JUSTICE LEGISLATION AMENDMENT BILL (NO 3) 2018; CRIMES LEGISLATION AMENDMENT (VICTIMS) BILL 2018; GOVERNMENT INFORMATION (PUBLIC ACCESS) AMENDMENT BILL 2018

2nd Reading Speech

20 November 2018


The Hon. ADAM SEARLE (21:28): I lead for the Opposition on the Justice Legislation Amendment Bill (No. 3) 2018, which is cognate with the Crimes Legislation Amendment (Victims) Bill 2018 and the Government Information (Public Access) Amendment Bill 2018. The Opposition will not oppose these bills but will move amendments concerning schedule 2 to the Justice Legislation Amendment Bill (No. 3) 2018, the provisions relating to the retiring ages of judicial officers and their pensions. We will also move amendments to schedule 1 [6] of the Government Information (Public Access) Amendment Bill. 

These three bills are being debated cognately. In the normal course they could and would have been standalone bills because they lack the thematic or linking subject matter that usually instigates the use the cognate facility. Overwhelmingly, they represent the Government response to statutory reviews and recommendations for legislative amendment, mostly worthy and uncontroversial. For eight years the Government has not had any suggestion of a coherent legislative agenda. Coming to the end of the sitting of this Parliament, before the election scheduled in March of next year, the Government appears finally alert to responding to reports and reviews, and the need to do something to the shape of this law in New South Wales.

In trying to deal with this self-created log jam, the Government has stitched together various bills to be debated cognately, even though there is no obvious need for a cognate debate or the usual subject matter nexus. This is the third instance of various bills being dealt with in this way in recent times. Unlike a previous occasion, I will not request that they be voted on separately, but the point is that the Government is misusing this facility; although it is open to it to do so.

The first bill is the Justice Legislation Amendment Bill (No. 3). This is stranger than the other bills over recent weeks because it includes a number of measures not within the Attorney General’s portfolio. Apart from schedule 2, it has the look of a statute law miscellaneous provisions bill. Within the breadth of these miscellaneous amendments in the bill there are some provisions that should be mentioned.

Schedule 1.16 amends the provisions of section 44 of the District Court Act relating to that court’s civil jurisdiction, which seems to redress a quite unsatisfactory situation and now allows commercial causes to be within the District Court’s jurisdiction. Currently its jurisdiction to hear actions applies to actions which, if brought in the Supreme Court, would have been assigned to the Common Law Division of the Supreme Court as opposed to the other divisions as they stood at 2 February 1998. I will check that date.

The Labor Party Opposition received representations from members of the profession about this problem. They suggested that the Opposition move an amendment to a recent Statute Law (Miscellaneous Provisions) Bill to rectify the problem with section 44. Instead, on 23 October the shadow Attorney General in the other place put a question on notice to the Attorney about the issue and the next day the Attorney moved the second reading, which is the subject matter of this bill. It appears the provision in it deals with that problem. The Opposition agrees with that course of action. We would not support removing those provisions because we understand that some uncertainty in the state of the law has arisen. These changes, as we understand it, retrospectively fix any perceived legal problem, which we think is a good thing. Having uncertainty in the law, particularly involving cases long since run, decided or settled, would not be in the public interest.

Schedule 1.17 provides a useful amendment to the legislation of the Drug Court. It is not that long ago that Parliament supported sensible changes surrounding licence disqualification provisions granting the Local Court power to remove disqualifications in certain cases. The Opposition was happy to support those proposals. The provisions of the bill extend those powers of the Local Court to the Drug Court so that they can be exercised when the final sentence is determined by the Drug Court. That saves transferring the matter to the Local Court for decision. This has virtues of efficiency and sensibly reduces the use of judicial recourses. Additionally, the Drug Court is likely to be in a far better position to assess the circumstances of a particular case.

Schedule 1.18 amends the Crimes Act. It replaces the term “probation and parole officers” with the term “Community Corrections officers” in the definitions of law enforcement officers in section 60AA. That change is also made in other pieces of legislation by this bill. More substantively, it extends the situations in which a sexual assault will be treated as an aggravated sexual assault with the concomitant more serious maximum penalty. The aggravated form will now include cases where the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby without the current requirement that it be by means of an offensive weapon or implement. Section 1.9 makes interesting amendments to the Crimes (Administration of Sentences) Act.

A new section 8 (2A) and section 8 (2B) provide that an inmate can remain in custody for up to four days after the release date. This is conditional upon there being a good reason to delay the release. The sections provide a lack of transport as one example of a good reason. It is also conditional upon the inmate requesting or consenting to the delay. That is effectively restated in section 8 (2B). Depriving someone of their liberty for longer than ordered is obviously a very serious issue and potentially a breach of fundamental principle. Those issues are attempted to be dealt with by the conditions that are imposed. The bill’s explanatory note advises that currently if an inmate’s release date is on the weekend or a public holiday, the inmate can request to stay in custody until the day after the weekend or public holiday. Other provisions of schedule 1.9 deal with courts taking action on the breach of a community corrections order or conditional release order, clarification of the period of a supervision order, the revocation of an intensive corrections order, the recording of decisions by the State Parole Authority, and breaches of a reintegration home detention order.

Schedule 1.10 clarifies the stay of the operation of a licence disqualification when an appeal is lodged. Schedule 1.11 provides a limit on a relationship between a defendant and a paid carer being treated as a domestic relationship under the Crimes (Domestic and Personal Violence) Act. Schedule 1.14 deals with situations where sentenced defendants do not properly fulfil undertakings to assist law enforcement authorities despite getting the benefit of a discount for such assistance. Items [1] and [2] of schedule 1.15 enable proceedings for a summary offence to be brought outside the usual six-month limit if the summary offence is a back-up offence to an indictable offence that was withdrawn or dismissed at the time the accused person was found guilty or convicted of the indictable offence and if the conviction for the related indictable offence is later set aside by the District Court on appeal. The proceedings must be commenced within six months after the related indictable offence conviction is set aside on appeal. In his second reading speech, the Attorney in the other place indicated this change applies to only a very narrow set of circumstances.

Schedule 1.15 [4] allows a court to give directions about the giving of expert evidence concurrently or consecutively in criminal proceedings. Schedule 1.15 [5] extends the protection against disclosure that currently exists for sensitive evidence held by a prosecuting authority to sensitive evidence held by a health authority. Schedule 1.24 makes amendments to the Succession Act flowing from the same-sex marriage amendments to the Marriage Act in December 2017. Schedule 3 provides amendments to the Legal Profession Uniform Law Application Act 2014 and the Legal Profession Uniform Regulation 2015. They deal with the solicitor’s Mutual Indemnity Fund, which was established in 1987. In 2001, the fund assumed liability for professional negligence claims that would have otherwise been met by HIH, which had of course collapsed.

The fund currently has $88 million with limited likelihood of future claims. An agreement was reached between the Government and the Law Society over this fund. The President of the Law Society, Doug Humphreys, has made clear to the Opposition the society’s agreement to the arrangement contained in the bill. It will be shared in equal parts by the Public Purpose Fund and the Law Society, with the Law Society portion subscribing its share in LawCover insurance. A Community Legal Services Fund will be held within the Public Purpose Fund as a dedicated source of funds for community legal centres, which will have the divested solicitor’s mutual indemnity fund proceeds. The interest from those funds can be reinvested or used to fund community legal centres. Other provisions of schedule 3 also deal with issues about the Public Purpose Fund. An additional trustee will be appointed to the fund with financial and investment expertise.

Schedule 3.2 provides that law firms must calculate statutory deposits based on the minimum balance in their general trust account over the past quarter rather than the past 12 months. This follows the Victorian model and was recommended by the Steering Committee on the New South Wales Public Purpose Fund. It should, and the Opposition earnestly hopes it will, increase the balance of statutory deposit accounts. It should strengthen the financial position of the Public Purpose Fund, which in turn has significant benefits. The Opposition welcomes this portion of the bill. We are happy to be known as supporters of Community Legal Centres. Those measures are positive and important to underwriting the work done by those Community Legal Centres, which is valuable to the operation of our legal system but, more importantly, to the efforts to create a fairer and more equal society by providing legal services to those who cannot afford to purchase them commercially.

Schedule 2 to the bill deals with amendments relating to the retirement age of judicial officers. This is the controversial aspect of the legislation. This provides amendments to various pieces of legislation and increases the maximum retirement age for judges, magistrates, the Director of Public Prosecutions and the Solicitor General. The maximum retirement age is proposed to be increased from 72 to 75 years of age. Acting judges and magistrates will be able to be appointed up to the age of 78 rather than the age of 77. At present, judicial officers can access their pensions after 10 years of service, but judges will be able to access their pensions now at age 65 not age 60, provided they have served that 10 years. Importantly, this change applies to judges appointed only after those amendments commence. That is, it is not retrospective and the pension provision does not apply to current judicial officers. However, the prospective change to the pension age from 60 to 65 will create two classes of judges serving side by side in the same courts. As a matter of principle that is highly problematic and I understand there is great unease in the profession and among the judiciary about this aspect of the legislation.

I understand that in its original iteration it was proposed that these provisions would operate retrospectively—that is, to any judicial officer currently serving, who at the time of appointment would have been able to retire at age 60 after 10 years service. To have that condition retrospectively changed would have been highly problematic because any retrospective change to what could be described as the conditions under which judges perform their important public functions, or their remuneration, would be contrary to principle and a transgression on the separation of powers and interference in the independence of the judiciary. There are potential problems in the Constitution Act in relation to that.

Leaving aside the Constitution Act it would be inappropriate to unilaterally increase the pension age for those who have accepted appointment on a different set of conditions. The impact of these changes in this bill, however, is that any judicial officer who might have had to retire at age 72, and was perhaps short of the magic 10  years for qualifying for a pension, if this bill is enacted, will now be able to consent to serve longer and qualify for those additional benefits. Judicial officers who will benefit from these provisions will no doubt welcome it.

As a matter of principle, the Opposition is concerned that these changes, unlike the pension age changes, will have a retrospective rather than just a prospective impact—that is, they will apply to current judicial officers rather than just to those appointed after these provisions come into effect. It can only apply to them with their consent but given that the changes will be beneficial it may be inferred that most of those who will be able to retire later will do so if, in so doing, it provides them access to benefits that they will not currently be able to obtain.

Changes to the conditions of judges should not be retrospective and they should apply only to new appointments. While these clearly apply to those judicial officers who consent to it, who opt in, frankly that is not good enough. There is either a principle against making retrospective changes to the conditions under which judges perform their duties or there is not. It is wrong to say retrospectivity is okay if it is beneficial. That simply makes the judiciary appear self-serving and will tend to discredit it in the eyes of the wider community. I say to the House, the judiciary and all those concerned with the independence of the judiciary, the separation of powers, and in upholding the rule of law: if they allow retrospective changes to judicial benefits, they are accepting that at some future point a government or a Parliament can make retrospective changes to judges that are detrimental. Just as the Parliament can give judges something they did not have at the time of their appointment, it is able and entitled to take from judges conditions they did enjoy at the time of their appointment.

I pause to say that these would be within the limits permitted by the Constitution Act and, in particular section 55, which the Attorney in the Legislative Assembly mentioned in his address-in-reply which I will not address now. I will deal with it in the Committee stage because it deals with competing legal views about the breadth of section 55 and whether things are permitted. I am not saying this is desirable—it is not—but once the principle of retrospectivity is conceded there is no longer any principle to defend. We are accepting that whatever changes can get through Parliament are permissible. What would stop the next Parliament, for example, removing retrospectively the same benefits that are now being conferred? Again, it depends on one’s view of the operation and breadth of section 55. I do not share the Attorney’s understanding of the operation of section 55 and neither do a lot of legal people. The issue is that until it is tested in a court we will not know what the law is. This is not a matter that should be tested inside a court because the courts will be hopelessly compromised on this issue because it concerns their conditions of work.

This Government and this Parliament should not erode the independence of the judiciary in the way it is no doubt unintentionally doing. The idea of making the new and later retirement age retrospective did not come from the wider community. Nor, I think, did it originate with the Government originally, or the legal profession. It is disturbing that senior members of the profession are suggesting that it was conceived of and promoted by senior elements in the judiciary, some of whom will benefit directly and profoundly by these changes. This is troubling and it tends to make the judiciary appear self-serving and will tend to diminish and discredit it in the eyes of the wider community. This is not in the public interest, is not desirable andperhaps because we on this side of the Chamber have not been privy to the genesis or the development of these proposalsmay be doing the judiciary a grave disservice.

The Government needs to come clean with the Parliament and the community about who put this on the table, who pursued it, and why is it being done,because the stated reasons simply do not add up. The stated reasons are that there are senior and experienced judges from whose service the State should continue benefitting. That will always be the case whether the retirement age is 72 or 75. Undoubtedly some judicial officers are able to make a positive contribution beyond the current retirement age. That is clear from the number of judges aged over 72 who continue as acting judges—they can continue to act as a judge well beyond the retirement age of 72.

However, what is also clear is that as we, collectively, age we decline both physically and in mental acuity. While this occurs at different rates for different persons, over time it does happen to all of us. While we need to retain the expertise developed in the judiciary, we also need to ensure there is proper and regular renewal of the judiciary, not only to ensure there is a mixture of experience and freshness of approach but also to ensure that the judiciary—the third arm of our government—remains contemporary and continues to grow more diverse in life experience, cultural and social backgrounds, and gender. In short, this isso the judiciary becomes more reflective of and relevant to the society it serves. This is not some matter of political correctness. Judges exercise enormous power. They apply the law. They also interpret it.

In many situations the law, or its application to given facts, is not clear. If it were otherwise, we would not need lawyers or courts to resolve legal disputes. We can see in the outcome of many cases that reasonable legal minds can differ as to the appropriate outcome, even when they follow the same legal reasoning process. There is also in many areas of legal decision-making a wide discretion reposed in the judiciary. The way that discretion is exercised is informed not merely by professional training and experience, but also by life experience and legal philosophy.

So it matters who the judges are and it matters that there is sufficient and regular renewal to ensure the judiciary is able to properly serve the community. Without intending any disrespect to any individual, this proposal will amount to a preservation order on older, white men. Some judges may want to keep working longer, some may be in a position where, by working as a judicial officer for a couple of years longer, they qualify for a judicial pension when otherwise they would not. The problem with encouraging current judges, as opposed to future judicial appointments, to remain in office until a later age is that it entrenches the serious lack of diversity exhibited by the present judiciary and the majority of appointments.

The shadow Attorney, the member for Liverpool in the Legislative Assembly, quoted extensively statements made by the former President of the Bar AssociationArthur Moses, SC. The comments he made on this matter are apposite. I will not quote all of the matters outlined by the shadow Attorney. I will selectively quote. The first is:

While the Association welcomes these changes in principle, any legislative reform in this space must be prospective, not retrospective, to maintain the independence of the bench, including the appearance of the independence of the judiciary which is fundamental to the rule of law.

Retrospective legislation of any kind creates uncertainty, inconsistency and may also impact upon the appearance of the independence of the judiciary. Varying the retirement age of judges retrospectively inevitably impacts upon the appearance of judicial independence because there may be some judges who benefit from the changes who have a personal desire to remain in office longer or access additional benefits which they were not entitled to at the time of their appointment. The quote continues:

The Association also opposes retrospectivity because it may set a dangerous precedent for any future government to attempt to alter the conditions of appointment of judges to their detriment in a retrospective manner. While any such step may be Constitutional, the Association would not wish to see any precedent set that may encourage any future governments to do this. We must be careful to learn from the recent attempt by the Polish Government to reduce the retirement age of judges in an attempt to purge the judiciary. Increasing the retirement age with retrospective effect may operate to preserve the composition of a judiciary, the diversity of which lags behind community expectations.

Speaking about the need to facilitate the bench reflecting the community it serves, Mr Moses said:

It has only been in recent times because of the changing demographics of the legal profession that as a result of retirements more women have been appointed to the NSW Supreme Court. I would like to see that trend continue, as well as appointments of lawyers from diverse backgrounds. The risk in making these changes retrospective is that the current demographic of the bench is preserved for many more years and renewal of the composition of the judiciary is unacceptably delayed. A judiciary that reflects the community it serves better enhances public confidence in the administration of justice, including respect for the rule of law.

These concerns are entirely legitimate. The Opposition shares them and accordingly will move amendments to the bill that reflect this position. I now turn to the second of these purportedly cognate bills: the Crimes Legislation Amendment (Victims) Bill. It proposes amendments to the Children (Criminal Proceedings) Act, the Crimes (Domestic And Personal Violence) Act, the Crimes (Sentencing Procedure) Act, the Crimes (Sentencing Procedure) Regulation and the Criminal Procedure Act.

The provisions in this bill include changes to the Children’s Court procedure when a person is charged with child sexual assault. These are provided in a proposed new section 3AA of the Children (Criminal Proceedings) Act. If the prosecution requests that a matter be dealt with according to law rather than finalised summarily in the Children’s Court, the court can decide to conduct a committal hearing. The prosecution’s case is to be dealt with by written statements and the possibilities for witnesses to give oral statements are limited. The request does not have to be made at the first return date, although if it is made later than that, the court must be satisfied that it is in the interests of justice to proceed. The Children’s Court retains the capacity to determine that such matters should be disposed of summarily.

The provisions in relation to the giving of evidence restrict the number of times complainants in child sexual abuse proceedings in the Children’s Court are required to give oral evidence compared to the current regime. These matters, as noted by the Attorney General in his second reading speech, were subject to commentary and recommendations in the report of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Schedule 2 alters provisions in the Crimes (Domestic and Personal Violence) Act relating to protections for children aged 16 and 17 years. Schedules 3 and 4 amend the Crimes (Sentencing Procedure) Act in relation to victim impact statements. As the Attorney General noted in his second reading speech, many of the provisions relating to victim impact statements stem from a report from the NSW Sentencing Council dated March 2018 entitled “Victims’ involvement in sentencing”.

The current division 2, part 3 of the Crimes (Sentencing Procedures) Act dealing with victim impact statements would be replaced by the provisions of this bill. The meaning of a primary victim’s “immediate family” will be expanded to include a step-grandparent or step-grandchild of the victim and, in relation to an Aboriginal or Torres Strait Islander victim, a person who is or has been part of the close family or kin of the victim according to the kinship system of the victim’s culture. The definition of the “primary victim’s family” in section 26 extends to anyone regarded by the prosecutor as part of the victim’s extended family or culturally recognised family of whom the victim was considered family.

The types of offences in relation to which victims can give a statement are expanded to include offences that are indecent or sexual in nature or involve a violation of privacy. This includes voyeurism or distributing intimate images without consent. Victims will be able to make statements in relation to so-called “form 1 offences” that are taken into account when an offender is sentenced for a principal offence that presently technically cannot happen and seems unnecessarily artificial. The types of harm specified in the statute as able to be raised in a victim impact statement are expanded so that a broader and more complete picture of the harm sustained is understood.

New section 30 consolidates and clarifies provisions about who may assist a victim during the victim impact statement process. Resulting from recommendations of the NSW Sentencing Council and the statutory review of the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act tabled in August this year, the proposed amendments would strengthen provisions about the drawing of inferences about the absence of a victim’s impact statement.

New section 30F deals with restrictions on the consideration of victim impact statements that are not strictly in accordance with the provisions of the legislation. New section 30G provides a statutory basis for the current practice of a copy of a victim impact statement being provided to the offender’s lawyer. In practical terms this can avoid cross-examination of a victim, with objections resolved before the statement is presented. The bill includes restrictions about access to and dissemination of statements. New subdivision 4 intends to expand to all victims provisions such as support persons while a statement is read and, where possible, special arrangements such as closed-circuit television.

Schedule 5 to this second of the three cognate bills amends the Criminal Procedure Act. The Attorney General presents this as an attempt to expand and harmonise some of the available legislative protections to categories of witnesses who may be regarded as vulnerable. These categories include complainants and tendency witnesses in criminal proceedings for prescribed sexual offences; child complainants, witnesses and accused persons under 18 years; complainants or witnesses with a cognitive impairment; and domestic violence complainants.

Schedule 5, item [4] extends the category of witnesses in committal proceedings that can only be directed to attend and give oral evidence if there are special reasons to sexual offence witnesses in prescribed sexual offence matters—often as tendency witnesses—and the witnesses who are vulnerable witnesses, defined as those under 16 years of age or those who are cognitively impaired. Protections available to complainants in matters referred to in sections 83 and 84 of the principal Act are extended to complainants in similar types of Commonwealth offences.

I turn now to the third of these cognate bills, the Government Information (Public Access) Amendment Bill. The object of the bill is to amend the Government Information (Public Access) Act to give effect to recommendations made in the statutory review that was tabled in August 2017. With barely any sitting days left, the Government has got around to this bill a year after the review report was tabled. The report acknowledged that section 130 of the Government Information (Public Access) Act required the Minister to review the Act of 2009 and that the review was to be undertaken as soon as possible. The Act was assented to on 26 June 2009. Advertisements for the review were published in July 2014 and closed in August. In the other place the shadow Attorney has comprehensively detailed the delays.

The bill implements recommendation 3 of the statutory review, which means that agencies can accept access applications electronically without prior permission of the Information Commissioner. It is hard to see why in contemporary New South Wales we should not be able to lodge applications electronically. This bill takes a step forward by allowing agencies to accept such applications without the Information Commissioner’s consent. However, it is left to the discretion of the agencies. The statutory review on this issue made recommendations that have resulted in this bill, but the review notes that an agency may currently, if it chooses and with the approval of the Information Commissioner, receive access applications electronically.

The obvious conclusion to draw from the Government’s own review and those passages of the review quoted by the shadow Attorney in the other place would be to compel all agencies to accept applications electronically. That raises the question of why in this day and age, and in light of this commentary in the review, New South Wales government agencies should be able to refuse to accept applications electronically. But that is the position provided for in this bill. The reason for this bizarre and apparently contradictory attitude becomes clear in paragraph 5.5 of the report, which states:

We appreciate that some agencies have concerns that allowing electronic lodgement may result in a substantial increase in the number of applications being made, the processing of which may result in adverse effects on agency resources. While we acknowledge this concern, we consider that an amendment to section 41 to allow, but not compel, agencies to accept electronically lodged access applications will mitigate against this. We also note that the object of the GIPA Act is to encourage open government information; greater numbers of access applications from members of the public would, in fact, further that object.

The appalling truth that emerges from this review is stark: Agencies and this Government do not want agencies to be compelled to accept access applications electronically because there simply may be too many of them. It seems that the Government is not so much into freedom of information as freedom from information. So much for open government; it is semi‑closed government in New South Wales under this Government.

Labor will move amendments to provide that agencies must accept access applications electronically. The choice should and will be that of the applicant, not of the public sector agency. There are amendments dealing with disclosure logs. In particular, review recommendation 2 is adopted in schedule 1, items [28] and [30] so that on a review of a decision to include information in a disclosure log, the onus is on the objector to establish that the objector’s reasons outweigh the public interest in disclosure.

Schedule 1 [16] adopts another of the review’s technical recommendations set out in the appendix which is said to align the Government Information (Public Access) Act with the Privacy and Personal Information Protection Act and the Health Records and Information Privacy Act. Schedule 1 [14] adopts recommendation 5, authorising agencies to consult with each other to reach a decision on whether an overriding public interest against disclosure exists. Schedule 1 [21] amends section 60AA of the Act in a manner generally consistent with recommendation 7. In deciding whether an access application would require an unreasonable and substantial diversion of the agency’s resources, the agency may take into account various considerations, including the agency’s size and resources. New section 60 (3B) provides that such considerations must outweigh the general public interest in favour of disclosure, as well as the demonstrable importance of the information to the applicant.

The DEPUTY PRESIDENT (The Hon. Shayne Mallard): According to sessional orders, proceedings are interrupted to permit the Minister to move the adjournment motion if desired.

The House continued to sit.

The Hon. ADAM SEARLE: Schedule 1 [15] deals with another technical recommendation that amends section 55 (5) of the Government Information (Public Access) Act. Presently the principal Act allows an agency to require an applicant “to provide proof of his or her identity”. The proposed amendment is to qualify this by saying they must be “reasonable steps”. The technical amendment in the appendix recommended that agencies should have discretion to require an applicant to prove their identity but should be applied flexibly to vulnerable clients.

Schedule 1 [20] makes an addition to section 60 to allow an agency to reject an application if the applicant or someone acting in concert with them is involved in current court proceedings and is able to apply for access through that mechanism, which reflects recommendation 8 of the statutory review. Schedule 1 [18] expands the enumerated cases where an agency can decide information is already available to an applicant in line with a technical recommendation in the review. Section 86 is amended to clarify the timing of the review period for an internal review. Schedule 1 [27] implements recommendation 12. There have been concerns about considerable delays in the Information Commissioner completing external reviews. The new provision provides the Information Commissioner must complete the review within 40 working days of receiving all the information they think is necessary. The period may be extended by agreement with the applicant for review.

If no recommendations are made within the review period then the commission is deemed not to have made any recommendation, which allows an application to be made to the New South Wales Civil and Administrative Tribunal [NCAT]. It has similarities to the deemed refusal provisions concerning development applications in the planning system. The obvious problem seems to be that the only person who knows that the 40‑day provision commences is the Information Commissioner. The office of the commissioner are the only ones who know what information they have and only they can form a view as to what they consider necessary to complete the review.

These provisions come from what can only be termed chronic delays in the offices of the Information Commissioner. The failure to adequately carry out reviews under the Government Information (Public Access) Act 2009 in a timely manner is corrosive of the principles that the Government Information (Public Access) Act is meant to enshrine. Paragraph 7.24 of the statutory review records that a significant number of submissions to the review raised concerns about the operation of the Information Commissioner’s external reviews. The review said that it was not the fault of the legislation and “it appears they stem from practical and historical difficulties with the operation of the review function within the Information and Privacy Commission [IPC], which have created backlogs of review applications”.

Schedule 1 [29] implements recommendation 13 in relation to third parties having to seek internal reviews before proceeding to NCAT. Items [31] to [33] of schedule 1 give NCAT the power to issue restraint orders, which seems to be the Government Information (Public Access) Act version of provisions to deal with vexatious litigants, which the Opposition hopes will be used sparingly. New section 112 allows a report to the Information Commissioner where the Minister is a party. Labor is not sure what sort of sanction that is supposed to be, but it is certainly meant to deal with the situation where the Minister is involved in the litigation. That provision was contained in recommendation 15.

The shadow Attorney drew the attention of the other place to the judgement of NCAT in the case of Salmon v Corrective Services NSW [2016] NSWCATAD 257. Paragraph 82 of that judgement is particularly apposite to this point. If one officer fails to act in good faith, there is a sanction of reporting. If it is a systemic issue, then it is a different problem. No referral under section 112 was made in Salmon’s case. In that case, the officer concerned gave evidence that as matter of course the agency, Corrective Services, did not accept IPC recommendations. The judgement at paragraph 39 states:

She also gave evidence that she would not change her view on the basis of a recommendation because it would mean contradicting the view expressed by a more senior officer of the Respondent.

That is because a more senior officer than she had made a decision that she would under no circumstances follow an IPC recommendation. That sort of approach is self-evidently disgraceful but because it reflects the attitude within the organisation it is not the bad faith conduct of an officer and cannot be referred anywhere or drawn to anyone’s attention. That shows a far more serious and corrosive undermining of the principles of the Government Information (Public Access) Act and is much more damaging for good government than an individual case of officer bad faith, but nothing can be done. In short, it is too big and too serious a problem to actually have action follow.

There are a number of provisions dealing with issues concerning public interest considerations against disclosure. Schedule 1 [40], which implements recommendation 16, perhaps restricts some circumstances in which Cabinet information provisions can be used to deny access. Part 2, division 1, section 7 of the Government Information (Public Access) Act currently provides for non‑disclosure of law enforcement and public safety information. Schedule 1 [44] now extends this to information created by a law enforcement agency in another jurisdiction, including one from outside Australia. A number of other technical amendments encompassed by recommendation 19 are included in items [41], [54] and [55] of schedule 1. There are also a range of other technical amendments. The Opposition will not oppose the cognate bills but will move the amendments I have outlined in my second reading contribution.