|
Navigation: Previous Page | Contents | Next Page
Parliamentary
Service Amendment (Freedom of Information) Bill 2013
Introduced into the House of
Representatives on 29 May 2013
Portfolio:
Leader of the House
Summary of committee view
1.1
The committee seeks clarification as to why it is necessary to provide a
complete exemption for parliamentary departments and officers from the
application of the Freedom of Information Act 1982 and whether this is
proportionate to the objective of protecting the integrity of parliamentary
processes and the confidentiality of advice.
Overview
1.2
This bill seeks
to amend the Parliamentary Service Act 1999 to provide that a Department
of the Parliament, or a person who holds or performs the duty of an office established
under that Act, is not a 'prescribed authority' for the purposes of the Freedom
of Information Act 1982 (FOI Act). This would exempt parliamentary
departments and office holders under the Act from the application of the FOI
Act. The bill provides that the FOI Act is taken to have effect as if each
parliamentary department and office holder had never been taken to be a
prescribed authority since 1999 (from the date of application of the Parliamentary
Service Act 1999).
1.3
The bill is
intended to correct a recently discovered but unintended consequence of the Parliamentary
Service Act 1999 which inadvertently applied the FOI Act to the Department
of the Senate, Department of the House of Representatives and the Department of
Parliamentary Services. When the Parliamentary Budget Office was created it was
specifically exempted from the operation of the FOI Act and is not affected by
this bill. The committee notes that a review of the operation of the FOI Act is
currently being undertaken by Dr Allan Hawke AC, which includes examining the
appropriateness of the range of agencies covered, either in part or in whole,
by the FOI Act. The report was due to be provided to government by 30 April
2013, but has yet to be tabled in Parliament.[6]
Compatibility with human
rights
1.4
The bill is
accompanied by a self-contained statement of compatibility which states that
the bill engages the right to freedom of expression, including the right to
receive information, in article 19 of the International Covenant on Civil and
Political Rights (ICCPR). Article 19(2) of the ICCPR provides:
Everyone
shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
1.5
This right is
not absolute and may be limited; article 19(3) provides:
The exercise
of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary
(a) For
respect of the rights or reputations of others;
(b) For
the protection of national security or of public order (ordre public),
or of public health or morals.
1.6
The statement of
compatibility states that in exempting all parliamentary departments and
officers from the application of the FOI Act, while this may limit the right to
receive information, this limitation 'is
reasonable and proportionate to its objective of protecting the integrity of
the parliamentary service'.[7] In particular, the statement notes:
The Bill
protects public order by facilitating public administration, as it protects the
integrity of the parliamentary departments. ...
By its very
nature, much of this advice is provided on a confidential basis to senators and
members to inform their parliamentary work and deliberations, and to assist
them in carrying out their constitutional duties as members of Parliament ...
Although
some exemptions within the FOI Act may apply to documents held by the
parliamentary departments, there is no certainty that such exemptions would
apply to all FOI requests. In the absence of an exemption from the FOI Act to
ensure confidentiality, senators and members may be reluctant to request such advice, leading to a
deleterious effect on the work of the Parliament. Additionally, arguably such
advice should not be subject to the FOI Act because FOI disclosure could lead
to such advice becoming part of the political process, thereby potentially
jeopardising the ability of parliamentary officers to carry out their
legislative responsibility of providing "non-partisan and impartial"
advice and services to members of parliament.[8]
1.7
The committee
accepts that the bill seeks to achieve a legitimate objective of protecting the
integrity of the parliamentary process and the necessary confidentiality of
advice provided to senators and members. The committee also considers that, in
exempting the application of the FOI Act, there is a rational connection
between the limitation and the objective. However, it is not clear to the
committee why it is necessary to exclude parliamentary departments or officers
from the entire application of the FOI Act. The statement of compatibility
notes that some exemptions in the FOI Act may apply to documents held by
parliamentary departments, but that this may not apply to all FOI requests. It
is unclear to the committee why it is necessary to exclude all documents held
by parliamentary departments from the FOI Act, rather than strengthen the
existing exemptions. The committee notes that this is the approach taken in the
United Kingdom, where parliamentary departments are subject to freedom of
information laws, but there are exemptions, for example, for parliamentary
privilege.[9]
1.8
The committee
notes that the Leader of the House, in introducing the bill, stated that this
bill 'is an interim measure to preserve the right of the Parliament to make a
deliberate decision about the FOI status' of the various departments and noted
that there may be alternative approaches, giving the courts as an example
whereby the separation of powers is respected 'by the application of the FOI
Act to documents of an administrative character only'.[10]
However, while the intention may be that the bill may be an interim step only,
there is nothing on the face of the legislation that limits it in this way.
1.9
The
committee intends to write to the Leader of the House to seek clarification as
to why it is necessary to provide a complete exemption for parliamentary
departments and officers from the application of the FOI Act and whether this
is proportionate to the objective of protecting the integrity of parliamentary
processes and the confidentiality of advice.
Navigation: Previous Page | Contents | Next Page
Top
|