Tuesday, 18 June 2013
Parliamentary Service Amendment (Freedom of Information) Bill 2013; Second Reading
I rise today to speak on the Parliamentary Service Amendment (Freedom of Information) Bill 2013. At the outset I concur with remarks made by the government in the tabled second reading speech, and in the other place by the minister and the shadow minister. This bill amends the Parliamentary Service Act 1999 to restore the longstanding and previously understood position of three parliamentary departments: the Department of Parliamentary Services, the Department of the House of Representatives and the Department of the Senate. These three departments were historically excluded from the operation of the Freedom of Information Act.
There are longstanding justifications and reasons for this, particularly regarding the ability of members and senators to go about their respective duties and the rights and privileges of the houses to determine their own affairs. The Parliamentary Budget Office is not covered by this bill as it is already designated an agency exempt from the legislation that created it. I should add that the parliamentary departments cooperate with the spirit of the FOI act by providing access to administrative information when requested. Both DPS and the Department of the Senate also come before the Senate Finance and Public Administration Committee during estimates hearings, are questioned in detail and provide information in that forum.
This bill is necessary due to the inadvertent removal of the exemption by the creation of a separate Parliamentary Service in 1999 that became apparent only last year. This became apparent to all members and senators when the parliamentary librarian was placed in a difficult position through a determination by the Information Commissioner that the assumed exemption had, for a long time, no longer applied. This placed the librarian in a conflicted position, with the Parliamentary Service Act requiring the role to be undertaken in confidence but with the FOI regime no longer guaranteeing this.
It is entirely correct that this issue be placed beyond doubt. If, at a future time, the parliament wishes to make certain aspects of the operations of parliamentary departments subject to the FOI regime then this bill preserves that possibility. The coalition supports the bill.
The Parliamentary Service Amendment (Freedom of Information) Bill 2013 should retain the status quo of keeping parliamentary departments and office holders subject to the FOI act. As we know, it was long thought that the three parliamentary departments—the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services—were exempt from FOI. Then, in May 2012 the Information Commissioner, in guidelines to the FOI act, noted that these departments were, in fact, covered. This bill is the government's attempt, with the support of the coalition, to close the loop opened by the Information Commissioner's ruling—a ruling which has the potential to do what the Prime Minister promised when she formed government, and what we often hear politicians speak about: provide open, transparent, accountable government. You can only achieve that with certain information being available.
The Greens oppose this bill as it is an obstacle to that transparency and reflects a watering-down of FOI laws. These parliamentary departments spend hundreds of millions a year in public money, and they should be open to public scrutiny. This will go a long way towards maintaining confidence in our democracy and will also avoid the potential for corruption. That is something we need to focus on, because we are aware of serious problems that can arise with governments. We have seen this in New South Wales. ICAC has been able to delve into this, but with greater availability and greater possibility for public scrutiny of how money is spent we have further obstacles to corrupt behaviour developing.
One of the Greens amendments would require MPs to disclose their pay and to link directly on their websites to the individual expenditure reports for their allowances. This should be nothing unusual, and should be standard practice. In the future, if this amendment passes, I am sure it will one day become standard practice. It is happening in many other jurisdictions. The Greens have always upheld the principle of greater transparency on MPs' expenses and other public spending. Sadly, the bill is being rushed through and pre-empts the tabling of a major FOI review, the Hawke review, which will look specifically at FOI coverage for parliamentary departments.
This bill, this debate, should not precede without us having the opportunity to be informed by that review.
When it comes to FOI, Australia lags behind other jurisdictions. For example Britain, the home of the Westminster system, is streets ahead of us when it comes to FOI. Current exemptions in FOI laws are sufficient to protect genuinely sensitive material. I want to give emphasis to this because often when I raise it there is a little bit of a scare comment put around like: 'This is not fair, because constituents would have their emails revealed.' We can put all the protections in place. The Greens amendments absolutely achieve that by putting the protections in place so that the issue of privilege is respected; and, at the same time, we can have the all-important thorough public scrutiny.
It had long been assumed that the three parliamentary departments were exempt from FOI. In May 2012 the Information Commissioner noted that these departments were, in fact, covered. The Attorney-General at the time, Nicola Roxon, characterised this as an anomaly. Coming from a government that came into office with a commitment to greater transparency, I was concerned at the language she used; it was very much downplaying the significance of this situation. Still, the Hawke review was established and the terms of reference for the review were designed to include review of the very issue that we are talking about now. That is why I say it is poor form that this bill is being rushed through before we can be informed by that review.
The exclusion of parliamentary departments has long been criticised in Australia. I think it is important that senators focus on that point because these are significant criticisms of the failure of these departments to be covered. The Australian Law Reform Commission recommended their inclusion in 1996. During this review the then Clerk of the Senate, Mr Harry Evans, argued for the extension of the FOI Act to parliamentary departments, noting that exemptions already protect genuinely sensitive documents. I want to emphasise that that protection is there; it can be achieved. Once we have that protection in place, the arguments from Labor and the coalition, and their excuses for not opening up these departments to greater public scrutiny, fall away. The Greens submission to the Hawke review recommended that no amendments be made to exclude parliamentary departments from FOI.
Now that we are seeing this move from both the government and the coalition, it does highlight how Australia fails best practice in FOI. This is a real negative against a parliament that has so many fine aspects. One thing that I always find absolutely outstanding in this parliament is the committee process, and it is something that has certainly been picked up by other jurisdictions. But when it comes to FOI, it is an area where we cannot be proud.
The respected Carter Centre, in the USA, advocates that all three government branches be subject to FOI law, and that other jurisdictions should subject the parliament to FOI law. Westminster, as I said, has been subject to FOI law for eight years now, and government departments in Scotland, India, Ireland, South Africa and Mexico are covered to different degrees. That is why I gave emphasis to the fact that Australia is falling behind—and certainly it is not to our credit. Within our own country, the situation in Tasmania is interesting. They have made some positive moves in this area. Tasmania's Right to Information Act 2009 covers requests to parliamentary departments but is limited to administrative matters.
I go back to the example of Scotland. They have online, searchable records of MPs' expenditure. It is very easy to do. Again, in time, as the whole necessity of making information available is recognised more widely, I am sure this will happen. Hopefully, it will happen tonight, but from what I am hearing it does not sound likely. Certainly, Scotland have established that and it is something that we should look to.
In 2012, the New Zealand Law Commission recommended FOI coverage, and those recommendations form the basis of the Greens' proposed amendments.
The UK Freedom of Information Act enables the Speaker of the House of Commons or the Clerk of the Parliaments to certify on a case-by-case basis that information is exempt when necessary to avoid infringement of the privileges of either house or where, in the reasonable opinion of the Speaker of the House of Commons or the Clerk of the Parliaments, disclosure would be likely to prejudice the effective conduct of public affairs. I wanted to give that considerable emphasis because it highlights how protections and safeguards can be put in place. We can continue to do our work without undermining privilege. We can achieve a balance, and that is what the Greens' amendments are attempting to do.
I will briefly cover our amendments. The first Greens' amendment is designed to narrow the full application of FOI to the three parliamentary departments by specifically defining what information held by the parliamentary departments is subject to FOI. For example, documents subject to FOI would include salaries and additional salaries for office-holders, electorate allowances, superannuation, and services and facilities to support parliamentarians in Parliament House. The Greens believe there is no reasonable excuse for shielding this information about public expenditure from public scrutiny. The speeches that I heard from Labor and the coalition when this issue was being debated and spoken about provide no good reason why that should not occur. If they cannot come up with some good reasons, they start to look very self-serving.
Now, if that amendment is voted down, the Greens will move a second amendment, to limit requests for access to documents relating to matters of an administrative nature only. It should be difficult for the major parties to justify not supporting this lesser, second amendment, because even the parliamentary departments themselves have publicly supported this position. I wanted to emphasise that, because we have found it difficult to get the government to focus on our amendments, but the parliamentary departments have themselves said that they support being covered that way—certainly, it is in limited form, which is not the Greens' first preference, but it is something that those departments support.
Neither of these amendments would affect the existing exemptions under the FOI Act—for example, for cabinet documents, national security, legal professional privilege, electoral rolls or contempt of parliament. The Greens' amendments explicitly ensure that these exemptions would still apply to enable these three parliamentary departments to protect sensitive material, including an absolute exemption for parliamentary privilege. Many of the likely applicable exemptions under the act are conditional exemptions, such as for deliberative documents, personal privacy and business affairs, which are also subject to a public interest test. Obviously, I commend to the Senate these Greens' amendments to keep the parliamentary departments subject to FOI as an important measure to protect the democratic principles of transparency and accountability.
I finish with the words of the Prime Minister herself, speaking on this issue back in September 2010, when she had just been elected. In her announcement about forming government, she stated:
What the Australian people told us, and they told us this in no uncertain terms on that day and on the days that have followed, is this: that we will be held more accountable than ever before, and more than any government in modern memory. We will be held to higher standards of transparency and reform, and it’s in that spirit that I approach the task of forming a government.
Then on the ABC's 7.30 Report, when she was interviewed at the same time, she stated:
People do want to see us more open, more accountable, more transparent.
That is a strong, clear statement. But how can that be achieved if we do not have FOI laws that are at least to the standard that other Westminster countries have now achieved?
I will make a very short contribution. I think Senator Williams said that I had 2½ minutes, which is very generous of him. I indicate that the controversy in relation to this bill is that there is a perception that the parliament is exempt from the standards of freedom of information. I note that the second reading speech of this bill refers to this as an interim measure. It is a transitional measure, pending a review—an overall review; a long overdue review—of freedom of information legislation.
It is clear that there are some circumstances, when a parliamentarian obtains information, where there are good public interest reasons for that information not to be disclosed, particularly if you are dealing with constituents and other sensitive matters. I think that that would fetter the work of a parliamentarian. The amendments moved by Senator Rhiannon appear to me to be quite sensible. They are attempting to deal with matters that are currently the subject of the review, but I think that these amendments would improve this bill appreciably. It would lead to greater transparency, in a way that would not fetter the work of members of parliament when they are dealing with constituents or on matters where privilege may apply.
For those reasons, I can indicate that, whilst I support the bill with some reservations, I think this bill would be significantly improved with the amendments that Senator Rhiannon has proposed. I hope that these amendments will at least be considered seriously by my colleagues on both sides.