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Introduced into the House of
Representatives on 10 October 2012
Portfolio: Attorney-General
Committee view
1.2
The committee considers that the FOI exemption for documents related to
requests to the Parliamentary Budget Office is, in the circumstances, justified
and likely to be consistent with the right to freedom of expression in article
19 of International Covenant on Civil and Political Rights (ICCPR).
Purpose of the bill
1.3
The bill amends the Freedom of Information Act 1982 (FOI
Act) to provide a new FOI exemption for documents related to requests to the
Parliamentary Budget Office (PBO).
1.4
The establishment of the PBO allows all parliamentary parties and
Independent members to have their policies costed by the PBO. Members and Senators
will be able to request confidential information relating to the budget and
also request confidential policy costings from the PBO outside of the caretaker
period of a general election. During general elections policy costings
will be made available to the public.
Compatibility with human rights
1.5
The statement of compatibility explains that while the PBO is an exempt
agency under the FOI Act, documents related to PBO requests may be held by departments
and other agencies. The bill amends the FOI Act to provide an exemption
for information held by departments and agencies that relates to a confidential
request to the PBO. According to the statement, ‘this 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’.
1.6
Specifically the bill amends section 25 of the FOI Act to provide that
an agency is not required to give information as to the existence or
non-existence of a document where it is exempt under the new exemption for
documents that relate to a confidential request to the PBO.
1.7
The committee notes that the Australian Information Commissioner and the
Freedom of Information Commissioner stated in a submission to the Senate Legal
and Constitutional Affairs Legislation Committee's inquiry into the bill that:
We accept that the exemption
from the FOI Act of documents in the possession of the PBO and PBO-related
documents held by other agencies, rest on the same policy rationale. The bill
does not appear to go further than necessary to effect that policy intent in
the FOI Act...
The Parliament agreed to the
exemption of the PBO in 2011. We accept that the current Bill corrects an
unintended consequence of the narrow scope of the earlier exemption.
Freedom of expression
1.8
The statement of compatibility states that the bill engages and limits
the right to freedom of expression in article 19 of the International Covenant
on Civil and Political Rights (ICCPR) because it ‘limits the right of
individuals to receive information’.
1.9
The statement notes that the right to freedom of expression can be
limited in particular circumstances, including where it is necessary to protect
public order. It provides the following justification for the limitation:
The
Bill protects public order by enhancing public administration. Specifically,
the objective of the Bill is to protect the integrity of the PBO. The role of
the PBO is to inform the Parliament by providing independent and non-partisan
analysis of the budget cycle, fiscal policy and the financial implications of
proposals. This analysis is an important element of policy development and
public administration. Senator and members may be reluctant to request such
analysis from the PBO in the absence of certainty that information provided in
response to confidential requests will not be released under the FOI Act. The
Bill provides this assurance.
The
Bill is necessary because its objectives cannot be achieved by relying on
existing exemptions in the FOI Act. Although existing exemptions may apply to
some potential FOI requests relating to PBO related documents held by agencies,
it cannot be said with certainty that they would apply to all such requests.
Moreover, agencies do not currently have the option of confirming or denying
the existence of a confidential PBO request.
The
Bill’s limitation of the right of individuals to receive information is
reasonable and proportionate to its objective of protecting the integrity of
the PBO. This is because the Bill will protect the integrity of the PBO while
having a minimal impact on the amount of government information withheld from
the public. It is important to note that the work of the PBO is undertaken for
the benefit of the Parliament and does not inform government decision making.
The Bill will not disproportionately affect any particular group.
1.10
The committee notes that article 19 of ICCPR does not expressly provide
for a positive right to access government-held information. However,
international human rights jurisprudence has increasingly recognised that such
a right may be said to derive from the right to freedom of expression. To the
extent that such a right could be implied, the right to freedom of expression
is not an absolute right and it is accepted that the right may be legitimately
subject to reasonable restrictions.
1.11
In this case, it would appear that access to the relevant information
may be refused only in narrowly defined circumstances and where necessary to
protect the integrity of the PBO, which can be considered to be a legitimate
interest. In addition, subject to the requirements in item 8, subsection 58B(1)
and item 9, subsection 58E(1), persons who are refused access have a means of
challenging the refusal before the AAT, which is an independent body.
1.12
The committee considers that the Attorney-General has discharged the
burden of demonstrating that the new FOI exemption for documents related to
requests to the PBO is, in the circumstances, justified and likely to be
consistent with article 19 of ICCPR.
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