processes of making an access application to a particular agency will become a last resort. This does not mean that such application processes will cease to be important. Even if applications are rarely made, it is important that the public is given an enforceable legal right to apply for access to information that the Government has chosen not to release. The bills, therefore, also strengthen the processes around making access applications and streamline the rights of review.

It is important that the legislation send the right message to decision makers. To this end the new bills create a clear legislative presumption in favour of disclosure: agencies should disclose information unless there is an overriding public interest against disclosure. Further, they remove the concept of blanket exemptions. A refusal to release information must be tested against public interest considerations and can be made only where a recognisable harm could be expected to arise if the information were to be released. The most significant change in these bills may be the establishment of an independent Information Commissioner, who will have strong powers to get the job done. The Premier already has announced minimum funding for the commissioner, including $3 million in the coming financial year. The office will oversee compliance by agencies with both the letter and the spirit of the legislation. The office will provide training, education, support and advice to agencies and begin the process of cultural change that is required.

In a first for any Australian jurisdiction, the bills create offences for public officials who knowingly breach these provisions or direct or influence the making of an unlawful decision. They explicitly provide that public servants are not subject to ministerial direction and control when making decisions about access applications. Again, this is groundbreaking reform and an Australian first. It sends the right message to decision makers and to Ministers and their staff. Of course, there always will be those who say that the Government could go further. But the overwhelming response to these reforms has been positive. The Ombudsman has described the changes as "a significant improvement on the current regime" and has said that the contents of the bills are "generally sound". The Australian Press Council has described the new measures as "a significant improvement over the existing arrangements for access to government information". Experts who work in this field also have applauded the bill. Megan Carter from Information Consultants said:

As an overall assessment, the draft Open Government Information bill is an enormous improvement on the current FOI Act. I applaud many of the specific reforms, some of them addressing problems of 20 years duration.

Peter Timmins from Timmins Consulting Australia says:

The Draft Bill represents a significant and welcome shift in the direction of a more open, transparent and accountable government in New South Wales. Drafters are to be congratulated for a new high standard in plain English.

This is comprehensive and groundbreaking reform. It highlights and shows clearly the commitment of a government that is focused on transparency and openness and willing to take the difficult measures to move forward and create what the people of New South Wales expect: a government that is willing, in the public interest, to conduct its business in an open and transparent way and to ensure that people have access to the correct information. For those reasons I am very happy to support the bill. I commend the bill to the House.

Mr BARRY O'FARRELL (Ku-ring-gai—Leader of the Opposition) [4.50 p.m.]: I begin by referring to the final remarks of the member for Maitland. He claimed that this is a Government committed to openness and transparency. We well recall in this House last September the Premier saying, "The secret State is over." But within days the Premier refused to detail to the media, to the public, to the taxpayers of New South Wales, the wages of those who had been employed by his predecessor in the Premier's office. The Government Information (Public Access) Bill 2009, the Government Information (Information Commissioner) Bill 2009 and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009 owe their existence and the reforms that are being made to the efforts of those who work in the office of the NSW Ombudsman. These bills are a tribute to the State's Ombudsman, Mr Bruce Barbour. Mr Barbour and the Ombudsman's office have dragged this Government kicking and screaming to the reforms of freedom of information that are well overdue in this State.

The claim that those opposite are committed to transparency and accountability is like claiming the devil wants to see an end to sin. It simply does not stack up on the basis of the Government's 14 years in office. If we look at what other jurisdictions around this country have done, particularly in recent times, it is clear that, once again, we have a Premier ticking a box—wanting to go forward with a claim to be reforming freedom of information but doing no such thing. He claims that this is fundamental reform, but in every action he refused to commit to the transparency and openness that is the true and only antidote to corruption and malpractice in public administration.

Those of us on the Liberal and National parties' side have been arguing for more than a decade for reform of this legislation, and we have done so with this legislation in our DNA. We are the parties that delivered open government: we are the parties that delivered the State's first Freedom of Information Act in 1989. It was part of a series of reforms initiated by the Liberal and National parties when last in office to ensure that the sort of corruption, maladministration and waste that had preceded the 1988 election never again would happen in this State. We introduced not only the freedom of information legislation, the Independent Commission Against Corruption Act and whistleblower legislation but also a genuine commitment by those of us who were in government then—those sitting on the Liberal and National party benches—to ensure that the letter as well as the spirit of the law was adhered to.

It did not take long for those opposite, as they have done in so many areas, to seek ways to subvert the spirit of the law. I well remember during the former Liberal-National Government that the first time a ministerial office was aware of a freedom of information request—whether from a member of the public, a member of the media or a member of this place—was when the response to that request had been made publicly available, within the 28 days, and when it was on its way out the door. One of the first actions of the Labor Party in office was to ensure that departmental officers were required to notify their ministerial offices as soon as an application was lodged, and over the past 14 years we have seen an increasing manipulation of the freedom of information procedures of the Parliament by the Labor Party. That manipulation culminated in the revelations in the Daily Telegraph earlier this year, which showed a complete and utter rorting of freedom of information by successive Ministers for Roads—but more of that later.

This is a State government that in seeking to diminish the relevance of this place and in seeking to move announcements outdoors into made-for-media press conferences also sought to ensure that one of the foundations of open and transparent government was subverted—not in the interests of the public, not in the interests of better government and not in the interests of the outcomes for the people of New South Wales, but in the interests of the Labor Party. That is why for more than a decade the only way in which train commuters, for instance, got access to on-time running statistics for each of the rail lines in Sydney was through freedom of information requests lodged by Coalition Opposition members.

That is why a number of years ago, as shadow Minister for Transport, having been told of the manipulation within what was then RailCorp by the Minister's office of applications received from me, I lodged a simple application. I paid my $30 and lodged an application seeking the file that RailCorp kept on my freedom of information requests. Did I get a copy of the document relating to me—I was the third party? No. I got a refusal to provide those documents on the grounds that it may interfere with the relationship between RailCorp and the then Minister for Transport, Carl Patrick Scully. At that stage I went back and had a look at the Freedom of Information Act. Nowhere was there a ground of refusal that was in line with that defence. It again highlighted the Government's lack of commitment to genuine openness in government, the Government's lack of commitment to the concepts of freedom of information and the Government's continued obsession with itself and its political interests.

These reforms are welcome. They have been forced upon the State Government, and they flow from a discussion paper, which was put together firstly by the Ombudsman's office in September and which resulted in the February 2009 final recommendation in relation to reform. The Liberal and National parties, in line with our previous commitment to ensure greater openness and transparency, made submissions to those inquiries and we welcome the direction in which the Ombudsman has sought to take us. There are some differences, but what concerned me is that the Premier attempted to blame the bureaucracy for whatever problems had been experienced with freedom of information.

The problem has not been with the bureaucrats handling the system; the problem has been the political manipulation by Ministers and ministerial officers in the process—manipulation that has no place within the Act and manipulation that has no place in a system of government in which, as I said before, openness and transparency provide to the public one of the guarantees of open government based on integrity. The Premier's preference for blaming the bureaucrats for the sins of the political masters again highlights another of the Government's failings.

Whatever one might think of recent ongoing events being unveiled in Canberra, what sickened me to the core on Saturday—but what found in the recesses of my memory an understanding of the way in which the Labor Party operates—was the Federal Minister for Finance standing before the media in Melbourne attacking the very Treasury official who, clearly with great pain and anguish, was caught in the middle of the episode on Wednesday. The signal that that sends to whistleblowers in the Federal public service is appalling. I am happy for that affair to ultimately take its course and I am happy for those people to be judged. But without any of the information evident, even to Minister Tanner, there was a Federal Labor Minister bagging personally a public servant, sending a clear message to the rest of the Australian Federal public service.

That is what we see time and again in this place: an attempt by the Labor Party in office to browbeat the public service and an attempt by the Labor Party in office to ensure that any whistleblowers, whether well motivated or not, are penalised and punished before the facts are outed. Today of all days, I am not going to get into the treatment of Jillian Snedden. Her case demonstrates a lack of cultural commitment by the Labor Party to open government, anti-corruption and the interests of whistleblowers.

The Liberal-Nationals' concerns about this legislation relate to four areas. We will not oppose the legislation, but we make it clear that this area will be subject to further changes when, as expected, we are elected to government on 26 March 2011. No-one should accept the Premier's announcements as the final position on freedom of information legislation in this State. That is not the recommendation in the Ombudsman's report and the Coalition intends to ensure that New South Wales is genuinely at the cutting edge of open government, not only in Australia but also within the region. We will make recommendations along those lines.

The Coalition will remedy four aspects of this legislation. First, we believe that the office of the Information Commissioner should be located in the office of the NSW Ombudsman. There is no doubt that, as the originator of this reform effort, as the office that has done the hard yards in advancing reform to open government in this State and also because of its experience and knowledge, the office of the Ombudsman should be home to the Information Commissioner.

Secondly, the Coalition strongly believes that the person appointed to be the Information Commissioner should be appointed on exactly the same basis as the Ombudsman is appointed. That is what was recommended and that is what the Premier promised, but that is not what this legislation seeks to do. There are clear differences in this legislation in relation to the removal of the Information Commissioner and the way in which the Parliament can remove the Ombudsman.

Thirdly, in line with the Coalition's policy and submissions, we believe that the quarantine period on Cabinet documents should be reduced to the completion of two terms of Parliament—that is, eight years. In other words, we strongly believe that Cabinet information should be out of the public domain for only eight years. Fourthly, the Coalition will implement the Ombudsman's recommendations regarding the proactive release of certain Cabinet information. There is no doubt that not all the information that comes before the Cabinet is of a commercially sensitive or security nature. When David Solomon reviewed freedom of information laws for Anna Bligh in September 2007, he recommended that the Premier make more information regarding the Cabinet's deliberations publicly available. As the Ombudsman said at page 59 of his report in February this year:

We note the Queensland Government has acted quickly in response to this recommendation by establishing an internet portal to allow members of the public to search selected Cabinet information. We would recommend that a similar approach is considered for NSW.

They are the four substantive changes that a Coalition government will make. We believe they are in line with what the public expects of a government. They are certainly in line with what the public expects of a government that will replace this rotten, incompetent and, in my view, corrupt Government.

Mr Frank Sartor: That is a bit rich.

Mr BARRY O'FARRELL: I do not think so. That interjection was made by a former Minister for Planning who was able, because of successive incompetent governments—including the one in which he served—to accrue to himself extensive planning powers that could be used without the right of appeal and to enrich people to the tune of millions without any transparency or criteria—

Mr Barry Collier: Point of order: I ask the Leader of the Opposition to be brought back to the leave of the bills rather than having a general debate across the Chamber.

ACTING-SPEAKER (Mr Matthew Morris): Order! I uphold the point of order. The Leader of the Opposition will confine his remarks to the leave of the bills. He will resist the temptation to respond to interjections.

Mr Jonathan O'Dea: Point of order: Mr Acting-Speaker, would you please direct members on the other side not to interrupt and thereby incite responses.

ACTING-SPEAKER (Mr Matthew Morris): Order! I direct members on both sides of the House not to interrupt the Leader of the Opposition.

Mr BARRY O'FARRELL: To the point of order: I am hoping that the member for Rockdale will be interrupting me from the Premier's seat pretty soon. I would welcome his interjections as the leader of this Government. My comments are relevant because the State's freedom of information laws do not allow us to work out the criteria used by the former Minister for Planning or the current Minister for Planning in making decisions.

Mr Frank Sartor: Yes they do.

Mr BARRY O'FARRELL: No, they do not. There are no criteria.

ACTING-SPEAKER (Mr Matthew Morris): Order! Members will cease interjecting.

Mr BARRY O'FARRELL: There are no criteria or guidelines about how those decisions are made. It is that rottenness and our concern about corruption and dollars for donations—

ACTING-SPEAKER (Mr Matthew Morris): Order! Members will cease interjecting.

Mr BARRY O'FARRELL: That is fundamental to this debate. That is the reason these and other reforms are necessary. This is more than simply ticking the box; the Government must walk the walk. We do not believe the Labor Party when it comes to these issues. We must watch what members opposite do, not listen to what they say. That has been our experience over the past 14 years. I was reminded of that only two weeks ago. Members will recall that in March this year we had an incident at Sydney Airport in which a bikie was battered to death. At the time, concerns were raised about an employee of the Roads and Traffic Authority, and the Minister for Roads and the Premier rejected them out of hand. I lodged a freedom of information request in an attempt to establish whether the police had raised those concerns. I was initially told that the New South Wales Police Force had no such documents. The Roads and Traffic Authority told me that it was engaging in that work.

The Coalition also moved a motion in the upper House that gave me access to my freedom of information file from the Roads and Traffic Authority. Guess what? That file contained clear evidence that the police had communicated with the Roads and Traffic Authority and that the Government knew. We need more than words and legislation. Over the past 14 years this Labor Government has thwarted and manipulated legislation that provided the public with some semblance of open and transparent government from 1988 to 1995. This Government has used that legislation against the public interest. Of course, this Government only ever puts its interests to the fore. For those reasons, while not opposing this legislation and applauding the initiative and effort of the Ombudsman to get to this point—we are only halfway through this journey—I foreshadow that the Coalition will make the appropriate amendments to this legislation when we are in office.

Ms CLOVER MOORE (Sydney) [5.08 p.m.]: I welcome the Government Information (Public Access) Bill, the Government Information (Information Commissioner) Bill and the Government Information (Public Access) (Consequential Amendments and Repeals) Bill, which provide for a much-needed move towards a new culture of open government following the NSW Ombudsman's review. My commitment to strong and effective freedom of information legislation has continued since the principles of open and accountable government formed part of my pre-election commitment in 1988, when I was first elected to represent the seat of Bligh.

When the original freedom of information legislation was introduced in 1988, Independent members played an important role in the debate. Independents moved amendments that dealt with many issues, including reducing the maximum amount of time that an agency could deal with applications, ensuring the cost of obtaining information was within the reach of the average citizen, removing the five-year limitation on access to information, and removing many of the excuses that agencies might put forward for not providing information and reducing exemptions.

The Independents' charter of reform in the Fiftieth Parliament further addressed open and accountable government. Improved freedom of information and increased scrutiny of statutory authorities were important goals of our charter. The aim of the charter's freedom of information reforms was to make all government information available unless there was a compelling case for the information to remain confidential. It was intended that any claim for exemption from the Freedom of Information Act should be required to demonstrate that the release of the document would be contrary to the public interest.

However, the practice of freedom of information legislation in the past decade has become non-disclosure unless there is a reason to disclose. Requests for information are usually denied. The New South Wales Ombudsman's recent State comparisons of freedom of information releases have revealed a culture of secrecy in government departments, with New South Wales having the lowest mainland rate of full freedom of information releases. The onus of proof should be on those wanting to maintain secrecy to prove that there is public benefit in doing so, and I commend this approach in these bills.

The importance or a complete rewrite in plain English is reinforced by the fact that the New South Wales Freedom of Information Act is based on principles developed more than 30 years ago, has been the subject of more than 60 amendments, and has been failing to meet community demands for information. These bills appropriately provide the important presumption for the release of information with public interest tests before disclosure can be refused and provide for proactive disclosures. The underlying presumption of these bills is that it is in the public interest to release government information.

The bills create an independent Information Commissioner to advise on releases, encourage proactive disclosures, hold agencies accountable, and deal with complaints and provide leadership as recommended by the New South Wales Ombudsman. I support the comments of the Leader of the Opposition about the appointment of the commissioner and his or her location in the office of the Ombudsman. I also support his comments about the release of Cabinet documents after two terms, and I will hold him to it if he is ever in the position to be able to achieve that. Transparency is essential to good government and a healthy democracy that promotes public participation and ensures decisions reflect the public interest. Open government is good government and leads to better decisions. My experience has always been that public scrutiny invariably picks up practical and helpful issues and leads to better outcomes. The prospect of public scrutiny will encourage more rigorous evaluation.

In 2006 my Freedom of Information (Open Government—Disclosure of Contracts) Bill became law. The legislation requires government departments to publicly disclose major contracts with the private sector. Earlier I had exposed a damaging deal between the Government and a private consortium over the Cross City Tunnel. The project would have had a more acceptable outcome if the contract had been open to public scrutiny. I am really pleased to see that under these bills the disclosure provisions in my disclosure legislation have been extended to State-owned corporations. State-owned corporations should be required to comply with public disclosure provisions imposed on other government agencies. I share the Public Interest Advocacy Centre's concern that exemptions for State-owned corporations based on competition with any other person are too vague and should be either tightened or require checks by the Information Commissioner.

Contract disclosure requirements will also be extended to councils, which my legislation provided for through regulation. Following the passage of my bill, the City of Sydney council has been publishing on its website details about contracts over $150,000. However, the tenders website where Government agencies publish contract details needs significant improvement to promote public access. The search function is limited, making the search options needed to ensure accountability very difficult; for example, searching all contracts to a particular private company. Class 3 contracts are also difficult to find. This could be something the new commissioner could take up, but I call on the Government to update this website so that it is user-friendly and promotes public access. I also call on the Government to explain why industry support contracts are exempt from disclosure requirements. Essentially this exemption makes them inaccessible for 30 years, which seems unnecessarily excessive.

The City of Sydney council has drastically reduced applications for information under the Freedom of Information Act by making most information freely available on request and increasing public information available on the website. We go beyond the requirements of the Local Government Act and the Freedom of Information Act through our "Access to Information Policy and Principles". Access to development application information has also improved with all documents, including plans and drawings, available on the website and copies of assessment reports available on request. Confidential information is provided as attachments to ensure that entire council reports do not become confidential. These are important bills and I strongly support them. Open government is good government and leads to better decisions. I commend the Premier for providing leadership on this issue and I commend the bills to the House.

Mr JONATHAN O'DEA (Davidson) [5.14 p.m.]: I speak on the Government Information (Public Access) Bill 2009, the Government Information (Information Commissioner) Bill 2009 and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009. The New South Wales Liberal-Nationals Coalition believes that the community has the right to openness, accountability and transparency when it comes to government decision making and information. As the Leader of the Opposition pointed out, when the Liberal-Nationals Coalition was in government the Independent Commission Against Corruption Act, the whistleblower legislation and the original Freedom of Information Act were introduced.

It was interesting to hear the Premier's speech on these bills. In the two years he has been in this House a check of Hansard reveals that he has spoken only eight times on legislation. I have calculated that to be less than one piece of legislation a quarter, so it was interesting to hear him speak on legislation. It was also interesting to note that last Tuesday this Government resolved with opposition from the Coalition that standing and sessional orders be suspended to permit the introduction and passage through all stages at this or subsequent sittings of the House of the cognate Government information bills. Exposure draft bills have been before the Parliament since 6 May 2009, but changes have been made to the draft legislation. Better acknowledgement of the need to properly consult on and consider the legislation should have been given. It is ironic that the Government seeks to cut short the open consultation processes that are normally in place on open Government information bills.

I am currently serving on the New South Wales Privacy Advisory Committee on behalf of the Leader of the Opposition. The week before this legislation was introduced I had the opportunity to briefly discuss the legislation. The expectation, in fact the arrangement, was that further consultation would be had and there was a level of disquiet, shall we say, when it seemed the bills would be rushed through the House. I am grateful that we have had additional time since last week to consider these matters further; the attempt to rush these bills through was both ironic and concerning.

I share with the Premier a view about the admirable performance of the New South Wales Privacy Commissioner, Judge Ken Taylor. The commissioner has made comments to the effect that while privacy and open government are sometimes in conflict, the principles of privacy and open government are also complementary: fundamental measures secure the accountability of government and its servants to members of the public. However, privacy issues in the current legislation that remain unresolved should be addressed in the New South Wales Law Reform Commissioner's review of privacy law.

I echo the view of the New South Wales Privacy Commission and note that in taking a holistic view of reform it would have been ideal for legislative amendments to commence simultaneously rather than separately to facilitate better understanding of the relationship between privacy and open government. Having said that, this legislation should not be delayed, because it is needed as a matter of priority. Further to the comments of the Leader of the Opposition that Cabinet documents be proactively and regularly released, as recommended by the Ombudsman, I note that recommendation 42 (a) of the Ombudsman's report states:

The Premier should identify Cabinet material which can be proactively released on a regular basis.

In response to that, the Government has simply written:

The [Open Government Information] OGI bill authorises the Premier to release Cabinet information. Further consideration will be given to this recommendation.

While the draft legislation gives the Premier power to approve Cabinet documents for public disclosure, they do not provide a list of Cabinet documents for regular release. The Opposition is concerned that the Government's response to this recommendation by the Ombudsman does not provide a clear enough indication as to whether the Government truly supports it. If the Premier is committed to this recommendation, the Parliamentary Secretary should indicate clearly the Government's position in his reply to the agreement in principle speech. I look forward to that response. In line with the spirit of the new information and to ensure a greater level of proactive disclosure of government information legislation, the Premier should release a draft list of Cabinet documents that would be routinely released to the public.

My final comments relate to a need for cultural change from the Government, a government that has been in office for more than 14 years. I agree with the Premier when he said this reform is long overdue, but we need to see the Premier drive real and significant cultural change. That means not just within government administration and the public service, which generally does a pretty good job, but within his ministerial ranks as well. I am concerned there are repeated examples of a lack of transparency and accountability with written questions asked in this place that either are unanswered or referred back and forth in a game of what I call question ping-pong. I will give just two examples of the type of responses to questions that I have experienced and which indicate a lack of openness and proper accountability. I appeal to the Premier to change this culture to ensure that his Ministers properly answer questions of members in this place.

First, I refer to a matter that originated in mid 2008 when I asked the Minister for Police, then Minister Campbell, a four-part question on notice concerning private investigators illegally accessing personal information. The Minister replied by saying that two parts of the question were matters for the Minister for Fair Trading, then Minister Burney. These two questions were then re-asked as a question to the Minister for Fair Trading, who replied by saying they should be directed to the Minister for Police.

Mr Barry Collier: Point of order: I am sure the member for Davidson has carefully read these bills and would know it does not apply to Parliament. The concept of question ping-pong, as he said, is something to do with parliamentary procedure rather than this legislation. I draw him back to the leave of the bills.

Mr JONATHAN O'DEA: To the point of order: I am talking about a question of culture and the need for Ministers to drive the culture. If they do not adopt that culture themselves—and I can demonstrate with examples—there is a problem with culture within this Government.

ACTING-SPEAKER (Mr Matthew Morris): Order! The member for Davidson will confine his remarks to the leave of the bills.

Mr JONATHAN O'DEA: I will be mindful of that. The Government appeared confused over which Minister was responsible. I noticed there was a reshuffle of Ministers, so I asked the two new Ministers the same questions again. The new police Minister, Minister Kelly, via Minister Keneally in this House, referred me to the previous non-answer, and the new fair trading Minister, Minister Judge, referred me to the previous non-answer and the police Minister. The point I am making is that I asked four separate Ministers the same two questions and they referred those questions seeking information—as, indeed, information is supposed to be facilitated under these bills—on four separate occasions to each other. They did not provide the information. That is the sort of culture we need to change and the sort of culture this legislation—

Mr Barry Collier: Point of order: The member is canvassing your ruling. We are still talking about parliamentary procedure and relationships between Ministers, and Ministers' responses to questions. This legislation is about freedom of information. It is called public access. It does not apply to Parliament. I again ask you to draw the member back to the leave of the bills.

ACTING-SPEAKER (Mr Matthew Morris): Order! I uphold the point of order. The member for Davidson will confine his remarks to the leave of the bills.

Mr JONATHAN O'DEA: The point I make, which relates directly to these bills, is that the Premier needs to drive cultural change if these bills are going to operate properly and effectively. That means that his Ministers have to drive cultural change in their departments, and these bills apply to their departments. But if Ministers and this Government are going to hide behind technicalities and be afraid of openness and discussion and revealing what the reality is, this legislation will not be effective. That is the fundamental point.

Unfortunately, I will have to ask the Premier, as I did with the previous questions, a question relating to either the Roads portfolio or the Finance portfolio, because I have just had the same thing happen to me with a question on speed cameras in St Ives. Ministers have pointed to each other and I did not get answers. The Premier needs to change the culture that is obvious in this place and obvious through the whole of this Government. Otherwise, this legislation will be an academic exercise and that is not what we all intend it to be.

Mr PAUL PEARCE (Coogee) [5.25 p.m.]: Mr Acting-Speaker—

ACTING-SPEAKER (Mr Matthew Morris): Order! Members will cease interjecting.

Mr PAUL PEARCE: I support the Government Information (Public Access) Bill 2009 and the cognate bills. Will the two members opposite go and play outside?

ACTING-SPEAKER (Mr Matthew Morris): Order! Members will cease interjecting. The member for Coogee has the call.

Mr PAUL PEARCE: The bills before the House seek to ensure access to government information being provided on the presumption in favour of disclosure unless there is an overriding public interest against such disclosure and away from the current concept of exemptions. The essence of the bills will see a shift in the thinking of government agencies toward proactive publication of information. The bills abolish ministerial certificates, as was mentioned earlier, and streamline proposals for review of access applications. Current fees and charges are fixed so that cost does not become a disincentive for members of the public to pursue their right to access information. The need for discounts in prescribed cases of hardship or special public benefit is recognised.

The bills also contain new offences for public officials who wilfully make an unlawful decision in relation to an access application, or who destroy or conceal records for the purpose of preventing their disclosure. That could have some relevance to recent events in Canberra. The bills also recognise a legitimate need in the public interest to protect Cabinet information, law enforcement and safety information, and private or personal information about individuals. More controversially, perhaps, the bills protect information that is commercial in confidence. The latter category of information has, in my opinion, been abused in some instances as a reason for the non-disclosure of information by some agencies.

Clause 3 of the principal bill, in stating the purpose of the bill, requires that the Act be interpreted and applied so as to further the objective, and requires the discretions conferred by the Act to be exercised so as to facilitate and encourage access to government information. Part 2 outlines the general principles including ways of accessing information in division 1. Clause 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with the provisions of part 4. Clause 11 provides for the Act to override any contrary provision in any other Act that prohibits the disclosure of information, other than that provided for in schedule 1. Clause 12 provides that there is no limit on the public interest considerations in favour of the disclosure of government information that may be taken into account. The public interest test proposed in clause 13 is rigorous and is worth quoting in full:

There is an overriding public interest against disclosure if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

In effect, this clause puts the onus on the agency to establish the public interest against disclosure. Clause 15 outlines the principles under which agencies are bound when applying the public interest test. The public interest considerations against disclosure are listed in the tables under clause 14. I referred earlier to the use of commercial in confidence as a vehicle utilised by many agencies to deny the public legitimate access to information, especially where the private sector is involved. Whilst I would favour the Act going further in this regard, given the tendency of governments at all levels to contract out activities, which historically—and I consider properly—should remain in the domain of the public sector, it should be noted that the interaction of tables under the heading "Business interests of agencies and other persons" in clause 14 and the effect of clause 32 will require the agency involved to provide reasons as to why certain information is not included in the register.

Part 5 identifies the process for review of decisions. Subclauses (a) to (m) of clause 80 identify which decisions are reviewable decisions—it is an extensive list. Clause 81 refers to the extended review period when more than one decision is made. Clause 82 refers to the right of internal review; extensive rights are outlined under that clause. I refer to division 3 of part 5, which establishes the right to have the decision reviewed by the Information Commissioner. Subclauses (1) to (4) of clause 89 set out those extensive rights.

I turn briefly to the Government Information (Information Commissioner) Bill 2009, which establishes the Information Commissioner. The general functions and procedures of the Information Commissioner are outlined in clause 14. Part 3 of division 4 outlines the extensive powers of the Information Commissioner. I draw the attention of the Leader of the Opposition to clause 29, because I do not believe he has fully digested this power. Under this clause the commissioner has formal inquiry powers. Clause 29 states:

The Commissioner has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act

The commissioner has been given a huge power in this respect. I respond briefly to comments made by the Opposition. I was stunned by the performance of the Leader of the Opposition, which can be described only as carping and whingeing. The Government has introduced a progressive piece of legislation. The Ombudsman, the public and the media have all made submissions. Broadly, all those who have made submissions on the legislation, including the Ombudsman, agree that it is good legislation. There is some debate as to its applicability or otherwise to Parliament. However, I asked the Ombudsman specific questions about its applicability to Parliament during a recent parliamentary committee hearing and he was not particularly concerned about pursuing this area. I do not think that misrepresents the Ombudsman's view. He had not fully fleshed out the legislation's applicability to Parliament. However, where he was looking at applicability to Parliament, it tended to be in the accounts areas rather than the processes of Parliament, which seemed to concern the member for Davidson.

The Government has responded well to public concern and consequently has received a fair amount of recognition and support for these bills. The Leader of the Opposition—and possibly the member for Davidson— made some reference to the commissioner's terms of engagement and his removal from office. The commissioner's role is that of oversight—a shining a light into the role of Executive Government—and Parliament is the primary vehicle for that role. Clause 8 deals with the commissioner's removal from office. Clause 8 (1) states:

The Governor may remove the Commissioner from office on the address of both Houses of Parliament.

In other words, the commissioner is answerable to Parliament, is doing a job for Parliament, and can be removed by the address of both Houses of Parliament. There has been some debate about whether the commissioner should be located with the Ombudsman. The Ombudsman favoured that as an approach, and that is understandable because the Ombudsman sees a particular role for him and his agency in this regard. I believe that the status of an Independent Commissioner as an independent agency reporting to Parliament enhances the role of the commissioner and recognises the proper role of Parliament in its oversight of Executive Government. To have the Information Commissioner as an independent agency reporting to Parliament gives it greater status, a greater range of powers, and greater capacity to exercise those powers than if it were sitting under another agency known as the Ombudsman.

In general, I think this is good legislation. It will be to the long-term benefit of the public in giving them the right to access information. Legitimate concern has been expressed about the capacity in the past of the public to access information at all tiers of government. There should be a right to information, and the onus should be placed upon agencies to state why information should not be released rather than the public having to justify why they should have access to the information. This legislation achieves that purpose. It places that onus on agencies. There must be reasonable reasons for withholding the information and those reasons must be given. There are also internal processes of review and the Administrative Decisions Tribunal. Ultimately, there is the commissioner's role.

This legislation will achieve a cultural change within departments. It is all well and good for the member for Davidson to talk about the role of Ministers in this regard. We all know that government departments—the Roads and Traffic Authority and its predecessor, the Department of Main Roads, being the obvious ones—have a real problem about releasing information on anything, even to members of Parliament and Ministers. I see members opposite nodding in agreement. Each and every member of Parliament has had that problem. I suspect that in the past even Ministers have had problems obtaining information through certain government agencies, some of which have a real problem about releasing information. This legislation puts the onus on those agencies to justify why they will not release the information. If they cannot justify it, that information should be released. This is good legislation and the Opposition should support it. Instead, the Leader of the Opposition has been carping and whingeing about this excellent legislation.

Mr DONALD PAGE (Ballina) [5.37 p.m.]: As the Leader of the Opposition said, we will not oppose the Government Information (Public Access) Bill 2009 and cognate bills. However, the Opposition has a number of concerns. My concern relates to clause 14 and related clauses in schedule 1 of the principal bill. The promise, as stated by Premier Rees in his agreement in principle speech on 17 June 2009, is:

The new legislation makes clear that an agency should release the requested information unless there is an overriding public interest against disclosure. This is supported by an explicit presumption in favour of disclosure.

However, the reality is as stated a few lines later, where he says:

The new legislation specifies some information for which it is conclusively presumed—

and I emphasise "conclusively presumed"—

that there is an overriding public interest against disclosure.

To those not skilled in the law the term "conclusive presumption" may seem quite innocuous. However, this term rings alarm bells. In the context of the Government Information (Public Access) Bill 2009 it means, quite simply, that any information which is specified to come within the scope of the conclusive presumption is not just exempt in the sense that that term is used in the current Freedom of Information Act but that information is totally beyond reach. A decision by the Government that information to which access is being sought falls within the scope of the conclusive presumption means not only that an application for access to that information must fail but also that that decision is effectively unreviewable by the Administrative Decisions Tribunal.

Such a decision, in effect, has the force of a ministerial certificate. This can be contrasted to the situation under the current Freedom of Information Act 1989. If an agency determines that a document is an "exempt document" in accordance with schedule 1 of that Act, pursuant to section 25 (1) (a) it may refuse access to the document. But the decision by the agency to refuse access to the document can be made the subject of a review by the Administrative Decisions Tribunal. If the tribunal decides that the "correct and preferable decision" is to release the document notwithstanding that it is an exempt document, the tribunal has the power to order its release. Clause 14 (1) of the Government Information Bill closes off any possibility of determination by the tribunal as to whether it is the "correct and preferable decision" to release any information which is listed in schedule 1 of the bill.

Amongst the matters the Rees Government has slipped into schedule 1—contrary to strong recommendations made by the New South Wales Ombudsman—is "information that would be privileged from production in legal proceedings on the ground of client legal privilege". Documents that are the subject of client legal privilege fall within clause 10 of schedule 1 of the current Freedom of Information Act. They are "exempt documents", and an agency may then refuse to provide access to such documents. Such a decision is, however, currently reviewable by the Administrative Decisions Tribunal. The tribunal is obliged to order the release of such a document—over the objection of the agency if necessary—if it decides that it is the "correct and preferable decision" to do so.

The Ombudsman has stated on numerous occasions that government agencies have hidden behind the provisions of clause 10 of schedule 1 of the Freedom of Information Act, to prevent information which it is in the public interest to release from being released. In his review of the Freedom of Information Act 1989 the Ombudsman stated at page 57, under the heading "Busting the Myths", in relation to claims for legal professional privilege:

Legal professional privilege is an important legal principle, but it is not an inalienable right. Many of those who have made submissions to this review reacted very strongly to the suggestion that a public interest component be included when an agency is considering refusing access to documents on the grounds of legal professional privilege. They suggested privilege is claimed as a matter of course, seemingly without consideration of its appropriateness. Only one submission recognised that an agency can choose to waive privilege, even where the documents legitimately attract the protection. We have published guidance around some of the situations where it may be appropriate for an agency to waive privilege

Rather than taking heed of these comments of the Ombudsman, the Rees Government has brought down its Iron Curtain. In the future, a decision by an agency to refuse to provide access to a document that is subject to legal professional privilege will be unchallengeable. Rees's brave new world of "transparency and integrity of Government in New South Wales" is actually a step backwards in time, because of clause 14, related clauses in schedule 1, and the argument I have just outlined.

Mr FRANK SARTOR (Rockdale) [5.43 p.m.]: I speak in support of this important legislation. While the Government Information (Public Access) Bill 2009 and cognate bills include a number of groundbreaking reforms, I want to focus my comments on the proposed establishment of an Information Commissioner. In so doing, I first want to recognise the important role the New South Wales Ombudsman and his office have played in relation to the Freedom of Information Act over the last 20 years. Both the current Ombudsman and his predecessors have undertaken a crucial review function in relation to freedom of information. They have assisted countless members of the public and have worked cooperatively with agencies to improve transparency and access to information. The Government has recognised their contribution to the good governance of New South Wales.

The proposed Office of the Information Commissioner is about going beyond the traditional role of an Ombudsman. It is about establishing a true champion of open government who will work closely across government agencies to promote best practice information disclosure. Mirroring the more general shift in focus toward proactive disclosure, the Information Commissioner will also be required to be proactive, and to not simply react when things go awry. The commissioner's functions include issuing guidelines and developing policies, as well as providing education and assistance to both the public and agencies. It is proposed that the Information Commissioner's website will itself provide a one-stop portal for access to information across all government agencies. Eventually it will become possible for applications to any agency to be lodged electronically through the Information Commissioner's website. The bills explicitly allow for this to be done. Simply establishing a new office does nothing. Three crucial features will be critical to its success: first, independence from Government; second, clear functions and robust powers; and, third, adequate staff and resourcing.

A number of features of the Government Information (Information Commissioner) Bill protect the independence of the office. An Information Commissioner can be appointed for terms of up to five years but can only be reappointed once, providing a maximum of two terms or up to 10 years. Any appointment will be subject to veto by the joint parliamentary committee—something Opposition members conveniently chose to ignore in their rantings on this issue. Like the Ombudsman and the Commissioner of the Independent Commission Against Corruption, the Information Commissioner will report directly to Parliament, and will only be able to be removed upon an address of both Houses of Parliament—another feature Opposition members conveniently and deviously chose to ignore. These processes, which reflect those that apply to other watchdogs, such as the Ombudsman and the Auditor-General, ensure that the Information Commissioner will remain at arm's length from the Government. The Information Commissioner will be free to comment, compliment and criticise without fear or favour.

The second thing the Information Commissioner needs is clear functions and adequate powers. The power to review complaints in relation to access applications is an important one. In accordance with the Ombudsman's recommendations, the Government is retaining a dual process for reviews. The Information Commissioner will be able to make recommendations and the Administrative Decisions Tribunal will be able to make legally enforceable determinations. This does not mean, however, that the Information Commissioner's only power is persuasion. The Information Commissioner will be given full royal commission powers when investigating complaints about an agency's conduct in relation to information disclosure. The Information Commissioner will be able to compel the production of documents and witnesses. Agencies will not be able to refuse to comply with a demand from the Information Commissioner, even on grounds of legal or public interest privilege—another important facet that was conveniently ignored by the Opposition.

The Information Commissioner will be able to undertake investigations, whether in response to a specific complaint or on his or her own initiative. In addition, he or she will be able to investigate a particular agency or investigate issues that run across all agencies. In addition to all of this, the Information Commissioner will have power to review the conduct of not just agencies and public servants but Ministers too. This is an important difference between the Information Commissioner and the Ombudsman. The Ombudsman does not have this power; it is something that it would not be appropriate for an Ombudsman to do.

It is also worth pointing out that the Ombudsman did not recommend giving the Information Commissioner power to review decisions of Ministers. The Government has gone beyond the recommendation of the Ombudsman in that respect. As well as his or her other powers, the Information Commissioner will be given explicit standing to make submissions before the Administrative Decisions Tribunal. The Information Commissioner will also be able to bring judicial review proceedings in the Supreme Court. Of course, it should never come to that. The Ombudsman in his report recognised that a strong power to make recommendations is itself a powerful tool, allowing for matters to be resolved in a cost-effective, pragmatic and flexible way.

With regard to staffing and resources, the Premier has already announced a minimum funding commitment of $3 million in the coming financial year to establish the new office. The Premier has also said that the funding will be at least $4 million per annum going forward. This is a minimum guaranteed commitment. The funding for the New South Wales Information Commissioner is to be compared with that for the Commonwealth Information Commissioner of around $5 million a year and the funding proposed for the Queensland Information Commissioner of only around $2 million per annum. A more meaningful comparison may be to look at the Information Commissioner's funding compared with what the Ombudsman currently spends on freedom of information functions. On this basis, the new funding represents a substantial increase of more than 500 per cent, which again shows that the Government is serious about this issue.

Mr Peter Debnam: The Government has never been serious about anything.

Mr FRANK SARTOR: I hear the puerile and trivial interjections by the member for Vaucluse. I also want to respond to the suggestion that the Information Commissioner should be part of the Ombudsman's Office. Let us be clear about this. The Law Reform Commission, the Privacy Commissioner, the Law Society of New South Wales and a number of other stakeholders have strongly supported the establishment of a separate office. By establishing a separate office we are creating a clear line of authority and a clearly transparent process by which the people of New South Wales and all stakeholders will have access to redress any information access issues.

Queensland and the Commonwealth have established a separate office. Yet Opposition members carry on as though it is a major conspiracy in New South Wales. They cannot bring themselves to accept that the Government is doing a lot of good things. They can never be gracious enough to acknowledge the good things the Government is doing. Does the Opposition want to bury the Information Commissioner and 25 staff amongst hundreds of staff in the Office of the Ombudsman, or does it want a separate and transparent body that will oversight access to information in this State? I listened to the Opposition speakers, who were churlish, trifling, petty and whingeing. This is good law. In many respects the legislation goes beyond the Ombudsman's recommendations. The Government has introduced this legislation in good faith. Opposition members should show maturity by occasionally supporting good policy. But they cannot bring themselves to do so. Instead, they carp and whinge. They are petty and trifling, and basically irrelevant. It is my pleasure to support these bills.

Mr THOMAS GEORGE (Lismore) [5.50 p.m.]: I speak on the Government Information (Public Access) Bill 2009 and cognate bills, the Government Information (Information Commissioner) Bill 2009 and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009. These bills implement fundamental reform to the State's freedom of information laws, replacing current legislation. The bills are essentially in accordance with recommendations made by the New South Wales Ombudsman in his February 2009 report on the review of the Freedom of Information Act 1989 entitled "Opening Up Government". The three main elements of the bills are: a new Act to replace the current Freedom of Information Act 1989; a greater emphasis on the proactive disclosure of government information—a push versus pull system; and the creation of an Information Commissioner.

As background, the Greiner Government introduced the New South Wales Freedom of Information Act 1989 in response to community demands that the Government be more open and accountable to the people it serves. That is something this Government should learn to do. Almost two decades later the New South Wales Ombudsman initiated his own review of the Freedom of Information Act and made 88 recommendations for reform in his February 2009 report. The New South Wales Liberals-Nationals made a submission to the New South Wales Ombudsman's review. The new system recommended by the Ombudsman included three key elements: a greater level of proactive disclosure of government information, a new open government information Act to replace the Freedom of Information Act, and the appointment of an independent Information Commissioner.

On 6 May 2009 the Premier tabled in Parliament three exposure draft bills, which sought to implement the major recommendations in the Ombudsman's report. The New South Wales Government invited submissions on the draft bills. The Coalition made a submission, raising concerns with the draft bills. The bills that have now been introduced are the amended draft bills, based on issues raised during the consultation period. As the Leader of the Opposition indicated, the Coalition has supported the Ombudsman's recommendations in his report on the Freedom of Information Act. The proposed bills are a significant improvement on the current regime of information delivery in New South Wales and reflect the key elements recommended by the Ombudsman in his report. I note the change in the title of the bill from Government Information Bill, as recommended by the Ombudsman, to the Government Information (Public Access) Bill. The Coalition accepts the advice from the Department of Premier and Cabinet that the change has occurred as a result of recommendations in several submissions about the title of the bills. The changes in the legislation are overdue.

I want to refer to a personal experience. In May 2009 I wrote to the Consumer, Trader and Tenancy Tribunal [CTTT] requesting information. Not surprisingly, the tribunal responded that my application had been refused and sent a cheque for $30 as refund of my application fee. I also wrote in May 2009 to the Co-ordinator, Freedom of Information, Office of Fair Trading, and attached a document listing all the material I required. I received a response from the Office of Fair Trading, part of which stated:

As the application involved access to information of a non-personal nature, the Office of Fair Trading can impose a processing charge of $30.00 per hour.

On receipt of the money, the Office of Fair Trading indicated it was processing the application. In June 2009 a letter from the Office of Fair Trading, signed by Yolande Nyss, Acting Co-ordinator, Freedom of Information, stated:

I refer to your application requesting access under the Freedom of Information Act

DeterminationDetermination

I have today determined to refuse access to the documents sought under Schedule 1, Part 1, clause (4)(1)(a), Part 2, clauses 6 and 7(1)(c) of the Act.

Under "Reasons for determination" the letter stated:

My determination claims refusal of access under clauses 4(1)(a), 6 and 7(1)(c). A copy of these clauses is attached.

The Office of Fair Trading has the power to investigate matters and take action to secure compliance with the legislation it administers. Such investigations are always handled confidentially as any premature release of information could prejudice the investigation. For example, it could alert the party concerned and could lead to evidence, proposed or needed, to be relied upon, being destroyed, or steps being taken to hinder the investigation. As the investigation is not finalised it falls within this circumstance.

Clause 4(1)(a) of the FOI Act may apply where the release of documents would result in a premature and unnecessary end to the investigation of a breach, or possible breach of the law, or if disclosure would forewarn a suspect of the direction of the investigation and the evidence available against them (eg Case T66 (1986) 86 ATC 1,001). It is not necessary to be able to point to any actual breach of the law. It is enough that some breach may have occurred.

The letter went on to give further reasons for determining to refuse my application and cited various clauses. Then the fun begins. After a week of parliamentary sittings, on returning to my electoral office I received a message to contact a constituent, who was the person I was seeking the information about. He had rung my office and left a message for me to ring him back. I thought it was strange that he had contacted my office. I rang him—it took me three phone calls to reach him—and he said, "I believe you have got trouble with my companies." I said, "I beg your pardon?" He said, "You've been to the Department of Fair Trading". I said, "Have I?" He said, "I was just ringing up to see if I could sort it out." I said, "Who told you to ring me?" He said, "One of the officers in the department." The very next week there was a heading in the Northern Star, "Company Slammed".

I must admit I got a fair few phone calls in the next day or two from the people concerned. I immediately got on to the Minister's office and was told that my freedom of information request was refused because it might create a problem for an investigation that was going on. Yet the constituent had been rung by an officer within the department—who I understand has since been counselled—to inform him that the local member had sought information through the freedom of information process and was making inquiries about his company.

It is all history now, but the Ombudsman was right in undertaking this review. As a member of Parliament I had never been knocked back because of the personal nature of my inquiries under freedom of information, but when I rang the Minister's office to register my concern that the information had been forwarded to this constituent about whom I was seeking information the issue was followed up and corrected as far as I was concerned, and no doubt corrected as far as he was concerned. This legislation is well overdue. As indicated by the Leader of the Opposition, who led for the Coalition in debate on these bills, a Liberal-Nationals government would ensure that the terms for removal of the commissioner mirror the terms of removal of the Ombudsman; would ensure that the Office of the Information Commissioner would be constituted in the Office of the NSW Ombudsman; would reduce the quarantine period on Cabinet documents to the completion of two terms of Parliament; and would implement the Ombudsman's recommendations regarding the proactive release of certain Cabinet information.

Ms GLADYS BEREJIKLIAN (Willoughby) [6.02 p.m.]: I am pleased to make a contribution to the debate this evening on the Government Information (Public Access) Bill 2009, the Government Information (Information Commissioner) Bill 2009 and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009 because I take a strong interest in matters regarding access to information by my constituents, and especially in relation to my capacity as shadow Minister for Transport. Along with my colleagues on this side of the House, I will not oppose the legislation. However, I express some disappointment that the Government has not sought to include all the major recommendations of the Ombudsman. It is one thing to enshrine legislation in relation to access to information but another thing to demonstrate a commitment to an issue through the culture that the Government engenders throughout the public service in its leadership as a government willing to be open and transparent.

Regrettably, notwithstanding the fact that the Government has sought to make some improvements to the current regime, I am still concerned that the Government is incapable of adopting the notion of openness and transparency. I will outline to the House this evening some experiences I have had with the freedom of information process in the hope that the Government will take my views on board and undertake a huge culture shift in the way it approaches issues of openness and transparency. In introducing these bills the Government seeks to implement reform to the State's current freedom of information laws. Essentially, the bills are in accordance with the recommendations made by the NSW Ombudsman in his February 2009 report on the Review of the Freedom of Information Act 1989 entitled "Opening Up Government".

However, it is one thing to make these improvements in the law but another thing to exhibit them in practice. The three main elements of the bill are to introduce a new Act to replace the current Freedom of Information Act, which was introduced in 1989; to provide a greater emphasis on the proactive disclosure of government information, which, again, relates to the culture of the government; and to create an Information Commissioner. As the House has heard already this evening, we on this side of the House are proud to say that it was the Greiner Government that introduced the New South Wales Freedom of Information Act 1989 in response to justifiable community demands that governments be more open and accountable to the people they serve. Now in this information age when access to information is so critical and when people have access to information through the Internet to so many aspects influencing our lives it becomes even more important to ensure that that access to information extends to information held by the Government and its agencies.

Almost two decades after the introduction of the Freedom of Information Act, the NSW Ombudsman initiated his own review of the Act and made in excess of 80 recommendations for reform in his February 2009 report. The Opposition made a submission to that inquiry. The system recommended by the Ombudsman included three main elements: a greater level of proactive disclosure of government information; a new Open Government Information Act to replace the Freedom of Information Act; and the appointment of an independent Information Commissioner.

The New South Wales Coalition supported the NSW Ombudsman's recommendations. The proposed bills are a significant improvement on the current regime and reflect some of the key elements recommended by the Ombudsman but, as I have said, we are disappointed that the Government did not adopt all the major recommendations. In government, the Liberals and Nationals would ensure that the terms for removal of the commissioner mirror the terms for removal of the Ombudsman; that the Office of the Information Commissioner is constituted in the Office of the NSW Ombudsman; that the quarantine period on Cabinet documents is reduced to the completion of two terms of Parliament and not for 10 years; and that the Ombudsman's recommendations regarding the proactive release of certain Cabinet information are implemented.

I place on record some experiences I have had with the freedom of information process. First, in relation to the deadline for having access to information, until today that deadline was 35 days. Unfortunately, the State Government displays scant regard for meeting this deadline and it is not uncommon for me as a member of Parliament to receive responses many months overdue. In some cases it has taken five or six months for me to receive a response when the deadline is only 35 days. I lodged a request for information in relation to the Tcard project on 27 November 2007 and I did not get the determination until 30 April 2008—five months later, despite the 35-day deadline. That is just one example of many. Often the deadline is never met.

Secondly, there is a lack of acknowledgement. Often government agencies fail to acknowledge a freedom of information request, which makes tracking the 35-day deadline extremely difficult. Often you put in a request but you do not receive an acknowledgement, so you do not know where the request is in the system. It is very difficult to track the status of the request when no acknowledgement is given. A failure to date correspondence is another problem that I experience frequently. Regrettably, it is common practice for agencies not to date their correspondence, and this makes it difficult to track the timing of responses. If you receive an acknowledgement that is not dated you cannot track when the deadline period starts. I regard that as a lack of accountability, which is contrary to the intent of the freedom of information laws and not in the public interest.

There is also a lack of disclosure. It has become the norm rather than the exception to be denied access to documents. Often, at first blush, an agency will deny access to a particular document, but it will not adequately explain why access has been denied. The agency might copiously quote from an Act as to why it has denied access but it will not explain specifically how your request relates to those quoted parts. Recently the quantum of denials has been problematic. It is only after an appeal is lodged that the agency looks at the request again, and some months could pass before a proper determination is received.

The issue that I am about to raise relates to the culture created by this State Government. Its tardy approach to its obligations under the Freedom of Information Act is likely to continue until there is accountability by the relevant authorities when the Government does not respond to a request. Members on this side of the House often wait months for a response to a freedom of information request. We keep badgering the relevant Minister's office or agency, but we have no recourse. Notwithstanding any improvements that this legislation might make, there is unfortunately a culture of obfuscating and denying access to information. That cannot be addressed in legislation; it is a culture that is engendered by the Government. I was rather concerned upon reading the Premier's comments about these bills as reported in the 18 May edition of the Sydney Morning Herald. He stated:

The bills mark a paradigm shift. Our public sector must embrace openness and transparency. And governments must forever relinquish their habitual instinct to control information. This is generational change—reform long overdue.

Notwithstanding the existing laws and their shortcomings, my experience is that the Government still manages to obfuscate and to prevent access to information in many critical areas of public policy. That is apparent in respect of issues I have raised on behalf of my constituents and particularly in my capacity as the shadow Minister for Transport. It is important that I keep the Government accountable on transport issues. I am extremely concerned about the recent quantum of denials of information and excuses being given for not providing information.

Another problem has also emerged. If a request is lodged that an agency does not regard as being in its jurisdiction, instead of forwarding it to the relevant agency it will write to the applicant pointing out that the request was lodged inappropriately. A month or two months could have passed since the application was lodged. The agency does not acknowledge receipt of the application and then it takes months to respond by stating that it cannot provide the information. That does not suggest a culture that supports openness and transparency and it is a breach of the law. The Government says that it is overhauling the system and that it encourages openness and transparency, but that is not enough. It must achieve a shift in the culture, and I do not see any evidence of that.

I make a large number of freedom of information applications and I have found that it is getting more difficult to access information, not easier. That concerns me. It is one thing for the Government to say that it is overhauling the law but it is another to actually do it. It is in the interests of every member of this Parliament to accept the importance of the intent of the law, not just the black and white letter of the law. Who knows on which side of the House they will be sitting in the future?

Mr Barry Collier: We've got a paradigm shift.

Ms GLADYS BEREJIKLIAN: That is what the Minister says, but this Government continually breaches the existing freedom of information legislation. As I said, I frequently submit freedom of information applications. I am concerned that this culture exists and that this legislation is no more than a stunt by the Government. Like other members on this side of the House, I intend to keep this Government to its commitment.

Mr Barry Collier: Ridiculous.

Ms GLADYS BEREJIKLIAN: The Parliamentary Secretary says that that is ridiculous.

Mr Barry Collier: Your leader supports it. How could it be a stunt? You are saying that your leader supports a stunt. He supports the bill.

ASSISTANT-SPEAKER (Ms Alison Megarrity): Order! The member for Willoughby has the call.

Ms GLADYS BEREJIKLIAN: The Government ignores the deadlines in the existing legislation, it fails to acknowledge applications, it fails to date correspondence, it fails to provide open disclosure of information sought and there are no enforcement provisions dealing with instances when information is not provided following due process. While the Coalition supports the thrust of the legislation and the changes that the Government has introduced, it is concerned that the legislation does not include the additional measures that it hoped it would. It is not enough simply to change the law; the Government must change the culture. That is what this Government has not done. My experience of making freedom of information applications is that this Government is not interested in openness and transparency. If the Government is drawing a line in the sand today it should prove that with its responses to future applications. I am sick of waiting three, four or five months to get information when the deadline is 35 days. That is not acceptable.

Mr MICHAEL RICHARDSON (Castle Hill) [6.15 p.m.]: The Government Information (Public Access) Bill 2009 goes some way towards meeting community expectations about access to government information. However, it does not meet my expectations with regard to freedom of information. Dressing it up as something else and calling it the Government Information (Public Access) Bill does not mean that it fulfils that promise. The Ombudsman, in his introduction to his self-initiated review—it is not something that the Government initiated—quoted President James Madison, who said:

A popular Government, without popular information or the means of acquiring it, is but a prologue to a farce or tragedy, or perhaps, both. Knowledge will forever govern ignorance, and people who mean to be their own governors must arm themselves with the power that knowledge gives.

This bill does not deliver on that promise. It does improve matters to some small extent, but I have no doubt there are enough let-out clauses left in the bill to ensure that information the Government believes might embarrass it will never be released, and certainly not to the Opposition. If the exemption provisions of the bill are used to deny access to certain documents what appeals mechanisms will be open to the applicant? The Freedom of Information Act provides for an internal review, a review by the Ombudsman, a review by the Administrative Decisions Tribunal and then a review by the Supreme Court. Of course, that is very costly and time consuming. This legislation effectively streamlines that process, but it does not necessarily improve it. It provides for, first, an internal review, a review by the newly created position of Information Commissioner and then a review by the Administrative Decisions Tribunal. The Information Commissioner effectively takes the place of the Ombudsman.

The Ombudsman's review recommended the creation of this position within his office, but the Government rejected that recommendation. Instead, the Information Commissioner's office will be amalgamated with the Privacy Commission, although the two commissioners will operate separately. The problem is that the new commissioner will have very little in the way of extra powers. He will not be able to compel a department to hand over documents even though that is what is needed. Like the Ombudsman, he will simply have the power of persuasion. I fear that in reality very little will change with regard to public access to government information. The Ombudsman's review recommended that the public should have a right of access to information held by the Government unless on balance it is contrary to the public interest to disclose that information and that the new Act should state that there is a presumption that agencies will release documents unless a reason for a refusal, read narrowly, clearly applies. That is a significant change of direction.

I suspect that a majority of New South Wales government agencies think that freedom of information is in fact freedom from information. One of the worst offenders is the Department of Water and Energy, which uses its corporate counsel as the freedom of information officer. One does not use a high-powered corporate lawyer to provide access to information; one uses such an officer to prevent people getting access to information. That was certainly the case when I made a freedom of information application in April 2007. I paid $600 to lodge an application for all letters, emails and reports relating to the policy of allowing the New South Wales renewable energy target to be generated in States other than New South Wales. I thought that was a fairly reasonable request. The department identified 14 documents. It refused to provide the first document on the basis that it was a Cabinet minute, the second because it was a draft bill, the third because it was a Cabinet brief, the fourth because it was a priority delivery plan item E2 of the New South Wales State Plan prepared during 2007, the fifth because it was a brief to the former Minister for Energy, and so on. I demanded my money back.

What we ended up with was a handful of documents. Almost all of those documents were available through the public domain on the Internet or I already had them in my office. For that information the department wanted $600! That is not freedom of information; that is unquestionably freedom from information. Ms Karen Smith should find something else to do with her time rather than acting as the Freedom of Information Officer for the Department of Water and Energy. That demonstrates the way in which the current legislation, and indeed I fear the new legislation, can refuse access to documents. The most contentious area of the existing Act is not how it applies to local councils or the way in which the commercial-in-confidence exemptions are misused in respect of third parties—and they are misused—but the use of Cabinet document exemption. Currently schedule 1 (1) of the Freedom of Information Act reads:

1 Cabinet documents1 Cabinet documents

(1) A document is an exempt document:

(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or

(b) if it is a preliminary draft of a document referred to in paragraph (a), or

(c) if it is a document that is a copy of or part of, or contains an extract from, a document referred to in paragraph (a) or (b), or

(d) if it is an official record of Cabinet, or

(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

(2) A document is not an exempt document by virtue of this clause:

(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet; or

(b) if 10 years have passed since the end of the calendar year in which the document came into existence.



(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.

Or perhaps a subcommittee of a committee of a committee of a committee of Cabinet! Schedule 1 "Exempt documents" of the Freedom of Information Act has been used by the Government to deny the Opposition access to literally hundreds of documents over the years. If the Government does not want to release a document for fear of being embarrassed it simply wheels the document into the Cabinet room from one side and then out the other side. Members may have seen the episode of The Hollowmen—a political comedy-drama—that was screened on ABC television late last Friday night. The lead characters had a group of schoolchildren with them when a woman wheeled a trolley full of documents into the Cabinet room. The schoolchildren inquired as to what the woman was doing. The woman replied that she was wheeling documents into that room so they would become Cabinet documents and could not be looked at for the next 30 years. That program depicts Federal Parliament but exactly the same thing happens here in New South Wales.

I have had a longstanding interest in the issue of graffiti. Earlier this year I lodged a freedom of information application with the Attorney General's Department. I was seeking a copy of the results of the most recent survey of councils about graffiti, a copy of the most recent review of legislation on graffiti, a copy of all reports, emails, letters, memos and emails since April 2006 regarding graffiti, and a copy of all reports, letters, memos and emails since April 2006 regarding the Government's election pledges on graffiti. I received a list of 34 documents relevant to my request but I was refused access. The documents I was sent comprised a copy of the publicly available Bureau of Crime Statistics and Research report "Graffiti Vandalism in New South Wales", a copy of the Graffiti Control Bill 2008 and a media release from the Attorney General titled "New Graffiti Laws Pass".

I was familiar with the material I received because I led for the Opposition in the debate on the Graffiti Control Bill 2008 and I did not need to be sent it by the Attorney General's Department! That demonstrates how ludicrous the freedom of information laws have become under this Government. I agree with the member for Willoughby that it relates not just to the law but also to the interpretation of the law by certain officers in certain departments. It is an absolute disgrace. The first group of the other 31 documents on the list were withheld on the basis that they were internal working documents or that they were draft documents and therefore exempt under section 25 (1) (a) and clause 9 of schedule 1 to the Act.

The second group were withheld on the basis that they were emails containing draft comments of Cabinet-in-confidence requests and were exempted under section 25 (1) (a) and clause 1 of schedule 1 to the Act. The third group were withheld on the basis that they had been prepared for Cabinet or represented a record of Cabinet. I wrote to the Director General of the department, Mr Laurie Glanfield, seeking an internal review. I cited the Ombudsman's review in support of my application. I spoke to him about making this application in the spirit of the review and I hoped he would respond in kind. Mr Glanfield upheld the original decision and I received no documents. However, in his reply he acknowledged that I had had a longstanding interest in the issue of graffiti and had been responsible for a number of pieces of legislation, including the Graffiti Control Bill.

This game is not really moving too far. In the current Freedom of Information Act 23 reasons are given for refusing access to documents, and they do not relate solely to their being Cabinet or Executive Council documents. A study of those reasons indicates that they affect the State's economy because they arise out of companies and securities legislation. It makes you wonder how anybody can get access to any documents whatsoever. A similarly long list of exclusions is provided in these bills. The bills now state that there is a presumption in favour of disclosure unless there is overriding public interest against disclosure, but the position is unlikely to alter much.

Recommendation No. 38 of the Ombudsman's report states that the new Act should refer to "reasons for refusal" not "exemptions", as in the current Act. The Government has neatly sidestepped that recommendation by deleting both terms from schedule 1 to the Government Information (Public Access) Bill 2009, which is now headed "Information for which there is conclusive presumption of overriding public interest against disclosure". We are not talking about providing access to information; we are talking about not providing access to information, and being able to justify that exclusion. This is a clear distortion of the spirit of the Ombudsman's recommendation No. 37:

The new Act should contain a clear statement that the public interest is a central consideration in determining any application.

The Ombudsman did not mean that public interest should be used to justify refusing access to information; he meant that the public interest should be the key consideration in deciding to release information. This is political chicanery of the highest order. It is something that is surely beneath a Premier who professes to support open government. No-one would argue against providing information that might help criminals or terrorists or that might compromise transport safety, but some of the other exemptions are far less certain.

Compare the Cabinet exemption under the existing Act with the proposal under the new bill. The primary changes are the inclusion of the words "for the dominant purpose of" in new sections (2) (1) (b) and (c). That might be considered an improvement but given the new rider that it is to be conclusively presumed that there is an overriding public interest against disclosure—not for disclosure—I doubt it will stop the practice of wheeling documents into the Cabinet room and pushing them out the other side à la The Hollowmen. The proof of the pudding will be in the eating. At least the odious exemption clause relating to internal documents and draft documents appears to have been scuttled. I place the Director General of the Attorney General's Department, Mr Laurie Glanfield, on notice that I intend to resubmit my application on graffiti to his department when this bill becomes an Act and is proclaimed. It will be interesting to see how the Attorney General's Department, which is responsible for drafting legislation for this Parliament, will adapt to the new regime of open government—or whether, indeed, it is able to do so.

Mr ROB STOKES (Pittwater) [6.29 p.m.]: I have listened intently to the excellent and exhaustive contribution of the member for Castle Hill. The reference to James Madison's comment about the importance of freedom of information reminded me of a comment by Jeremy Bentham, an English contemporary of James Madison, who spoke about secrecy being an instrument of conspiracy and how therefore it ought never be the system of regular government. That succinctly states the imperative need for any effective liberal democratic society to have open access to government information.

The noted American political scientist Francis Rourke once commented that freedom of information is axiomatic for a democracy. This well understood need for government information to be freely accessible in a healthy liberal democratic society was behind the introduction 20 years ago of the original freedom of information legislation by the Greiner Government. Now, in a reaction to an excellent review by the NSW Ombudsman of the Freedom of Information Act and its operation, which raised 88 separate recommendations for reform, the present Government, after 14 years in office, has introduced the bills under consideration and that contain much-needed and long-overdue reform to bring our freedom of information system up to date.

The Ombudsman's report focused on three main areas: We need a greater level of proactive disclosure of government information; we need a new Act to replace the Freedom of Information Act; and, importantly and central to all of this, we need to appoint an independent Information Commissioner. The bills take up most, but not all, of the Ombudsman's recommendations and represent a significant improvement on existing processes of providing access to government information in New South Wales. However, there is one specific issue I raise that reflects on the ability of the bills to achieve their stated objectives.

The central observation in the Ombudsman's report is that a centrepiece of any new freedom of information legislation must be the appointment of an Information Commissioner, yet the detail in the bill establishing the Information Commissioner, the Government Information (Information Commissioner) Bill 2009, shows that this office is not truly independent. This lack of genuine independence is referred to in the provisions applying to the removal of the commissioner. In the same way that judicial independence is achieved through security of tenure, any attack on the independence of a government office is revealed in provisions relating to the removal of a person from office.

Provisions providing for removal from office are the key lever to securing or undermining the independence of public offices. While the independence of the Ombudsman is secured through the fact that he can be removed only by the Governor on the address of both Houses of Parliament, the Information Commissioner will be able to be suspended temporarily for absenteeism, incapacity or misbehaviour, none of which are particularised or explained in the bill. This is contained in clause 8 of the bill, the removal from office provisions, and I note that subsection (2) paragraph (b) relates to incapacity in particular. The nature of that capacity is not spelt out. Certainly under clause 7 (f), vacancy in office is realised if the commissioner becomes mentally incapacitated. Removal is not on the basis of mental incapacity; it must be on some other basis, but again that is not particularised in the bill.

Absenteeism, again a ground for suspension, can be effectively a matter of one day on leave entitlements. Misbehaviour is mentioned but, again, without articulating in the bill what misbehaviour involves, this is a fairly broad lever for the removal of the commissioner. While a suspension is not permanent, for a position of public trust like the Information Commissioner, the act of suspending such a public office would effectively devastate the standing of the office and render its continued tenure virtually impossible. Suspending the Information Commissioner would have the effect of rendering his or her continued role impossible.

I strongly believe that the terms for the removal of the Information Commissioner should precisely mirror those of the Ombudsman and not involve further grounds for removal. I would be interested to know why it was felt necessary to provide weaker security of tenure for the Information Commissioner than for the Ombudsman. The independence of the Information Commissioner is central to the success of the legislation. If the commissioner has any reason to look over his shoulder or even if there is room to speculate that the commissioner has personal grounds for favouring the Government, no information released under this new process could be considered entirely open or free. I conclude with the words of President Woodrow Wilson, who summarised this whole issue succinctly when he said, "Government ought to be all outside and no inside."

Mr PETER DEBNAM (Vaucluse) [6.35 p.m.]: All governments should eventually be outside—thrown outside. This legislation is all about a new Premier, new theme, new strategy. What will one of the strategies be? Perhaps it will be changing the freedom of information laws. Any movement forward is welcome but, as a number of colleagues have said this afternoon, these are small steps.

Mr Frank Terenzini: You are never happy.

Mr PETER DEBNAM: Having watched this Government for 14 years, no, we are not happy.

Mr Frank Terenzini: Is it in your manifesto?

ACTING-SPEAKER (Mr Thomas George): Order! The member for Vaucluse will direct his comments through the Chair.

Mr PETER DEBNAM: Certainly. I was just asked by one of the Labor members whether revision of the freedom of information laws was in our election strategy or policy. Yes, they were. Matthew Moore wrote an extensive article on the fact that we would turn the whole process upside down. This legislation purports to do that, but it does not. That is a shame. The object of the bills is to provide for access to be given to government information on the basis of a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. That theme runs through the framework of the legislation but obviously it quickly gets into a number of exemptions.

The quick question is whether the Premier, whether the Government, is serious about this whole issue. This is a lot of legislation—many members on this side of the House have used the word culture—that purports to change the culture of this Government in New South Wales. Well, we do not trust you. We do not think that is going to happen. This should be about transparency and honesty. I cannot see that coming through. At the same time that the Premier announced he was going to turn the freedom of information laws upside down, he also announced the end of spin. That is embarrassing these days. That was back in September and here we are in June and the world has gone back to spinning wildly.

Culture is the most important word in this debate. Sadly, this can be seen as a stunt. If the Premier wants this legislation to be taken seriously he should do something that will really cut through and be symbolic so that we have a government interested, at least for the next 21 months, in transparency and honesty. There are many things he can do. One of the things we were going to do, and I have raised this a number of times in this House, was stop the hush money. Millions of taxpayers' dollars are used to settle various matters in this State and always there is a confidentiality clause—the hush-money clause. If the Premier is serious about not burying information and being open about government, he should get rid of those confidentiality clauses, the hush-money clauses, in those contracts. What about whistleblowers? A good start would be to protect whistleblowers.

Mr Frank Terenzini: We are doing that.

Mr PETER DEBNAM: No, you are not doing that and you have not done that for 14 years. You have done everything but kill the whistleblowers. The most recent example—

Mr Barry Collier: Point of order: Mr Acting-Speaker, I ask that you bring the member back to the leave of the bills. It is inappropriate for him to use words like "killing people" in this Chamber. He is completely out of order.

ACTING-SPEAKER (Mr Thomas George): Order! I have listened carefully to the member for Vaucluse and he used the term "everything but kill". I ask the member for Vaucluse to confine his comments to the bills. Members will cease interjecting.

Mr PETER DEBNAM: I agree. The bills are supposed to be about transparency and honesty. How can one not say that whistleblowers are not part of that? Clearly they are involved in this change of culture that Premier Rees is talking about. If the Premier is serious about turning the freedom of information laws upside down, and if, after 14 years, he is also going to protect whistleblowers and do something symbolic, he should do something for Gillian Sneddon. The Government has all but crucified that woman in the last couple of years. The Government should also get rid of the hush money.

For 14 years the Opposition has said that if the Government wants to open up information, it should do something about the biggest issue in New South Wales. From a dollar point of view, that is the infrastructure plan. The Government should make that information public by putting it on the website, which is what I suggested in 1998. The technology is available to do that. It could put all its projects on the website, whether they are approved and financed, and give a progress report on each of them. It is entirely within the Government's capability to do that in the next month. It is entirely within the Government's capability to do something about whistleblowers within the next month, if it wants to do something symbolic. It is also within its ability to get rid of the hush money, if it wants to do something symbolic and convince the people of New South Wales that Premier Nathan Rees is trying to be transparent and honest.

As the shadow Minister for Transport said, if the Government wants to do something that gives a green light to changing the culture of this Government it should answer the questions on notice. That is very simple. Every day hundreds of questions on notice seek very basic information on the workings of government and data. Anyone looking through today's Questions and Answers paper will see by the very few answers that this Government, as a rule, never answers questions. If the Premier is talking about changing the culture of this Government, why wait until this legislation is enacted? Why does he not walk into the House tomorrow during question time and announce that the culture has changed; that he is going to do his damnedest in question time to answer the very few questions—four or five—we put to him on a sitting day and that he will ensure that Ministers answer questions on notice. If he cannot do that, then this is a joke.

Mr Barry Collier: Point of order: The bills are not about parliamentary procedure. The bills do not apply to Parliament. Again I ask that the member be brought back to the leave of the bills.

Mr PETER DEBNAM: I have finished.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [6.42 p.m.], in reply: I thank the Leader of the Opposition, the members for Maitland, Sydney, Davidson, Coogee, Ballina, Rockdale, Lismore, Willoughby, Castle Hill, Pittwater and Vaucluse for their contributions to the debate. I note that the Leader of the Opposition welcomed the legislation and certainly did not oppose it, contrary to the member for Willoughby, who actually called it a stunt. Perhaps if she caught trains more often she would not make as many freedom of information applications. The chairman of the Legislation Review Committee also advised me in the Chamber tonight that his committee gives the legislation a clean bill of health. I note that in his rant—I can only call it a rant—the Leader of the Opposition made the comment that he expects to be elected in 2011. That is the same sort of arrogance that Mr Ron Phillips displayed in 1999 and look what happened to him!

Mr John Williams: What?

Mr BARRY COLLIER: I am here. I take this opportunity to thank all those who participated in the debate outside this place, including those who have made submissions on the draft exposure bills. I shall reply to some of the comments raised by members opposite. With respect to comments by the Leader of the Opposition on reforms in other jurisdictions, it is important to realise that these reforms go further than many of the reforms now being proposed in other Australian jurisdictions. In fact, New South Wales will be the only jurisdiction with a statutory provision that provides that public servants are not subject to ministerial direction and control. New South Wales will also be the only jurisdiction with statutory offences for public officials who deliberately make unlawful decisions. It will be the only jurisdiction with a statutory offence for public officials, including Ministers, who unlawfully direct or seek to influence decisions. The legislation gives New South Wales the most progressive freedom of information laws in the country.

In relation to funding, the Premier has announced a minimum funding commitment for the Information Commissioner of at least $3 million in this coming year and $4 million on an ongoing annual basis. That is a guaranteed minimum. It is difficult to make direct comparisons with other jurisdictions. Commissioners in different jurisdictions have different functions, and there is obviously a difference in the number of freedom of information applications. The Commonwealth Government recently announced funding for its proposed Information Commissioner of around $5 million a year. Queensland has budgeted around $2 million. What may be a more meaningful comparison is to look at the new Information Commissioner's funding compared with what the Ombudsman currently spends on freedom of information functions. On that basis, the new funding announced by the Premier represents an increase of around 700 per cent.

The Leader of the Opposition, the member for Sydney and the member for Lismore raised the Ombudsman's recommendation for the Information Commissioner to be established in his office. The member for Coogee gave an excellent response. The Government considers that establishing the office of the Information Commissioner as a separate, independent office will give the new office the profile and status it requires to do its job effectively. It also recognises that the functions of the Information Commissioner extend significantly beyond the complaints-handling focus of the Ombudsman. The Information Commissioner is to be a champion of open government. Its role is not only to undertake reviews and deal with complaints but also to promote best practice and to work constructively with agencies to develop information disclosure, policies and practices.

The Law Reform Commission, the Privacy Commissioner, the Law Society of New South Wales and a number of other key stakeholders have strongly supported the establishment of a separate office. Although there may be some marginal cost savings in establishing the office with the Ombudsman, the Government does not consider that these reforms should be driven principally by cost. Importantly, establishing a separate office will now open the way for combining in one office both the Privacy Commissioner and the Information Commissioner. This makes sense, given that the public's right to know and the public's right to privacy are intimately linked. A proposal to combine the two offices will be put forward once the Law Reform Commission has completed its current review of privacy legislation.

With respect to the appointment and removal of the Information Commissioner, the Information Commissioner will be independent of the Government and will be appointed in exactly the same way as the Ombudsman. Just like the Ombudsman, all appointments are subject to veto by the joint parliamentary committee. The Information Commissioner can be removed only on an address by both Houses of Parliament. This is in line with the Ombudsman. There is no power for the Government to remove the Information Commissioner. The bills contain a limited power to suspend the commissioner temporarily, pending consideration of a parliamentary resolution for removal. Although one would like to think that such a situation would never arise, it is possible that something could happen on a non-sitting day that would justify removing a commissioner. The suspension power is available as a temporary measure until Parliament can decide the issue. A similar suspension power already applies in the same way to the Auditor-General. It does not affect the independence of the office holder in any way.

The Leader of the Opposition, the member for Sydney and a number of other members believe that Cabinet protection should last for only eight years, that is, two terms of government, rather than 10 years. The Government does not support the Opposition's proposal to reduce the Cabinet information period from ten years to eight years. The idea that the protection of Cabinet confidentiality should be based on the political cycle demonstrates a flawed understanding of what the protection is all about. The 10 year period was chosen and is emerging as a generally agreed standard in most Australian jurisdictions as the period of time after which information contained in documents is unlikely to be of continuing sensitivity. That is because after 10 years the relevant decisions will most likely have been fully implemented or otherwise resolved. The confidentiality of Cabinet documents is not about protecting particular governments. Accordingly, the length of time for which Cabinet information is protected should not be tied to the political cycle. Doing so would send entirely the wrong message.

I thank the member for Sydney for her support for the legislation and acknowledge her longstanding interest in open government. I note the bill retains the contract disclosure provisions introduced following a private member's bill from the member for Sydney in 2007. Indeed, the Government is extending those provisions to local authorities and State-owned corporations. The member for Sydney raised a concern about the limited search functions of the government tender website. This feedback was also provided in one of the submissions on the Government's exposure draft bills. The Government has referred these comments to the Department of Commerce to consider any improvements that could be made. Once appointed, the Information Commissioner will also be charged with the function of assisting agencies to proactively release information in a useful and user-friendly way.

The member for Davidson spoke about future reforms. The member should note that the New South Wales Law Reform Commission is currently undertaking a review of privacy laws. The Attorney General recently extended the commission's terms of reference. In particular, the commission has been asked to consider policies and practices concerning the interrelationships between privacy protection and disclosure under freedom of information legislation. No doubt in due course further reforms will arise from the work of the Law Reform Commission. One proposal that the Government has already flagged is the future merger of the Office of Privacy Commissioner and the Information Commissioner. However, the Government considers that the landmark reforms proposed in the bills currently before the House are too important to be delayed.

The Leader of the Opposition and the member for Davidson raised the question of the release of Cabinet documents. The confidentiality of Cabinet is a cornerstone of our system of responsible government and parliamentary democracy. Anyone who says that Cabinet documents should be released automatically, without limits, does not understand our Westminster system of government or simply wants to undermine it. These bills do, however, give the Premier and Cabinet expressed power to authorise the release of Cabinet documents where this can be done without compromising the operation of Cabinet, or the principles of ministerial responsibility. The member for Ballina said if information falls within schedule 1 then the decision is unreviewable. That is simply not the case. Decisions by agencies as to whether documents fall within schedule 1 is a reviewable decision. The information listed in schedule 1 is information for which there is conclusively presumed to be an overriding public interest against disclosure. This is because it is the type of information that public servants in agencies should not be releasing.

They should not be releasing information about the identity of jurors, or, for example, the details of witnesses in the witness protection scheme. They should not release Cabinet documents without the approval of the Premier or the Cabinet. The member also raised a question of legally privileged documents. For the first time, these bills impose a statutory obligation on agencies to consider waiving privilege before refusing to release privileged documents. Under the current Freedom of Information Act privileged documents are automatically exempt. The member for Willoughby thinks this legislation is a stunt, despite the fact that her leader supports it. The member should note that the Ombudsman made 88 recommendations, 80 of which were agreed to by the Government. The Government deferred consideration of three recommendations, Nos 8, 12 and 86, pending the completion of the review by the New South Wales Law Reform Commission of privacy laws. The Government did not agree to two recommendations in full, Nos 29 and 84, and two recommendations in part, Nos 13 and 60. The Government will give further consideration to the Ombudsman's recommendation No. 42. The Government has responsibility for law making, not the Ombudsman, and every recommendation is assessed on its merits. Not all of the recommendations, in the Government's view, warranted adoption.

The member for Willoughby said that these bills do not mark a paradigm shift because they were a stunt, but the change in the bills is more than symbolic. The new bills address many of the concerns raised by the member for Willoughby: first, a statutory obligation to acknowledge applications within five days; second, a statutory obligation to date all notices given by applicants; third, a firm deadline of 20 working days within which a decision must be made; and fourth, enforcement mechanisms where that is not done. If an application is not decided in that time the applicant can immediately seek review by the Information Commissioner or the Administrative Decisions Tribunal.

This legislation is not merely an upgrading of the current Freedom of Information Act. It is an entirely new model. It is a fresh approach. It is not a stunt, as described by the member for Willoughby. The bills are the product of a significant amount of work and consultation. In his report the Ombudsman undertook a thorough public consultation process. More than 70 submissions were received. I note for the benefit of the member for Davidson that the Liberal-Nationals made a submission on the Ombudsman's report that was considered. The Government also undertook a public consultation process in developing these bills. On 6 May the Premier tabled exposure drafts of the bills. Some 57 submissions were received on these bills, including 20 submissions from individuals and non-government organisations, 12 from government agencies, 20 from local councils and 2 from universities. The submissions were carefully considered in drafting the legislation, and changes have been made to the exposure draft bills where appropriate.

One of the most significant reforms is the establishment of an independent office of Information Commissioner. The independence of the office will give it the profile and status it requires to do its job effectively. It recognises that the functions of the Information Commissioner extend significantly beyond the complaints-handling focus of the Ombudsman. The Information Commissioner is to be a champion of open government. Its role is not only to undertake reviews and deal with complaints but also to promote best practice and work constructively with agencies to develop information disclosure policies and practices. The Premier has announced a minimum funding commitment for the Information Commissioner of at least $3 million in this coming year, and $4 million on an ongoing annual basis. That is a guaranteed minimum. Fees and charges under the Freedom of Information Act have not been increased for 20 years and we are not increasing them now. The current fees represent only a small percentage of the actual costs to government of dealing with access applications. The fees are fair, they are prescribed in the legislation, and they ensure that applicants are genuine.

These bills implement a twenty-first century model based on the concept of information, rather than the old-fashioned focus on documents. It is a model that emphasises the routine and proactive release of information. It will mean that the formal and rigid processes of making an access application will become a last resort. And it is a model that places the public interest as its central, unifying feature, including a clear presumption that more disclosure, greater transparency and enhanced openness is always in the public interest. These bills ensure that New South Wales will have the most progressive regime for public access to government information in the country. I commend the bills to the House.

Question—That these bills be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bills agreed to in principle.


Bills declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bills.