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Justice and Community Safety Legislation Amendment Bill 2019

As Mr Hanson already noted, the Canberra Liberals will not be supporting part 5 of the amendment bill. Our specific concern lies with clause 17, which as those opposite will know, has attracted a good bit of expert attention and public discussion over the past few weeks – including a recent request by Chris Donohue, president of the Law Society of the Australian Capital Territory, that this clause be removed from the bill.

In addressing this matter, I want to be very clear. We understand the justifications this government has given for proposing this amendment. We realise that to the attorney-general, this is merely a technical amendment designed to harmonise the Freedom of Information Act with the privacy provisions already present in the Children and Young People Act. We get that. Section 844 subsection 2 of the Children and Young People Act already states that ‘protected information includes sensitive information’.

Mr Ramsay and his staff have repeatedly assured us that this amendment does not alter existing rights because sensitive information ‘is not currently available through FOI applications, and has not been released to anyone under the existing FOI Act’. But that merely raises a question – a rather important question, Madam Speaker: If sensitive information is already a subset of protected information, and if section 848 subsection 2 of the Children and Young People Act already prohibits the divulging of sensitive information, including, according to section 849, even if the person whose information it is gives consent – if that is the case, Madam Speaker, then why bother amending the FOI Act to make these restrictions even more obvious? If doing so changes absolutely nothing on a practical level – as I have been repeatedly told – then why bother updating the Act?

Is it to tighten up further the restrictions on accessing information? Is it to put a deadlock on a door that people might have thought was open before? Is it to provide more secrecy? These are the questions that people are asking.

Madam Speaker, what happens in this place does not happen in a vacuum, and I think it is therefore important to point out that there are very real reasons why this supposedly harmless amendment has drawn the attention of, and comment from, senior legal practitioners – including the president of the Law Society and the head of Legal Aid ACT’s family law practice. These people, after all, are quite capable of reading the relevant acts, the proposed amendment, and the government’s explanations for why it wants to make this change. In recent months, many of these same legal experts have openly been calling for greater transparency in the territory’s care and protection system. In this, they have been joined by child welfare advocates, by Aboriginal and Torres Strait Islander community leaders, and very recently by all four members of the ACT’s Human Rights Commission.

In other words, at the very point in time when a growing chorus of rather important voices has been publicly and often quite passionately expressing the need for greater transparency in this space, the Labor-Greens government introduces an amendment that, at best, appears to signal its ongoing commitment to secrecy provisions that some have described as ‘the most restrictive in the country’. For many of those who are clamouring for greater openness and transparency – including but not limited to the experts mentioned above – this feels more like a slap in the face than a technical amendment.

Madam Speaker, what is needed right now is not a tightening up of restrictions on access to information in the Freedom of Information Act, especially if it’s an amendment without any practical impact. Just a few weeks ago, members of this Assembly unanimously supported my motion asking the Standing Committee on Health, Ageing and Community Services to inquire into ‘the ability to share information in the care and protection system with a view to providing the maximum transparency and accountability so as to restore and maintain community confidence in the ACT’s care and protection system’. This discussion is clearly ongoing, and as the president of the Law Society recently noted, pushing ahead with amending the Freedom of Information Act today merely prejudices the the discussion.

The Canberra Liberals will not be supporting this amendment as a clear signal that we have heard those who believe that the privacy provisions surrounding care and protection decisions in this territory are already too restrictive for the system to be healthy and to function in the way that it needs to. Protecting privacy is one thing. We wholeheartedly support that. But secrecy provisions that, to legal experts, seem more designed to protect the system from scrutiny are something else altogether.

Whilst the Canberra Liberals will not be supporting this part of the amendment bill, we do support efforts – some already underway – designed to review this matter and recommend needed reforms. Thank you.

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