This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Wednesday, May 27, 2009
Access to advice: Senator Cormann responds
The following note from Senator Cormann regarding his exchanges with Minister Faulkner on Monday in Senate Estimates is worth a bit more space than the Comments section allows.
Thank you for your interest in the recent exchange between Senator Faulkner and myself during Senate Estimates. I was most interested in reading your account of that exchange, and like you I am keenly interested to see where the discussion will go from here.
For the purposes of completeness and accuracy I thought I would draw your attention to a few relevant matters.
Senator Faulkner was in fact quoting, not from the continuing order of the Senate, but from paragraph 2.32 of the government's guidelines for official witnesses before Parliamentary Committees (and selectively at that).
A copy of these guidelines is available here: http://www.pmc.gov.au/guidelines/docs/official_witnesses.pdf
Senator Faulkner at the Committee also suggested that there is a long-standing practice of not revealing the content of advice to Ministers.
I have since written to Senator Faulkner following up on our hearing on Monday to draw his attention to consistent advice by the Clerk of the Senate that there is no such long-standing practice.
Advice to ministers is frequently disclosed. Among many other examples, you might recall the last estimates hearings when the Secretary of the Treasury and the Governor of the Reserve Bank answered questions about the advice they had provided to government on dealing with the global financial crisis. It is clear from this and from many other such examples over many years that the mere fact that information consists of advice to government is not a barrier to its disclosure in the course of a committee inquiry.
Secondly, in relation to Senator Faulkner's selective quoting of paragraph 2.32 of the Government Guidelines for Public Service Witnesses - that provision does indeed indicate that material in the nature of advice relating to government deliberative processes may be withheld.
However, Senator Faulkner omitted to note (or quote) the particular effect of the proviso at the end of that paragraph: “where disclosure would be contrary to the public interest”.
Those words are marked for emphasis in the original text of the guidelines.
It is clear that the fact that information consists of advice is not in itself a ground for a public interest immunity claim, and that there must be a separate consideration of whether there is a public interest ground for not revealing the advice.
Persistent misunderstanding about these two points has led to constant difficulties in Senate committee hearings in the past, and it is one of the aims of the continuing order of the Senate of 13 May 2009 on Public Interest Immunity Claims to overcome that misunderstanding.
In very simple terms, the order of the Senate passed on 13 May 2009 requires that, if asked, a responsible Minister advance a recognised public interest ground and provide a statement with the reasons for not disclosing the particular advice which questions are being asked about.
I have asked Senator Faulkner to reconsider the position he took at Monday’s hearing of the Finance and Public Administration Committee, in particular, given the evidence by the Officer that the advice had not been provided in the context of Cabinet deliberations, but appeared to be more in the nature of routine advice as is requested by Ministers from time to time.
For those visitors to your blog with a particular interest in the matter I commend the debate between Senator Ludwig as Manager of Government Business and myself as mover of the motion in the Senate on 13 May, which can be accessed here: http://www.aph.gov.au/hansard/senate/dailys/ds130509.pdf
Thank you again for your interest in these important matters of government accountability.
Mathias Cormann Senator for Western Australia
The debate on the motion of Senator Cormann, subsequently adopted by the Senate on 13 May requiring reasons for any claim of public interest immunity and laying out a process to be followed where claims are made, is best accessed here through the wonderful resources of Open Australia.( Memo Senators: the publicly available search facilities on Hansard don't do the job.)
Well worth a read, particularly the following from the Clerk's advice of 19 May 2005:
"…the mere fact that information consists of advice to government is not a ground for refusing to disclose it. Again, some harm to the public interest must be established, such as prejudice to legal proceedings, disclosure of cabinet deliberations or prejudice to the Commonwealth's position in negotiations. Any general claim that advice should not be disclosed is defeated by the frequency with which governments disclose advice when they choose to do so."