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Friday, January 22, 2010

Senate powers to access documents one of the issues for 2010

The  Senate Finance and Public Administration Committee will be sharpening the pencil this week and next with a report due on 2 February on a problem former Clerk of the Senate Harry Evans describes as one of the biggest facing legislatures around the world: what should be done when a minister, on claimed public interest immunity grounds, refuses to produce documents in response to an order, and the Senate only has a broad statement of reasons  for the claim?

The Committee is considering a proposal to call on an independent arbiter to determine if the claims are justified. Since the resolution was referred last November, the Committee received 11 submissions and held a hearing in Sydney on 7 December.

Here's Harry Evans in his first appearance before a senate committee in a private capacity, on the nature of the problem, and how the resolution might help:
A large part of the problem is that Public Service departments have an instinctive reaction to withhold information from disclosure. If a committee or the Senate itself asks for something and there a vague idea that it is sensitive in some way or it is something that has not been published, the instinctive reaction of government departments is to say, ‘No, you can’t have it,’ and then to think up some plausible reasons why you cannot have it. Then it goes to the minister and the minister more or less feels obliged to support the department. Ministers are naturally reluctant to overrule their department and say: ‘No. I think this information should be disclosed’—although, good ministers should know how to do that. So you have the problem of these cases remaining unresolved.

If this system were in place, I hope it would deal with the problem at the source back in the department, where departmental officers would say to themselves: ‘If we say they can’t have it, it has to go to the minister and the minister has to make a decision and then, if the Senate is not satisfied, it will go off to this arbitration and we will have to make a submission or produce the information to the arbitrator. That is a very time-consuming and troublesome process. Let’s think more carefully about whether we can really let them have it in the first place.’ I hope that would be the deterrent effect of this process being in place—right back at the source, officers of departments will think more carefully about whether there really are any persuasive and valid reasons for withholding information in the first place.
The weight of evidence before the Committee suggests the need, if much is to be accomplished, to come up with something stronger than what was proposed - asking the Auditor General (in any claim of commercial in confidence) or an otherwise independent arbiter (in the case of other claims) for a report based on the Minister's stated reasons. The Government is unlikely to find some of the suggestions in submissions and evidence palatable.
Professor Anne Twomey, who has researched and written about the NSW scheme, says the whole exercise will be a waste of time if the proposal goes ahead without a requirement to produce documents to the arbiter. She has other concerns about the proposed resolution, and urged the Committee to ensure the resolution contained clear rules about what qualified for a public interest immunity claim and what did not.

Clerk of the NSW Legislative Council Lynn Lovelock can't see how the scheme can work without the documents being available to the arbiter. Auditor General Ian McPhee doesn't want a role in any of this, saying that asking him to arbitrate goes beyond traditional functions of his office. Commonwealth Ombudsman Professor John McMillan sees merit, and alignment of functions, in giving the arbiter's job to the proposed Information Commissioner.

There is much in the submissions and the Committee transcript about the existing NSW and Victorian schemes where this issue arises in their upper houses. Victoria admits its approach is underdeveloped-there is no arbiter- but Government refusal to respond to an order the Legislative Council has seen the Leader (the Treasurer) suspended for two short periods.

The NSW scheme (developed with the benefit of two court cases concerning powers, one of which ended up in the High Court) provides that on passage of a resolution the Government is required to produce all relevant documents except cabinet documents-and there are rumblings over the fact that for this category the Government's claim has to be taken at its word. 

There have been 250 orders by the Legislative Council since 1999. All documents produced are available for inspection by any member of the Council, including documents provided but claimed as privileged. Any disclosure of privileged information by a member as a result would constitute contempt of Parliament. All documents other than those claimed as privileged are available to the public. Privileged documents are not available to the public unless the Council orders. Where any member disputes a privilege claim, an independent legal arbiter assesses the claim. The arbiter has access to the government’s reasons for the claim, the documents subject to the claim, an index to the documents and the member’s correspondence disputing the claim, including any reasons for the dispute which that correspondence may contain. Once the arbiter has reported in relation to the claim, the Council decides whether to make the documents public. If the Council takes no action, the documents remain accessible only to members.

Lynn Lovelock told the Committee the process worked very well, and that members were satisfied. However  Professor Twomey has reservations about questionable use of the orders to produce, and the fact that often little or no examination of the documents produced takes place. When asked whether it has been a net positive for accountability as far as holding the executive to account goes, she responded:
Professor Twomey—I do not know. I think it would be a really interesting study, and if I ever find a PhD student who is willing to do it I would push them in that direction. It is an area that has not yet been properly assessed. What you really need to do, something that I have never had the time to do—again, it would take someone a very long time to do this—is to look at each one of those calls for the production of documents, look at how the documents have actually been used, how many of them have been discussed in parliament, how many were used in relation to a parliamentary committee and how many were looked at or not looked at at all. As I mentioned in that article, I had some difficulty even getting the register that the clerk keeps to show how many people actually looked at these documents. I was told that it might ‘bring the Legislative Council into disrepute’ if I were to see it. If you had access to that information, how many of the documents were looked at, and if you analysed Hansard and committee reports to see how they were used, then you could come up with some kind of assessment as to what proportion of them were needed, were used and did produce some potential change. At the moment I just could not make that assessment and I doubt that anyone could, because I do not think anyone has done the work to get you that answer.
She also had some interesting hings to say about the approach of the arbiter used in over 90% of referrals, describing former NSW Chief Justice Sir Laurence Street's application of the public interest immunity test as "eccentric."

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