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Friday, April 20, 2012

NBN Co FOI performance review won't examine broader exclusion issues

Attorney-General Nicola Roxon announced this week that what has ensued since June 2011 when NBN Co commenced operating under the Commonwealth Freedom of Information Act (albeit with coverage limited to documents that don't concern commercial activities) will be reviewed by a yet to be named eminent person. 

The review stems from an agreement between the government and The Greens reached at the time the amendment was passed to bring NBN Co under FOI law a year ago. The Greens were wary that the government formulation of the NBN Co exemption, along the lines of long standing exemptions enjoyed by other GBEs and similar bodies, left too much room for avoiding disclosure, hence the agreed review of performance in return for their votes. At the time Malcolm Turnbull of the Opposition was convinced The Greens had been conned, and that the legislated formula provided too much hiding room for NBN Co. We'll see what has happened when the review report is tabled in parliament in June. I'm assuming, knowing all along that the review was to happen, that NBN Co has been reasonably well behaved.
Broader issues
The review notwithstanding, the justification for special exemptions afforded to a range of organisations and the inelegant form of words used in s7 and schedule 2 to achieve this will remain matters for another day. Along with the justification for exclusion of an unknown number of government owned corporations similar to NBN Co in structure, such as the National Electronic Health Transition Authority, that carry out important public functions with large allocations of public money.

Similar issues, rarely explored in most instances, also exist at state level.(Tasmania may be an exception because of the broad definition of public authority in s 5.)

Queensland Attorney General showed interest in scope issues in opposition
In Queensland last year  the Supreme Court ruled Special Purpose Vehicles were not subject to the Right to information Act. Then Opposition Member for Kawana, Jarrod Bleijie introduced the Right to Information (Government-related Entities) Amendment Bill into Parliament in September, partly in response to the court decision. Mr Bleijie is now Attorney General, minister responsible for the RTI act.

His 2011 bill, which lapsed when parliament was dissolved prior to the election in March, would extend the RTI act to cover "any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control."

The RTI act currently (s 16) provides for extension of the act by regulation to such entities, but Labor made no move in this direction. Mr Bleijie in opposition saw merit in legislating in a job lot for such bodies to be subject to the RTI act but it remains to be seen whether the view from behind a ministerial desk takes on a different hue-as so often is the case. 

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