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Parliamentary Service Amendment (Freedom of Information) Bill 2013

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2010-2011-2012-2013

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

PARLIAMENTARY SERVICE AMENDMENT                                                              (FREEDOM OF INFORMATION) BILL 2013

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the

Leader of the House, the Hon Anthony Albanese MP )



 

PARLIAMENTARY SERVICE AMENDMENT (FREEDOM OF INFORMATION) BILL 2013

OUTLINE

The Parliamentary Service Amendment (Freedom of Information) Bill 2013 (the Bill) amends the Parliamentary Service Act 1999 (the Act) to restore the exclusion from the Freedom of Information Act 1982 for parliamentary departments and office holders under the Act.

FINANCIAL IMPACT STATEMENT

The Bill has no financial impact. 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Parliamentary Service Amendment (Freedom of Information) Bill 2013

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Objective of the Bill 

The Parliamentary Service Amendment (Freedom of Information) Bill 2013 (the Bill) amends the Parliamentary Service Act 1999 (the Act) to restore the exclusion from the Freedom of Information Act 1982 (the FOI Act) for parliamentary departments and office holders under the Act.

The Bill inserts a new section 68A into the Act to provide that a Department of the Parliament established under the Act, or a person who holds or performs the duty of an office established under the Act, is not a 'prescribed authority' for the purposes of the FOI Act.  This means that the FOI Act would not apply to parliamentary departments, or a person who holds or performs the duty of an office established under the Act.

The Bill corrects a recently discovered but unintended consequence of the enactment 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 Department of Parliamentary Services.  The Parliamentary Budget Office was specifically exempted on its creation from the operation of the FOI Act and is not affected by these measures.  This Bill will preserve the Parliament's right to legislate in future to apply the FOI Act to appropriate aspects of the Parliament's operations, should it choose to do so.  

Human rights implications

Freedom of expression

The Bill engages article 19 of the International Covenant on Civil and Political Rights (ICCPR), of which 19(2) provides that:

"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 media of his choice."

However, article 19(3) further provides that:

"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.”

The Bill protects public order by facilitating public administration, as it protects the integrity of the parliamentary departments.  The role of these departments, as required by the Act, is to provide "professional advice and support for the Parliament independently of the Executive Government of the Commonwealth".  It does this, in part, by providing "non-partisan and impartial advice and services to each House of the Parliament, to committees of each House, to joint committees of both Houses and to Senators and Members of the House of Representatives" (see s10 of the Act).  This work is undertaken for the support and benefit of the Parliament, is independent of the Executive, and is separate from, and does not inform, government decision making.

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 (examples of such advice could include advice from a Clerk to a senator or member on a constitutional matter, or advice from the Parliamentary Library to a senator or member about a bill before Parliament).  It follows then, that the provision of such (confidential) advice to senators and members is at the heart of the work of the parliamentary departments, and is an important part of parliamentary policy development and public administration.

The Bill is necessary because its purpose cannot be achieved by relying on existing legislation or by relying on other existing exemptions within the FOI Act itself. 

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.

Although this Bill does limit the right of individuals in some way to receive information, it should be noted that article 19 of the ICCPR does not provide a positive right for individuals to access information held by government.  Further, although some international human rights jurisprudence has pointed to the possible existence of a right to such information that may itself be derived from the right to freedom of expression, the Committee's own comments in this context are helpful: "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]

Using the Committee's direction, the limitation on the rights of the individual set out in this Bill is reasonable and proportionate to its objective of protecting the integrity of the parliamentary service.  The work of the parliamentary departments is undertaken for the benefit of Parliament, and does not inform government decision making processes.  Therefore the amount of government information that would be withheld from the public as a result of this Bill is minimal.  Additionally, the Bill does not disproportionately affect any particular group.

Accordingly, the Bill's limitation of this right is reasonable and proportionate to its purpose of protecting the integrity of parliamentary processes, and the necessary confidentiality of advice provided to senators and members. 

Retrospectivity

Item 2 of the Bill has retrospective application.  This item provides that the FOI Act is taken to have the effect it would have, on parliamentary departments, and those holding, or performing the duties of, an office under the Act, if the department or person had not been taken to have been a prescribed authority for the purposes for the FOI Act.

Article 15 of the ICCPR goes to retrospective application of the law, and provides that a person shall not be held guilty of a criminal offence, if at the relevant time, the person's actions did not constitute a criminal offence.  However, the provision in the Bill is not, and does not relate to, a criminal offence, and therefore does not engage Article 15 of the ICCPR.

Regardless, however, the retrospectivity is justified on the basis that it restores what was widely thought to be the position and it preserves the rights of the Parliament to make an informed decision at a future date about whether the FOI Act might apply to parliamentary departments.  Given the potential impact on parliamentary privilege, it is preferable for such a significant policy decision to be determined deliberately, and with appropriate qualifications, rather than by inadvertence.

Conclusion

This Bill is compatible with human rights because its limitation of the rights protected by Article 19 of the ICCPR is reasonable, necessary and proportionate.  Therefore, to the extent that the Bill engages with human rights, it does so in a reasonable, necessary and proportionate way.

 



 

NOTES ON CLAUSES

Clause 1: Short title

1.                   This clause is a formal clause which provides the citation of the Bill.

Clause 2: Commencement

2.                   This clause provides that the Bill will commence on the day the Act receives the Royal Assent.

Clause 3: Schedules

3.                   This clause provides that each Act specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.

 



 

SCHEDULE 1—Amendments

Parliamentary Service Act 1999

Item 1: Before section 69

4.                   This item inserts a new section 68A which provides that a parliamentary department, or a person who holds or performs the duties of an office established under the Act, is not a "prescribed authority" for the purposes of the Freedom of Information Act 1982 (the FOI Act).

Section 68A: Departments and office holders not prescribed authorities for Freedom of Information Act purposes

5.                   The effect of this amendment is to exclude the parliamentary departments, and those holding, or performing the duties of an office under the Act, from the application of the FOI Act.

 

6.                   The original FOI legislation did not apply to the Parliament or to the parliamentary departments.  There were clear policy reasons for the parliamentary departments to be considered as a separate branch of government and not to be subject to a regime designed to facilitate access to documents held by the executive government.

 

7.                   In 1999, the parliamentary departments were established as a separate service under the Parliamentary Service Act 1999 with no changes in policy regarding the application of other legislation.  Success parliaments and governments continued to consider the parliamentary departments as being excluded from the application of the FOI Act.  However, it has become apparent that the passage of the Parliamentary Service Act 1999 may have inadvertently and unintentionally exposed the parliamentary departments to coverage by the FOI Act (other than the recently established Parliamentary Budget Office which is specifically exempted from the FOI Act).

 

8.                   The purpose of the amendment is to restore the status quo by providing that a parliamentary department, or a person who holds or performs the duties of an office established under the Act, is not a "prescribed authority" for the purposes of the FOI Act.  It is proposed that this amendment have effect from the date that the Parliamentary Service Amendment Act 2013 receives the Royal Assent.

 

Item 2: Transitional

9.                   This item confirms that the FOI Act is taken to have the effect it would have otherwise had, had each parliamentary department, or person who held, or performed the duties of, an office established under the Act, not been taken to have been a " prescribed authority" for the purposes of the FOI Act. The effect of this amendment is that the FOI Act will be taken to have never applied to the parliamentary departments, or to a person who held, or performed the duties of an office, established under the Act.  The amendment therefore has retrospective application.

 

10.               This retrospectivity is justified on the basis that it restores what was widely thought to be the position (that is, that the parliamentary departments are not subject to the FOI Act) and it preserves the rights of the Parliament to make an informed decision at a future date about the basis (if any) on which the FOI Act might apply.




[1] Parliamentary Joint Committee on Human Rights, Sixth Report of 2012 (31 October 2012) p.4.