Bills Digest no. 39 2012–13
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Mary Anne Neilsen
Law and Bills Digest Section
31 October 2012
Date introduced: 10 October 2012
House: House of Representatives
Commencement: On Royal Assent, although note that the Bill will operate retrospectively from the day after introduction, that is 11 October 2012.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012 (the Bill) amends the Freedom of Information Act 1982 (the FOI Act) and the Privacy Act 1988 (the Privacy Act) to provide a new FOI exemption for documents related to confidential requests to the Parliamentary Budget Office (PBO).
The federal FOI Act, like its state counterparts, is based on the principle that every person has a legal right to obtain access to information in documentary form, which is in the possession of ministers or government agencies, subject to the operation of specific exemptions and exclusions.
Specifically section 11 of the FOI Act states:
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
In relation to agencies, exemptions can apply to:
- specific agencies, or
- categories of documents.
Some agencies are currently exempt from the FOI Act entirely (for example, the PBO and the Australian Security Intelligence Organisation) while other agencies are exempt in relation to some material (for example, Telstra is exempt in respect of documents relating to commercial activities).
The various categories of exempt documents are divided into two classes of documents and set out in Divisions 2 and 3 of Part IV of the FOI Act. The two classes are:
- ‘exempt documents’ (dealt with in Division 2 of Part IV). These include, for example, documents affecting national security, defence or international relations, cabinet documents, and documents the disclosure of which would be contempt of Parliament or contempt of court. In the case of these Division 2 documents, exemption from disclosure is not subject to a public interest test and
- ‘conditionally exempt documents’ (dealt with in Division 3 of Part IV) where access to the document must be given unless disclosure would, on balance, be contrary to the public interest test. These include, for example, documents affecting personal privacy, documents related to Commonwealth-State relations and documents expected to have a substantial adverse effect on Australia’s economy.
The Parliamentary Budget Office (PBO) was established under the Parliamentary Service Act 1999 (the Parliamentary Service Act) and is one of four parliamentary departments supporting the Parliament. Mr Phil Bowen took up an appointment as the inaugural Parliamentary Budget Officer (PB Officer) on 23 July 2012 and is responsible for leading and managing the PBO.
As a newly established parliamentary department, the role of the PBO is to inform the Parliament by providing independent and non-partisan analysis of the Budget, fiscal policy and the financial implications of proposals. Comparatively the PBO is a small department, currently being an office of eight people but ultimately expected to have 30 to 35 people.
Specifically, the Parliamentary Service Act 1999, gives the PB Officer the following functions:
- outside the caretaker period for a general election—to prepare policy costings on request by Senators and Members of the House of Representatives (Members), with the request and responses to be kept confidential if so directed by the requestor
- during the caretaker period for a general election—to prepare costings of publicly announced policies on request by authorised members of Parliamentary parties or independent members
- to prepare responses (other than policy costings) to requests relating to the budget by Senators or Members with the requests and responses to be kept confidential if so directed by the requestor
- to prepare submissions to inquiries of Parliamentary committees on request by such committees with the responses to be made publicly available and
- to conduct on his or her own initiative research on and analysis of the Budget and fiscal policy settings with the results of this work to be made publicly available.
To facilitate its role in undertaking confidential work for Senators and Members, the PBO was established as an exempt agency under the FOI Act, the rationale being that without this exemption, the PBO’s effectiveness as a source of confidential budget analyses and policy costings would be seriously compromised.
The PB Officer in his submission to the Senate inquiry into the Bill states that the ‘proposed amendments to the FOI Act contained in this Bill extend this logic to also provide an exemption under the FOI Act for information held by departments and agencies that relates to a confidential request to the PBO.’ As he explains, the PBO is heavily reliant on other departments and agencies for information to use in its budget analyses and policy costings. ‘Of necessity there will be regular exchanges of information between the PBO and other departments and agencies that relate to confidential requests to the PBO.’
The PB Officer, while acknowledging that procedures and protocols between the PBO and departments have been established to establish strict confidentiality obligations in relation to confidential information requests to the PBO, suggests that ‘the Bill takes this a step further in clarifying the necessary protections’.
The Explanatory Memorandum supports this rationale stating the exemption for PBO confidential documents held by departments and agencies will ensure that ‘the integrity of the PBO processes in these matters which are critical to the successful operation of the PBO will not be undermined.’
By way of comparison, it is of note that while the PBO is an exempt agency under the FOI Act, the situation has recently changed in relation to the other three parliamentary departments, these being the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services.
Although there has never been a specific exemption for these other parliamentary departments under the FOI Act, it was commonly understood until recently, that the parliamentary departments were not ‘prescribed authorities’ or ‘departments’ within the meaning of the FOI Act and were therefore not agencies to which the FOI Act applied. This understanding has been affected by recent views expressed by the Australian Information Commissioner, Professor John McMillan, (Information Commissioner) and the Freedom of Information (FOI) Commissioner, Dr James Popple.
In May 2012, the FOI Commissioner reportedly advised the media that it was ‘probably the case’ that the FOI Act did not apply to the Parliamentary departments until the enactment of the Parliamentary Service Act 1999. Dr Popple considered that after the commencement of this legislation, the Parliamentary departments ‘became subject to the FOI Act, even though this may not have been intended’.
Prior to this media report, on 9 May 2012, the Information Commissioner had amended the FOI Guidelines to provide:
Three of the Commonwealth Parliamentary departments (the Department of the House of Representatives, the Department of the Senate and the Department of Parliamentary Services) are subject to the FOI Act because they were established by, or in accordance with, s 54 of the Parliamentary Service Act 1999 and they have not been exempted. The fourth Commonwealth Parliamentary department, the Parliamentary Budget Office, is exempted because it is expressly deemed not to be a prescribed authority (s7(1) and Division 1 of Part I of Schedule 2 [of the FOI Act]).
Previously, the FOI Guidelines had stated that ‘the [FOI] Act does not apply to Departments of the Parliament’.
Following the change to the FOI Guidelines, these three Parliamentary Departments are now regarded as being agencies to which the FOI Act applies.
There has been a mixed response to this development. Media reports at the time suggested that the Attorney-General was considering options to ‘correct this anomoly’. The Greens, on the other hand welcomed it arguing that ‘greater disclosure of the workings of parliament and the work of MPs is critical to a healthy democracy’. The Greens were also critical of suggestions that the Attorney‑General might legislate to reverse this development.
At the time of the 2010 reforms to the FOI Act, the Australian Law Reform Commission (ALRC) and others questioned why parliamentary departments were not being brought within the scope of the FOI Act. As the ALRC noted in its submission to the Senate Committee inquiry into the 2010 Bill, their much earlier Open Government report had recommended that parliamentary departments should be brought within the scope of the FOI Act on the basis that documents that warrant protection would be adequately protected by the exemption provisions (for example by the exemption based on parliamentary privilege).
At recent Supplementary Estimates hearings it was reported that ‘there have been discussions’ with the relevant departmental heads and the Attorney-General’s Department ‘about how to manage the change which may result in legislative amendments to revert to the previous situation where these parliamentary departments were not covered’ by the FOI Act.
Dr Rosemary Laing, Clerk of the Senate, in response to questions, stated that there is certainly an argument that the administrative functions of the parliamentary departments should be within the remit of the FOI regime, but that she saw difficulties with regard to some of the other functions of the Senate. Dr Laing stated:
We do run on taxpayers' money; we are open and transparent about our operations. The difficulty comes, I think, with things that are not the administrative functions of the Department of the Senate, and that is the whole area of proceedings of parliament and the operation of the Senate and its committees, and there is a very strong argument under the separation of powers that those areas should be beyond what is effectively interference by the executive. This is not a radical idea; it is already present in the Freedom of Information Act by the way that the act applies to the courts and to the Office of the Official Secretary to the Governor-General. In recognition of the fact that they are separate institutions of government, the FOI Act applies only to administrative documents of court registries, not to the proceedings of courts, and it applies only to the administrative documents of the Official Secretary to the Governor-General, recognising that there are other areas that are beyond that coverage.
The Information Commissioner, in response to questions, indicated that at this stage he does not have a fixed view on how the exemption might work and would be awaiting the results of a review of the FOI Act due to commence in November 2012.
The Bill has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 19 November 2012. To date there are only three submissions listed on the Committee’s website. These are from the major stakeholders, namely the PB Officer, the Information Commission and the Department of Finance and Deregulation together with Treasury. All three submissions support the Bill.
Details of the inquiry are at: http://aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/freedom_of_information/index.htm.
The Bill has been referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs. Details of the inquiry are at: http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=spla/bill%20pbo/index.htm .
The amendments in the Bill do not have any significant financial implications.
Items 1 and 2 of Schedule 1 of the Bill amend section 25 of the FOI Act. Section 25 deals with the right of an agency or a Minister when responding to an FOI request to neither confirm nor deny the existence or non-existence of certain documents that would be exempt. Such a right is not given lightly and currently exists only in relation to documents affecting national security, defence or international relations and documents affecting law enforcement and protection of public safety. Items 1 and 2 amend section 25 with the effect that this right would also exist in relation to the new exemption in proposed section 45A for PBO documents. The ALRC in its Open Government report concluded that section 25 is necessary, but that reliance on it should only be justified in rare situations. The Attorney-General in her second reading speech justified this amendment saying:
FOI requests may be made to agencies for the sole purpose of finding out whether or not the PBO has received a confidential request in relation to a particular matter. A response from an agency that documents could not be released because a relevant exemption applied would in effect confirm the existence of the documents and the fact that a confidential request had been made to the Parliamentary Budget Office.
As noted above, Part IV of the FOI Act deals with exempt classes of documents. They are grouped according to exempt documents (Division 2) and public interest conditionally exempt documents (Division 3). Item 3 of Schedule 1 of the Bill inserts proposed section 45A into Division 2 of the FOI Act and provides a new exemption from disclosure for certain PBO documents. As a Division 2 exemption these documents will not be subject to a public interest test.
Proposed section 45A of the FOI Act will apply the exemption to documents that:
- originate from the PB Officer or PBO and the document was prepared in response to, or otherwise relates to, a confidential request
- are brought into existence for the dominant purpose of providing information to the PB Officer or PBO in relation to a confidential request
- are provided to the PB Officer or PBO in response to a request for more information in relation to a confidential request or
- are drafts of any of the above type of documents.
A document that is a copy or part of, or contains an extract from any of the above will also be an exempt document (proposed subsection 45A(2)).
Proposed subsection 45A(3) of the FOI Act provides that a document will also be exempt to the extent that it contains information which would reveal that a confidential request has been made to the PBO except where the confidential request has been disclosed by the Senator or Member who made the request.
Proposed subsections 45A(4) to 45(7) of the FOI Act set out situations where the PBO document exemption does not apply:
- a document is not exempt merely because it is attached to a document that would be covered by the exemption (proposed subsection 45A(4))
- a document is not exempt if the information has been made available by the PBO in accordance with the Parliamentary Service Act (proposed subsection 45A(5))
- a document is not exempt if the information has been made available by the Senator or the Member who made the confidential request to which the document relates (proposed subsection 45A(6)) and
- information in PBO documents which is ‘purely factual material’ is not exempt unless its disclosure would reveal the existence of a confidential request and the existence of the confidential request has not been disclosed by the Senator or Member (proposed subsection 45A(7)).
An integral part of the FOI regime is a right of review in relation to most decisions made under the Act. The FOI Act provides for internal review, review by the Information Commissioner and review by the Administrative Appeals Tribunal (AAT).
In relation to review by the Information Commissioner, sections 55R to 55Z of the FOI Act set out the Information Commissioner’s information gathering powers. Section 55T gives the Information Commissioner a power to require production of a document claimed to be exempt for the purposes of determining whether the document is exempt. Currently section 55U provides that in the case of a national security or Cabinet exemption claim, the Information Commissioner can only require production of the document if not satisfied on affidavit or other evidence that the document is exempt. Items 7 and 8 of Schedule 1 of the Bill amend section 55U to also apply the provision to PBO exempt documents. The effect would be that the Information Commissioner, when determining whether a document fits the PBO exemption, can only require production of the document if he or she is not satisfied on affidavit or other evidence that the document is exempt.
Items 9 and 10 of Schedule 1 of the Bill replicate this amendment in relation to section 58E of the FOI Act, a provision that deals with AAT information gathering powers for review of decisions. The effect of items 9 and 10 is that in hearings to do with a PBO exempt document, the AAT may only require production of the document if not satisfied on affidavit or other evidence that the document is exempt.
Item 12 of Schedule 1 is an application provision. It provides that Schedule 1 of the Bill will apply to all FOI requests made under section 15 of the FOI Act from the day after introduction of the Bill (that is, from 11 October 2012). The Attorney-General, in her second reading speech justifies this retrospective application on the basis of ‘the importance of this issue and the Parliamentary Budget Office's independence and integrity’.
Item 13 of Schedule 1 of the Bill makes a consequential amendment to section 34 of the Privacy Act to reflect the amendments to the FOI Act in items 1 and 2 (see above). Section 34 of the Privacy Act provides that the Information Commissioner in carrying out functions under the Privacy Act (for example investigating a possible breach of privacy by an agency) must not give a person any information as to the existence or non-existence of a document where it is exempt under the FOI Act. Currently the provision only applies in relation to exempt documents affecting national security, defence or international relations and documents affecting law enforcement and protection of public safety. Item 13 would extend section 34 to apply also to PBO exempt documents.
The Bill is not controversial to the extent that its purpose is essentially to fine-tune the PBO’s existing exemption under the FOI Act.
However the Bill does raise interesting questions when comparing it with recent developments relating to the application of the FOI Act to the other three parliamentary departments.
As noted above, since the revision of the FOI Guidelines in May 2012, the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services have been regarded as agencies to which the FOI Act applies. Previously it was commonly assumed that the FOI Act did not apply to these departments.
There are strong similarities between some of the functions of these three departments and the functions of the PBO. For example the Parliamentary Librarian within the Department of Parliamentary Service has a statutory obligation to provide high quality information, research and analysis to parliamentarians in support of their parliamentary and representational roles. Significantly these functions must be performed in a confidential manner and having regard to the independence of Parliament from the Executive Government. It could be argued that like the PB Officer, the Parliamentary Librarian should be specifically exempted from the FOI Act in order to properly undertake these functions. On the other hand, a partial exemption which Dr Laing recommended at Supplementary Estimates may be another option.
The Attorney-General’s second reading speech to the Bill states that the effect of the Bill is to ensure that the integrity of the PBO’s processes in those matters which are critical to the successful operation of the PBO will not be undermined. Parliament might like to consider that the FOI agency exemption together with the additional protections offered to the PBO by this Bill (which incidentally are being implemented retrospectively and hence with some haste) need also to be addressed sooner rather than later in relation to the work of the other parliamentary departments.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2438.
. Subitem 12(2) of Schedule 1 of the Bill.
. ‘Agency’ is defined at section 4 of the FOI Act as ‘a Department, a prescribed authority or a Norfolk Island authority’. ‘Department’ and ‘prescribed authority’ are also defined at section 4.
. Subsection 7(1) of the FOI Act. A list of exempt agencies can be found at Part I of Schedule, of the FOI Act. The Parliamentary Budget Officer is also deemed to be an exempt agency under this provision.
. Subsection 7(1) of the FOI Act. A list of agencies exempt in relation to particular documents can be found at Part II of Schedule 2 of the FOI Act.
. Section 31B of the, FOI Act.
. Subsection 11A(5) of the FOI Act. The factors to be taken into account when working out whether access to a conditionally exempt document would, on balance be contrary to the public interest are outlined at section 11B of the FOI Act.
. Parliamentary Service Act, section 64E, section 64V and section 64U.
. P Bowen, Submission, op. cit.
. See footnote 22 below.
. ‘Agency’ is defined at section 4 of the FOI Act as ‘a Department, a prescribed authority or a Norfolk Island authority’. ‘Department’ and ‘prescribed authority’ are also defined at section 4. As noted in footnote 2 above.
. See footnote 22 below for a report on the FOI Commissioner’s view.
. Section 93A of the FOI Act allows the Information Commissioner to issue written guidelines for the purposes of the FOI Act (the FOI Guidelines). Under subsection 93A(2) of the FOI Act, agencies must have regard to the FOI Guidelines when performing functions or exercising powers under the FOI Act.
. Section 54 of the Parliamentary Service Act establishes the Department of the Senate and the Department of the House of Representatives and provides for other Parliamentary Departments to be established by resolution of both Houses of Parliament.
. Australian Law Reform Commission (ALRC), Open government: a review of the federal Freedom of Information Act 1982, ALRC Report 77, 20 January 1996 (last modified 19 July 2012), viewed 29 October 2012, http://www.alrc.gov.au/report-77. It is subsequently referred to as the Open Government report.
. Australian Law Reform Commission (ALRC), Submission to Senate Standing Committee on Finance and Public Administration, Inquiry into the Freedom of Information Amendment (Reform) Bill 2009, (Cth) and the Information Commissioner Bill 2009 (Cth), 2010, p. 6, quoted in M Neilsen, op. cit.
. J McMillan, op. cit., p. 114.
. Explanatory Memorandum, p. 1.
. Australian Law Reform Commission, Open Government report, op. cit., p. 101.
. Confidential requests are defined in proposed subsection 45A(8) of the FOI Act to be requests made by a Senator or Member under paragraph 64E(1)(a) or (c) of the Parliamentary Service Act that include a direction to treat the request or any other information relating to the request as confidential.
. Parliamentary Service Act, section 38B.
. See pp. 7–8 of the Bills Digest.
. N Roxon, op. cit., p. 7.
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