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Friday, November 24, 2006

Clover Moore Bill to become law and require publication of NSW contracts

Two of the FOI amendments mentioned in our recent blog passed Parliament but the Legislative Assembly has concluded sittings and won't sit again before the March election so the Bill requiring independent review of the Act didn't survive the cut.

The Education Legislation Amendment Bill passed both Houses although not without quite a lot of discomfort on privacy grounds concerning the powers granted to gather and disseminate information about students who may pose a risk to safety. There were several amendments made during debate. The consequential FOI amendment is minor. Debate in the Legislative Council is here.

The NSW Legislative Council passed the Freedom of Information Amendment (Disclosure of Contracts) Bill on Wednesday, and it now awaits assent and will become law 28 days thereafter.

The text of the Bill as passed is here, and the debate in the Legislative Council here. The Government contribution to debate came down to - "The Government supports the Bill" said the Treasurer. Greens MLC Lee Rhiannon described it as "a grunt".

The Bill will require the publication of information on a designated government website of information about contracts, including the contracts themselves in the case of those that involve more than $5million. A summary of each contract above $150,000 (there are two classes of contracts) will also be required. The publication requirement is for the information to be posted on the website within 60 days after a government contract becomes effective. A material variation (not defined) must also be published within 60 days.

The Bill exempts from publication certain information including commercial-in-confidence provisions as defined. It will also not apply to contracts entered into by the Department of State and Regional Development that involve the provision of industry support.

The legislation will apply to any agency subject to the NSW FOI Act except State Owned Corporations. While local councils are excluded, the Bill says regulations may be made to apply all or any of the publishing requirements (or a modified version) to them.

The Bill adds to the business affairs exemption in the FOIA, a new limited exemption of "commercial-in-confidence".

The legislation was the initiative of Independent Member for Bligh, Clover Moore, following an earlier attempt to have similar legislation adopted by Legislative Council Democrat Arthur Chesterfield-Evans.

While it's very welcome, it's hardly earth shattering given that similar requirements have existed in other Australian jurisdictions for some years and are commonplace overseas.

There are some interesting issues arising. For example the law will apply to an "agency" as defined in the FOI Act. In addition to state government bodies, this includes any organisation established by an act for a public purpose.

While universities and other bodies have long accepted that the Act applies to them, no one to my knowledge has ever put together a full list of who might be covered by this provision. One of the first ADT cases in NSW, for example found the Royal Society for the Prevention of Cruelty to Animals was an agency for FOI purposes, and now presumably for the publication of contract purposes. There are probably quite a few others that we normally don't associate with "government" who may be subject to these new requirements.

Depending on when the legislation receives assent, it could be a busy Christmas end of year for those who are responsible for making it all ready to work.

Congratulations Clover.

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