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.
I would like to concur with the remarks made by the minister who introduced the Parliamentary Service Amendment (Freedom of Information) Bill 2013, and again state that the aim of the bill is to restore the exclusion from the Freedom of Information Act the parliamentary departments and office holders under the act.
I would like to add some remarks, particularly about the library and the difficult position that the librarian has been placed in. Indeed, it has been a long-held and common-held view that the parliamentary departments were exempt from the FOI legislation. But in the case of the library, the determination by the information commissioner to the contrary—that is, saying that they are covered by the FOI Act—has placed the librarian in a very difficult position indeed. Indeed, the librarian is conflicted by that determination because it is in contradistinction to the provisions of the Parliamentary Services Act, notably section 38B and sections 45 and 46.
In January 2003 the librarian took the initiative, an important one, to write to all members and senators and other interested parties, pointing out the degree of difficulty she was placed in. And I would quote section 38B, which says:
(1) The functions of the Parliamentary Librarian are:
(a) to provide high quality information, analysis and advice to Senators and Members of the House of Representatives …
… … …
(2) The Parliamentary Librarian must perform the function mentioned in paragraph (1)(a):
(a) in a timely, impartial and confidential manner; …
She went on to say that although the commissioner thought this was too broad to cover everything, a senator's or member's request for advice and the librarian's response may qualify to be exempt under the act, particularly and notably under section 45, which was a breach of confidence provision, and section 46, which was about infringing the privileges of parliament. Indeed, she felt that other exemptions may be available.
I think it may be necessary, therefore, to place these matters beyond doubt. The librarian said:
I would like to assure you that, should I receive an application for access to client service under the FOI Act, my starting point would be that, in accordance with my statutory functions, information, analysis and advice provided by the Library to its clients is confidential. Unless I have evidence that something has taken place that demonstrates that none of the available exemptions apply, I would consider the advice to be exempt and refuse access to the document on this basis. I would also consider information relating to the making and timing of the request confidential.
Accordingly, I think it is vital that the parliament put the question beyond doubt and legislate to protect the librarian and uphold her duties under her relevant act. And should there be considered at any time in the future the need for legislation to be made to say specifically that certain things should be subject to the act, then that can be decided on its merits. So the opposition supports the legislation.
I thank the opposition for their assistance in facilitating passage of this important legislation, the Parliamentary Service Amendment (Freedom of Information) Bill 2013. I am pleased to be able to move this legislation as the Leader of the House of Representatives and with the support of all the members of the House of Representatives and, I am sure, of all senators as well.
Speaker, we had a discussion before about privileges matters relating to a committee and that should have served as a reminder of the fact that, for this parliament to conduct its business appropriately, the House of Representatives and its processes, the Senate and its processes and the very vital role that the Parliamentary Library plays in providing confidential advice to members of parliament must be sacrosanct. It would literally be an undermining of democracy and of the ability for the parliament to perform its important functions if this legislation was not carried and the position made clear. Hence, this is very much a sensible, practical change to restore the status quo pending the consideration of the Hawke review recommendations.
The process was led by the Presiding Officers, and I thank you, Speaker, and the President of the Senate as well as the parliamentary departments for coordinating this process. The process does highlight the cooperative way that we operate in this building more often than most people realise. It is important that the parliament and our processes be respected. This legislation does that and I commend it to the House.