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State Records Amendment Bill

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About this Item
Subjects -  Libraries and Archives; Freedom of Information
Speakers - Burnswoods The Hon Jan; Rhiannon Ms Lee; Chesterfield-Evans The Hon Dr Arthur; Tsang The Hon Henry; Harwin The Hon Don; Chairman
Business - Bill, Second Reading, In Committee


    STATE RECORDS AMENDMENT BILL
Page: 14293


    Second Reading

    Debate resumed from an earlier hour.

    The Hon. JAN BURNSWOODS [5.03 p.m.]: Before proceedings were interrupted for the taking of questions I said that I strongly supported the State Records Amendment Bill. This bill is a routine bill that follows a five-yearly review of the State Records Act 1998 and involves a substantial rewriting of the State Archives Act 1978. The Hon. Don Harwin, who spoke on behalf of the Opposition, said that he supported the bill, as did other honourable members. The Hon. Don Harwin referred to education records, with which I am familiar. Many years ago Jim Fletcher, a fellow worker in the education department, and I were permitted—somewhat unusually under the principles of records and archives management—to rearrange school records in a form that I believe has proved useful for a large number of researchers. I have heard that the most frequently used original records held by the State Records Authority were a collection of books formerly located in schools, including admission registers, punishment books, lesson books, class rolls and so on. Those education records form an important part of the categories of records held by the State Records Authority.

    I do not think it is necessary to go through most of the amendments that this bill seeks to make because the Hon. Don Harwin, on behalf of the Opposition, and speakers such as Reverend the Hon. Dr Gordon Moyes have already gone through them. However, I wish to comment on what I believe to be some concerns about the bill and to refer to some amendments that will be moved in Committee. I draw attention to the explicit presumption in the bill relating to the public access of 30-year-old records, as some people are concerned about that issue. Honourable members have received correspondence from the Australian Privacy Foundation relating to reducing from one month to 14 days the period in which a public office can deal with an issue. I refer from experience to an example that strongly supports the amendments in the bill. In theory the Australian Privacy Foundation has some concerns but in practice I do not think those concerns will cause much trouble. Last year I wrote an article for the Australian Dictionary of Biography. That article was about Ken Booth, a former Treasurer of New South Wales, whose short biography will appear in volume No. 17 of the Australian Dictionary of Biography. I have also written other articles.

    Ken Booth was a teacher and an employee of the department, but there was some discrepancy in the published records relating to the period in which he worked in the new Murrumbidgee or Riverina office and in the college that later became the University of Newcastle. Ken Booth was also associated with the technical college. I sought to look up the teacher records with which I was familiar in the period in which I worked with them in the education department. Although Ken Booth had been dead for many years and the period in question related to 1951 or 1952, I was surprised to discover that the department made no public access order in relation to these records and I could not look at them. Eventually the matter was resolved and I was able to look at the records. The department did not get anyone to examine those categories of records and to make the necessary order. Bureaucracies always have a lot of priorities and they tend not to put a great deal of resources into what they consider to be lower priorities. Because they did not have to do anything, they failed to examine the category of records and to make the necessary order. Some of the records in question dealt with people who, if they had been alive, would have been about 120 today. People die, they retire and they resign, but a set of records may go on for decades. I gave just one example but there are many others.

    In theory people believe that privacy matters are important—and they are—and that 14 days is a relatively short period within which to deal with some issues. In practice the categories of records that we are dealing with—in all cases they are more than 30 years old—remain in public offices rather than being transferred to the State Records Authority as they form part of a series of records that cover a substantial period. That is an example of what happens. It is a good idea to shorten that period as we are moving towards an explicit presumption in favour of public access. Some departments—and education is certainly not one of them—have been able to hide behind current rules, sometimes out of laziness and sometimes for other reasons. There are other categories of records that are older than 30 years, for example, records relating to adoption, to certain matters associated with child protection and to crimes against children. There are strong reasons for keeping records for a longer period because of their sensitivity and because of the harm that they could do to families and to those associated with them. But the rules provide for that to be done adequately.

    This is a sensible bill. This is an example of a five-yearly legislative review working well. A lot has happened in the State Records Authority. We have seen an extension of its authority to universities and to local government. An enormous amount of work has been done over the past few years. I pay tribute to David Roberts, Director of the State Records Authority, who is in the gallery, Shirley Fitzgerald, the chair of the board, and other board members. I know from my experience in representing Parliament on the board that they have worked very hard in an important area of State bureaucracy that oversees not only the State's heritage but also records that are often of urgent, day-to-day significance. I suspect that State Records New South Wales is one of those State organisations that is little known and little heralded. We are fortunate to have that authority and its officers, who simply get on with the job and do it well.

    Ms LEE RHIANNON [5.10 p.m.]: The State Records Act 1998 aims to manage and protect public records, providing mechanisms to enable the public to access these records in certain circumstances. The Greens acknowledge that the thrust of the Act is to foster transparency and accountability in government. We welcome the explicit presumption of the State Records Amendment Bill in favour of openness regarding records that are more than 30 years old and improvements to review mechanisms. However, the Greens also recognise the need to protect people's privacy adequately. Certain proposals in this bill would increase the possibility that sensitive personal information in some public records would be released. Accordingly, we have drafted amendments that I will move and explain in Committee.

    Two provisions in particular would effectively undermine the privacy protection that individuals now have as a result of the New South Wales Privacy and Personal Information Protection Act and the Health Records and Information Privacy Act. This matter was brought to our attention by the Australian Privacy Foundation, a non-government organisation dedicated to protecting the privacy rights of Australians. The foundation's role is of increasing importance considering the wrecker job that the Carr Government has done on Privacy NSW in recent years. It is extraordinary that it is nearly two years since Chris Puplick departed and we are onto our third acting part-time commissioner on a rolling three-month agreement, with no full-time privacy commissioner in sight, as promised by the Government. It is another broken promise and an absolute disgrace.

    I thank the Australian Privacy Foundation for its efforts and note that my remarks today are based on much of its advice. Records governed by the State Records Act include patient records from psychiatric hospitals and the employment and service records of employees and volunteers. The importance of employees' records is emphasised by the issue of the Aborigines who did not receive their full pay and entitlements and who are now in a position to claim them because some of the relevant records were kept. Current records could play a monumentally important role in future so it is critical that we get the laws right now. The submission of Privacy NSW to the review of the State Records Act that led to this bill noted that:

    State records have a much greater focus [than Federal records] on the direct provision of services to clients … [and] as a result the breadth and sensitivity of personal information held in State records poses a greater range of privacy risks if disclosed.

    The Greens do not believe that certain provisions in the bill, which we will address in Committee, have been justified convincingly either in the report of the review of the State Records Act or by the Minister. The amendments have considerable privacy risks while delivering no appreciable benefits in terms of improving government transparency or accountability. The Carr Government's disregard for people's rights to privacy is most disappointing. The Premier, in this bill and in his running down of Privacy NSW, shows that he is unwilling to support simple protection for people's rights that have been hard won over many decades. Curiously, the proposed "early access" scheme amendment, which allows agencies to provide access to information in records before the expiration of 30 years—and which the Greens will seek to improve through amendment in Committee—was not even recommended in the report of the review of the State Records Act that was tabled in Parliament. This review was not independent but conducted by the State Records Authority. The report of the review says that 32 submissions were received from "a range of groups and individuals" and that public meetings were held. However, we were not given details of who provided feedback to the review or how the views expressed contributed to the final recommendations. The report includes an astonishingly vague recommendation—No. 7—that says:

    … it is proposed to make a small number of minor amendments to clarify certain existing provisions and facilitate operations.
    What in heavens does that mean? Could anything be more unclear? Perhaps that is the door this proposal snuck through. I am not sure, but we are certainly none the wiser from reading the recommendation. I look forward to moving the Greens amendments in Committee, where we will make a positive contribution to improving this bill.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.15 p.m.]: The State Records Amendment Bill is a great disappointment. It is worrying how little change it makes with how much fuss. I will explain why that is worrying later. The State Records Bill was introduced in 1998 to replace the Archives Act 1960. The second reading speech of the then Minister Assisting the Premier on the Arts, the current Attorney General, said that there is a perception that:

    ... governments and other public institutions should be more accountable, coupled with a recognition by several royal commissions in New South Wales and interstate of the link between accountability and good record keeping.

    Indeed, one of the stated objects of the State Records Act is:

    … to make provision for the creation, management and protection of the records of public offices of the State and to provide for public access to those records.

    Do I hear this Government championing the cause of open government? That is not likely. Object (d) of the bill is:

    … to explicitly state that there is a presumption in favour of public access to State records that are at least 30 years old.

    The only thing wrong with that statement is the inclusion of the "at least 30 years" proviso. In Committee I will move a simple amendment to the bill that will seek to change "30 years" to "30 days". This will have the effect of allowing New South Wales to have truly open government, as is the case in New Zealand. The bill will state explicitly that there is a presumption in favour of public access to State records that are at least 30 days old. In my speech during the second reading debate on the Government (Open Market Competition) Bill, which was passed by this House on 5 September 2002, I outlined the problems of secrecy in this State. I mentioned that problems with the Federal freedom of information [FOI] regime are reflected in the regimes of our States, including New South Wales. These problems include a lack of independent oversight of the FOI process, a persistent culture of secrecy, prohibitive charges and the excessive use of exemptions—especially commercial in confidence and Cabinet in confidence.

    Strangely, New Zealand has led the way in providing government information to the public. The Official Information Act came into force in 1982—23 years ago. It was widened in 1987 and then reviewed in 1998 but not amended. The Chief Ombudsman of New Zealand, Sir Brian Elwood, spoke at an open government forum that I organised in November 2002 and praised the success of the New Zealand legislation. He said the usual concerns about the sky falling in were expressed when the legislation was introduced—business claimed that it would collapse, the Government was not supposed to survive and so on. It was claimed that the country would become unworkable and that individual privacy would be decimated. Of course, none of that happened and the regime works very well. I have argued for a long time that the paradigm of this country's FOI legislation is wrong: the presumption is non-disclosure unless there is a reason to disclose. The New Zealand legislation turns this presumption around so that information is made available unless there is good reason under the Act to withhold it. Claims of commercial in confidence or Cabinet in confidence are not enough. As the years of the Carr regime have dragged on, it has become more and more apparent that less and less important information is seeing the light of day.

    Requests for information are routinely denied, usually with the pathetic cry that the information is commercial-in-confidence or a Cabinet document. The Government (Open Market Competition) Bill was not as extensive as the New Zealand legislation, which I was not aware of at the time because I had not yet conducted the seminar. The bill, which merely looked at government contracts and the accountability of people getting government money, was introduced by Ms Clover Moore in the lower House and was sent to the Public Accounts Committee by the Government. The Public Accounts Committee travelled to Great Britain and the United States of America, but it did not travel to New Zealand. I suggested that is where the action was. However, I did not do so in an official conversation or correspondence. The Public Accounts Committee decided, without much noise from the Opposition, that no changes would be made to the existing freedom of information regime. I was disappointed when the Government did not support the bill introduced by Ms Clover Moore in the lower House, which was my legislation.

    It is important to protect documents, and the best way to protect them is to make them available to the public as soon as possible. A great amount of the work of the ICAC, the committees of this House and the Auditor-General is taken up trying to get to the bottom of what decisions are made, who made them and who benefited from them, because all the documents are secret. There is no better guarantee of confident administration than transparency. Recently there have been serious incidents of documents being destroyed or going missing. The tobacco industry destroyed its documentary evidence, which prevented a plaintiff from pursuing her claim of health damage from the tobacco industry—and they were not even public documents. The industry had a deadwood document policy, as it was called, to get rid of the evidence.

    In the United States of America a heroic man whose job was to go through the documents and find things that might be incriminating to the tobacco industry for its nefarious practices was so horrified by what he was being asked to destroy, it is believed, he leaked the documents. Those documents have formed the basis of a large amount of document disclosure in the United States of America, which have formed the basis of a number of tort law suits that are finally bringing the tobacco industry to court. Ian Callinan, QC, was appointed to the High Court after some somewhat controversial actions in relation to the process. The High Court said that the tobacco industry could not be prosecuted for destroying documents. In short, the destruction of the documents was helpful to the industry, and it got away with it.

    Documents are important. People have told me about their difficulty getting documents in relation to the closure of Beacon Hill High School. As I have said before, documents in relation to the sale of Sydney markets—which was valued at $202 million in 1992 and sold for $83 million in 2002—have been extremely difficult to obtain. A number of cases have been taken on by Cianfrano in the Administrative Decisions Tribunal [ADT] against a number of government departments. The Government has tried to hide the documents. Cianfrano, an orchardist from Orange, beat the Queen's Counsel appearing for the Government in the ADT. Fortunately, the ADT proceedings were less expensive than a court case, although mention has been made of an appeal to the Supreme Court.

    This Government sells our assets and hides the documents about it. Therefore, when the Government introduces a State Records Amendment Bill one ought to look very closely at it. Documents relating to the Honeysuckle project in Newcastle, the M5, the M2 and the cross-city tunnel should be made available to the taxpayers of this State. They want to know how and where the Government is spending their money. They also want to know which of the assets the Government is managing for the future is now being flogged off, as though the Government were the owner. In December 2002 Ross Coulthart, an investigative journalist with Channel 9, spoke at my open government seminar. He pointed out that the treatment of documents in the United States of America is much better than in New South Wales. He said that documents need to be organised online in a systemic fashion. Why are the documents not classified according to a master classification and made available online so that people can search for them in a systematic fashion?

    People can waste huge amounts of money looking for documents in the New South Wales system. Indeed, if the relevant department wants to be obstructive it can very easily do so. Again, this issue is conspicuously missing in the Act. This bill follows the report to Parliament of May 2004 carried out by State Records New South Wales in relation to the review of the State Records Act. Effectively, State Records New South Wales was reviewing itself and it came up with fairly minimal recommendations, as one would expect. One of the recommendations was an extension of the limitation period from six months to two years to prosecute unauthorised disposal. However, the important caveat is found in the explanatory note, which states:

    Section 21 (2) of the Act provides that a person does not commit an offence of unauthorised abandonment, disposal, transfer, removal from the State, damage, alteration or neglect of a State record by doing anything in accordance with "normal administrative practice in a public office": within the meaning of section 22. Section 22 describes what is considered to be done in accordance with normal administrative practice and refers to Schedule 1 to the Act, which contains guidelines on some aspects of normal administrative practice. The guidelines do not limit what constitutes normal administrative practice.

    That would presumably be defined in law on a case-by-case basis. The explanatory note continues:

    Schedule 1 [5] provides for those guidelines to be prescribed by the regulations rather than be in Schedule 1 to the Act.

    Schedule 1 [21] repeals the guidelines in Schedule 1 to the Act.

    The bottom line is that under this bill normal administrative practice will not be governed by schedule 1 to the Act, but by a regulation that we have not seen yet. This is the Trojan horse of this legislation. It is all about redefining "normal administrative practice" in a regulation that the Government can change at whim. That is worrying. I foreshadow that I will move an amendment in Committee to remove that provision so that the definition of "normal administrative practice" remains in schedule 1 to the Act and is not some guideline or regulation that can be brought in whenever the Government wants. My foreshadowed amendment is especially important given the Government's appalling track record in relation to hiding information.

    I was disappointed in the speech made by Mrs Jillian Skinner, a member of the Legislative Assembly, on the bill. She said the bill would enable happy little histories of local schools to come to light more easily after 30 years. It is, in fact, a much more dangerous bill than that. After 30 years there is a presumption of availability which, under a closed public access directive, has an interesting Kafkaesque ring to it. The Minister has the discretion to hide it. This bill provides that after 30 years the presumption is that documents are obtainable, but the Minister can still stop it. If the Minister can stop it, why not make it 30 days or 30 minutes? The Minister will have absolute control over the information. There is a Trojan horse in the normal administrative practice guidelines. I am happy because I have an amendment that deals with that Trojan horse. I commend my foreshadowed amendment to the House.

    The Greens spoke about privacy, a very important issue. Chris Puplick, an energetic Privacy Commissioner, did a very good job addressing the effects of technological advances in database searches and dealing with cameras on every street corner recording who a citizen was with, and when. He estimated that each day a person walking from Wynyard station through the city to Parliament House would be photographed 50 times by closed-circuit television cameras. That is the extent of one's privacy in respect of freedom of association and so on. Privacy often has been seen as being opposed to open government. The Government is very concerned about privacy when that enables it to hide information that, under open government, might trample some person's privacy. The only privacy consideration with most policy information is to identify the person who made a poor decision—for example, on the sale of Sydney markets—and to follow up on the question of whether a deal was good or not. Of course, in that instance it was not, and I will have more to say about that at a later date.

    So the idea that privacy is in opposition to open government is generally without merit. Nothing in the amendments that I will propose seeks to remove provisions of the Privacy Act. If the Government is so concerned about privacy, why does it not appoint a privacy commissioner and have a sensible discussion about this bill and the implications for privacy of moving more towards open government? It has not even considered that matter. In fact, this bill's importance comes from what it does not contain.

    The other matter I want to talk about is technology. We now have online more and more records and larger volumes of information. The first thing to do would be to put government files online as they are created, so that a citizen can find out what files a department has on them. Given that departments supposedly are acting in our interests, regulations or the Act should contain provisions requiring that this material be available online to facilitate searches, as well as contain defining provisions relating to access to that information. The bill does not contain provision for technology that would facilitate access to such information. It does not really deal with current circumstances. It is about what will happen in 30 years time unless the Minister makes a closed to public access directive.

    The bill also provides for more corporate aims in terms of recovery of moneys. That is something of a worry in the sense that, if the primary objective of this legislation becomes raising money from the provision of information, then fees for applications made under the freedom of information legislation—which are already outrageously priced—will be even more expensive. Last week I made a number of points about a State property assets register. This is a major State resource, and we need to know what is going on with property in New South Wales. It would appear that the Government does not want to make that information available. The reason, I believe, is that it wants to flog off some of that property. The Government states that individual requests can be made. Of course, one has to pay for the provision of that information. In other words, access to information will be a large source of revenue, rather than a public right or something done for the public good. The worry is that State Records New South Wales will be a cash cow, giving out little bits of information—even records that are 30 years old! One cannot help wondering whether the Government is proposing another revenue grab, as it often does.

    The bill does not have a lot to recommend it. I will propose amendments to fix it by shortening the time after which State records must be made available, so that we can get real information. That would go some way to ensuring that this bill will facilitate access to information. I propose changing that period from 30 years to 30 days. A Minister who does not like that information becoming available after 30 days may still move to bottle up that information—as is very frequently done in New South Wales. In New Zealand all information is public unless an application is made to the Ombudsman.

    A Minister who does not like the Ombudsman's adjudication can approach the Supreme Court for an order that will keep information secret. That has worked very well in New Zealand since 1982. So the idea that my proposal would not work is nonsense. Normal privacy laws will still apply. I propose shortening the period from 30 years to 30 days. This will get rid of the Trojan horse of regulation and introduce more convenient and normal administrative practice. Honourable members who wish this bill passed should support my amendments, otherwise I am afraid the bill will be of no use at all.

    The Hon. HENRY TSANG [Parliamentary Secretary] [5.35 p.m.], in reply: I thank honourable members for their contributions to the debate. Public access to the records of government is a fundamental right in a democracy. The State Records Act 1998 promotes the principles of accountability and access by requiring public offices to create records of their business and administrative transactions and ensure that records of significant value are preserved. The current Act provides for public access to be given to State records more than 30 years old, by way of the public office making an open to public access direction. The public office also has the option of issuing a closed to public access direction where appropriate. The amendments proposed by the bill will strengthen this process by explicitly stating that there is a presumption in favour of public access to State records that are at least 30 years old.

    The bill introduces a requirement that public offices provide reasons for giving closed to public access directions and will establish a mechanism for the review of access directions. The bill provides for State records that are at least 30 years old and not the subject of an access direction to be made available for public access, unless a closed to public access direction is given to them, within 14 days—rather than the current one month—after an application to access the record is made. In addition, the bill clarifies that public offices providing appropriate early access to State records under the Act are protected by the liability provisions of the Act and introduces an additional safeguard requiring public offices to have regard to the Attorney General's guidelines in assessing whether to authorise early public access. The bill supports the key principles of the Act, streamlines its operations and updates relevant provisions. I commend the bill to the House.

    Motion agreed to.

    Bill read a second time.

    In Committee

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.39 p.m.], by leave: I move Australian Democrats amendments Nos 1 and 2 in globo:

    No. 1 Page 3, schedule 1. Insert after line 13:

    [4] Sections 5 (2), 50 and 73 (4) and clause 7 of Schedule 3

    Omit "30 years" wherever occurring. Insert instead "30 days".

    No. 2 Page 3, schedule 1. Insert after line 21:

    [6] Part 6, heading

    Omit "30 years". Insert "30 days".

    The essence of these amendments is to shorten the time in which the system becomes open. The bill provides a presumption of access to the public in 30 years, provided that the Minister does not use his or her discretionary power to make a closed public access [CPA] directive to keep secret any document or documents the Minister does not want made public. The amendments provide a presumption of public access to documents in 30 days, which would ensure transparency in government in New South Wales and thus improve infinitely administration in this State. However, the provisions of the privacy and the health legislation would continue to apply to individuals. I urge honourable members to support the amendments because they will change the approach to transparency from an assumption of secrecy to an assumption of openness. This approach has worked perfectly well in New Zealand for 23 years. I commend the amendments to the Committee.

    The Hon. DON HARWIN [5.40 p.m.]: The Opposition will not support the amendments. Earlier I detailed at some length the review process and the breadth of consultation with affected stakeholders, all of whom signed off on the appropriateness of this provision, so that the Hon. Dr Arthur Chesterfield-Evans would understand why the Opposition could not support them. I am advised also that the Hon. Dr Arthur Chesterfield-Evans is wrong when he says that his amendments reflect the law in New Zealand. He is talking about freedom of information legislation, or the equivalent, in New Zealand. I have just been advised by the head of archives of the State Records Authority that archives legislation in New Zealand quite clearly has a 30-year provision. I ask the Hon. Dr Arthur Chesterfield-Evans to consider his position carefully. I have outlined in some detail why these amendments would be a silly rule for the State's collecting institutions and private collections of papers deposited by individuals and organisations. For those reasons the Opposition cannot support the amendments.

    The Hon. HENRY TSANG [Parliamentary Secretary] [5.42 p.m.]: The Government opposes the amendments moved by the Hon. Dr Arthur Chesterfield-Evans and thanks the Opposition for opposing them. Under the current State Records Act the statutory open access period provides for public access to State records that are more than 30 years old. The amendments of the Hon. Dr Arthur Chesterfield-Evans propose to change the open access period from 30 years to 30 days under the State Records Act. The Hon. Don Harwin is quite right: the intentions of the Hon. Dr Arthur Chesterfield-Evans are misplaced and a little confused. A statutory regime already exists to provide a right of public access to documents held by public agencies, regardless of the age of the document: the Freedom of Information Act.

    The Hon. Catherine Cusack: I do not think he referred to that.

    The Hon. HENRY TSANG: He should know that such a provision exists. The State Records Act does not override anything in the Freedom of Information Act, which enables people to access documents that are less than 30 years old. The State Records Act provides that documents more than 30 years old are in the open access period and, therefore, open to public access. The bill includes a presumption in favour of open access. The 30-year rule is the most common model governing public access in public records legislation in comparable jurisdictions elsewhere in Australia and overseas. Most sensitivities in public records have dissipated by this time. To provide, as the Australia Democrats have suggested, that all State records should be open to public access as soon as they are 30 days old would have serious privacy implications. Agencies would spend all their time issuing public access directions rather than focusing their efforts on core business. As members of the Committee can see, the proposed amendments are undesirable and should not be supported. The Government opposes the amendments.

    Reverend the Hon. FRED NILE [5.44 p.m.]: The Christian Democratic Party does not support the amendments, because they may hinder people using the archives system and prevent its operation.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS: [5.45 p.m.]: The idea that the State Records Amendment Bill is totally separate from freedom of information [FOI] legislation and that I should be barking up the FOI tree is interesting. State records are the material that FOI is all about because that is what people want to look at, not fossilised records that are 30 years old. The New Zealand legislation is the best because it is a change in the paradigm, which is what I am trying to achieve. Comparable jurisdictions are bumbling along with everything closed for 30 years unless otherwise demanded or conceded. I agree with the Minister that other jurisdictions provide for a period of 30 years. The standard is pretty low. I do not believe the New Zealand legislation was retrospective, although I would have to read its detail. I have never heard such a nonsense as the Government suggesting it is concerned about privacy issues.

    The Government has not appointed a permanent Privacy Commissioner. Instead it has renewed the contract of the temporary commissioner. Nothing in the recommendations of the report that seems to have been implemented in the bill reveals how much thought was given to privacy considerations. It is business as usual. Perhaps the idea that the Government would use all its efforts on closed public access [CPA] directives is true because it is so used to closed public access that Ministers might spend their entire day worrying about them. The Ombudsman, Brian Elwood, who gave a speech on the subject in the forum I organised in December 2000, said that when the legislation was first enacted his in tray was so full of requests for exemptions under freedom of information provisions because it provided transparency that he did not know what to do. His ambit position was to knock all of them back. They took him to the Supreme Court, which was the final arbiter—

    The CHAIR: Order! I remind the Hon. Dr Arthur Chesterfield-Evans that the Committee is considering the State Records Amendment Bill, not matters relating to the Privacy Commissioner.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I understand the point clearly. The Supreme Court ruled on openness. The few requests for exemptions he received after that were perfectly reasonable, and he granted most of them. The sky did not fall in once the paradigm had changed. The Ministers did not have to worry because even if people looked at the records it did not affect the function of the State. The idea that Ministers would spend their lives writing closed public access directives and worrying that all the information had to be kept private is a nonsense. The amendments certainly are shifting a paradigm, but that is their objective.

    Amendments negatived.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.49 p.m.], by leave: I move Australian Democrats amendments Nos 1, 2 and 3 in globo:

    No. 1 Page 3, schedule 1 [5], lines 19–21. Omit all words on those lines.

    No. 2 Page 6, schedule 1 [21], lines 23–25. Omit all words on those lines.

    No. 3 Long title. Omit "normal administrative practice,".

    This bill is analogous to a Trojan horse. The objective of my amendments is to take the Greeks out of the Trojan horse. The New South Wales Labor Government has a very bad record of maintaining openness. If anyone doubts that, I cite Cianfrano v Director-General, Premier's Department NSW and how energetically this Government tried to stop information from being revealed. The danger of this bill is that no-one can be penalised for destroying documents in accordance with normal administrative practice in a public office. Currently "normal administrative practice in a public office" is defined by schedule 1 to the Act. However, the measure in item [5] of schedule 1 to this bill provides that the guidelines for interpreting normal administrative practice will be prescribed by the regulations, rather than by schedule 1 to the Act. Moreover, item [5] of this bill repeals that part of section 22 (3) of the Act which refers to guidelines in the Act that define some aspects of normal administrative practice.

    In other words, the schedule in the Act that currently defines "normal administrative practice" will be repealed by this bill and regulations made by the Government will replace that definition. The Government will introduce regulations that will define "normal administrative practice". Given this Government's history of hiding relevant information from the public, that is very worrying. If members of this House do not want the Government to make regulations that will enable records to be destroyed under the definition of "normal administrative practice", they must support these amendments.

    The Hon. HENRY TSANG [Parliamentary Secretary] [5.51 p.m.]: Regarding the three further amendments moved by the Australian Democrats, I repeat that the legislation currently provides in the schedule to the Act guidelines that apply to normal administrative practice. As the guidelines form part of the legislation, it is difficult for them to be readily updated as business practices change and new issues arise. The bill proposes a more flexible approach whereby the guidelines in schedule 1 to the Act are to be repealed and guidelines will instead be prescribed by regulations, making them easier to update as required. The Government opposes the amendments.

    The Hon. DON HARWIN [5.52 p.m.]: I understand the concerns expressed by the Hon. Dr Arthur Chesterfield-Evans about the dangers of investing too much power in Executive Government over administrative procedure and basically about the strategy of gutting legislation and moving important details into regulations. However, I simply remind the Hon. Dr Arthur Chesterfield-Evans that it is always open to members of this Chamber, where the Government does not have the numbers, to move disallowance if he does not like the regulations. If the Hon. Dr Arthur Chesterfield-Evans decides that some parts of the guidelines relating to the normal administrative practices of State Records New South Wales and the regulations that give effect to that are unsatisfactory, he should approach the Opposition about it. Until then, the Opposition will not support his amendments.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.53 p.m.]: The point about regulations is that important matters slip through. At one stage I tried to have a table of contents included in the Government Gazette, given that the publication is pretty weighty and given that regulations slip through without being noticed. I was told that that could not be done because the gazette was compiled from a number of different departments. However, the computer program, Word, makes it very easy for headings in a standard font to be numbered and collated automatically and for a table of contents to be produced. The Government's regulations are hard to follow, they are easy to change and they are difficult for members of this House to detect. I believe that, given this Government's track record and its treatment of matters through regulation, guidelines should be enshrined in legislation. If it is awkward to change the definition of "normal administrative practice", that is a very good thing. I commend the amendments.

    Amendments negatived.

    Ms LEE RHIANNON [5.54 p.m.], by leave: I move Greens amendments Nos 1 and 3 in globo:

    No. 1 Page 4, schedule 1 [9], lines 8 and 9. Omit all words on those lines.

    No. 3 Page 8, schedule 1 [25], lines 5-9. Omit all words on those lines.
    The Greens amendments delete the proposal to amend the Act by shortening the time in which an agency is able to respond to a request to access a record which is more than 30 years old from one month to 14 days. The bill proposes to provide an automatic right to access records that are more than 30 years old when an agency is not able to consider the sensitivity of the records in less than 14 days. Up until now, people who may have wanted to examine records that are more than 30 years old might have been frustrated in their attempts to do so, not because agencies deliberately obstructed them but through agencies failing to make a decision about whether records should be open or closed. The review of the State Records Act sought to address this problem.

    The solution that the Government devised was to shorten the current time frame within which an agency must make an access decision from one month to two weeks. The Australian Privacy Foundation suggests that it appears that no genuine consideration was given to the reason for the existence of the problem before a solution to the problem was found. In the final report of the review, no reasons are given for shortening the time frame from one month to 14 days. In the Premier's second reading speech there is scant justification: he suggested that the bill is necessary to further streamline the process. The Privacy Commissioner stated in his submission to the review of the State Records Act:

    It seems premature to adopt amendments to ensure greater access without a more particular inquiry into the reasons why access directions have not been made in the majority of instances. If the explanation involves institutional inertia or a lack of resources, then it may be more appropriate to bring about change through training and support rather than a drastic change to conditions of access.

    The Greens believe that this bill represents a drastic change. The Privacy Commissioner opposed any proposal to provide faster access on the basis that it would be inconsistent with privacy legislation to put pressure on public authorities to disclose such records without the privacy implications for doing so being properly canvassed. He further stated that such an approach would lead to an increased risk of privacy invasive disclosures.

    By virtue of amending the principal Act by this bill, an agency will have only 14 days to respond to a request for access to a record that is more than 30 years old. Fourteen days is a short time and constitutes a significant change from the present period of one month. The Greens argue that it is a short time in which to do the job that is required and contrasts considerably with freedom of information legislation, which provides agencies with 21 days in which to respond, and sometimes longer if third parties are involved.

    I have outlined some of the reasons why the Greens amendments are definitely needed. The Greens clearly support the Australian Privacy Foundation's proposal, which urges the Government to allow agencies more time in which to complete the enormous task of reviewing and categorising records. The Greens wonder why the Government seeks to amend the bill in this manner. The Greens believe that the change is unnecessary. I urge honourable members to support the Greens amendments.

    The Hon. HENRY TSANG [Parliamentary Secretary] [5.58 p.m.]: The Government opposes the amendments moved by the Greens. The bill provides that State records that are at least 30 years old and are not the subject of an access direction are to be made available for public access unless a closed to public access direction is given to them within 14 days, rather than the current one month, after an application has been made. The Greens seek to delete the amendments that shorten the time an agency has to respond to a request for access. They seek to have the one-month turnaround reinstated.

    The intention of the bill is to streamline the process by providing that public offices have 14 days rather than one month to respond to a request for access. With respect, the suggestion that these amendments may have negative privacy implications is unfounded. The approach is a workable "risk-managed procedure" that is able to be undertaken effectively within the proposed 14-day period. Fourteen days is sufficient time. This does not put "pressure on agencies" as alleged by the Greens. Access directions for State records in the open access period usually cover whole classes or groups of records. The directions are made on the basis of the likely known content of records, not by item vetting. Therefore, the streamlining process should not negatively impact upon agencies in this process.

    Furthermore, there are four safeguards built into section 54 (3). The first is that the section applies only to records over 30 years old that are not yet the subject of an access direction. Most records are no longer considered sensitive after 30 years have passed. The privacy concerns are far less acute. The second is that the Act encourages agencies to issue an access direction prior to the record reaching the 30-year period. Many records will already be the subject of an access direction, including closed to public access directions where there are privacy concerns with the record. If an access direction has already been issued, section 54 is of no relevance. The section is only relevant where the record is over 30 years old and no access direction has been issued.

    The third safeguard is that if an agency has not yet issued an access direction for a record over 30 years old, section 54 gives it a second chance to do so. If an application for access is made, the agency has 14 days to consider whether to give a closed to public access direction or an open to public access direction. The fourth safeguard is that, arguably, as a last resort, the agency may err on the side of caution by issuing a closed to public access direction where the agency believes that it cannot properly consider the privacy implications within the 14-day timeframe. Any closed to public access direction can later be revised, reviewed or revoked. As members of the Chamber can see, the proposed amendments to section 54 do not in any way undermine the privacy protections. The Government opposes the Greens amendments.

    Amendments negatived.

    Ms LEE RHIANNON [6.03 p.m.]: I move Greens amendment No. 2:

    No. 2 Page 5, schedule 1. Insert after line 40:

    [16] section 57 (4)

    Insert ", a duty to comply with the information protection principles in the Privacy and Personal Information Protection Act 1998 or a duty to comply with the Health Privacy Principles in, with any health privacy code of practice in, or with any other provision of, the Health Records and Information Privacy Act 2002" after "confidentiality".

    The State Records Act scheme currently provides that an agency responsible for records can authorise State Records to provide open access earlier than the normal 30 years. The Greens amendment makes it absolutely clear that an agency cannot release records as part of the early access scheme where to do so would breach its duty to comply with the information protection principles in the Privacy and Personal Information Protection Act or with the health privacy principles and other codes or provisions of the Health Records and Information Privacy Act. As the Act now stands it appears that giving such an authority to State Records could only be done if it would not breach privacy laws. In addition, it relates only to records that have already been transferred to State Archives under a disposal authority. The privacy of personal information that is of little or no genuine public interest is often protected by default because it will be destroyed under a disposal authority rather than transferred to State Archives. Under the bill, however, agencies would be allowed to disclose information from any records held in their possession well before the normal 30-year period starts.

    This proposal would allow agencies to deliberately, or carelessly, circumvent existing privacy law, disclosing information in a way that would otherwise be prohibited under the New South Wales Privacy and Personal Information Protection Act or the Health Records and Information Privacy Act. Agencies could also use this new provision to retrospectively justify disclosures of personal information. They only have to consider privacy within the context of the non-binding guidelines issued by the Attorney General. These guidelines were intended to assist with decision-making in relation to records more than 30 years old, not records less than 30 years old. Older records inherently pose a lesser risk to personal privacy than more recent records. The guidelines give significantly less privacy protection than the New South Wales Privacy and Personal Information Protection Act, the Health Records and Information Privacy Act or the Freedom of Information Act.

    While the State Records Act includes a provision in section 57 [4] to the effect that a public office cannot release a record in breach of any duty or obligation it might have in relation to that record, there is still a real risk that privacy may be breached. This is because public servants trying to do their job must grapple with the tricky job of assessing whether releasing records in their possession would in practice breach the Privacy and Personal Information Protection Act or the Health Records and Information Privacy Act. Also, the Privacy and Personal Information Protection Act and the Health Records and Information Privacy Act are themselves confusing: they say that normal prohibitions on disclosures of personal or health information under these Acts are lifted whenever another Act authorises, requires, permits, necessarily implies or reasonably contemplates non-compliance with the privacy principle in those Acts. This is confusing for the people who have to carry out this work. That is why the Greens have moved the amendment, to make it absolutely clear how this aspect of the Act should work. I commend the amendment to the Committee.

    The Hon. HENRY TSANG [Parliamentary Secretary] [6.07 p.m.]: The Government opposes Greens amendment No. 2. The amendment is unnecessary. Agencies cannot release records when to do so would breach the New South Wales Privacy and Personal Information Protection Act or the Health Records and Information Privacy Act. Section 57 (4) of the State Records Act explicitly provides that the section "does not authorise a public office to permit public access to a State record in breach of any duty or obligation (such as a duty of confidentiality) that the public office may have with respect to the record". A public office's obligations to comply with the information protection principles in the Privacy and Personal Information Protection Act 1998 and the health privacy principles in the Health Records and Information Privacy Act 2002 come within the terms of this section. The Premier addressed this issue in a letter to the Legislation Review Committee on 10 November 2004.

    The Hon. Don Harwin: As I did in my contribution to the second reading debate.

    The Hon. HENRY TSANG: I acknowledge the remarks of the Hon. Don Harwin. The Government opposes the amendment.

    Amendment negatived.

    Schedule agreed to.

    Title agreed to.

    Bill reported from Committee without amendment and passed through remaining stages.


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