Wednesday, 29 May 2013
Parliamentary Service Amendment (Freedom of Information) Bill 2013; Second Reading
That this bill be now read a second time.
The Parliamentary Service Amendment (Freedom of Information) Bill 2013 amends the Parliamentary Service Act 1999 to restore the previously understood position of three of the four parliamentary departments in relation to the operation of the Freedom of Information Act 1982 (FOI Act). The bill does not affect the Parliamentary Budget Office which the parliament has already designated as an exempt agency under the FOI Act.
Historically, the parliamentary departments were excluded from the application of the FOI Act. The Senate committee that examined the original bill saw no great justification for exempting the parliamentary departments in full, but found it difficult to draw an appropriate boundary between information that should normally be accessible and that which, if disclosed, would interfere with the ability of the Houses, their committees and their members to carry out their functions. Accordingly, the parliamentary departments continued to be outside the coverage of the FOI Act, an exclusion which was confirmed by later amendments affecting the Public Service. When a separate parliamentary service was created in 1999, it is now apparent that the FOI-exempt status of the three parliamentary departments was inadvertently removed.
The parliamentary departments have over a long period of time cooperated with the spirit of the FOI Act by providing access to administrative information, but this was done on a voluntary basis and without the legal protections that would have been available under a scheme tailored to the needs of the parliament. As a result of the inadvertent removal of their exemption, it is now apparent that the parliamentary departments are now subject to an act which was not designed to take into account the constitutional position of the parliament.
In introducing this bill, I emphasise that it is an interim measure to preserve the right of the parliament to make a deliberate decision about the FOI status of the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services. This step has been prompted by concerns expressed by the Joint Committee on the Parliamentary Library about the library's ability to continue to provide individual members and senators with research and advice on a confidential basis in an environment where FOI access decisions are ultimately made by agents of the executive government and by the courts. The potential for such decisions to undermine the rights of parliament and its members is considerable.
There are alternative approaches in the FOI Act which may provide a solution. In relation to the courts, for example, the separation of powers is respected by the application of the FOI Act to documents of an administrative character only. A comparable arrangement applies to the Office of the Official Secretary to the Governor-General.
Major FOI reforms agreed to in 2010 included provision for a review of the changes and related issues after a period of two years. The Presiding Officers welcomed this review as an opportunity to re-examine the application of the FOI Act to the parliamentary departments, and the basis on which the act might appropriately apply in future.
This bill seeks to restore the status quo, pending consideration of the review's recommendations. Application of the FOI Act to the parliamentary departments should be on a basis that takes into account the constitutional separation of the Houses and the unique functions of their members.
I commend the bill to the House.