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Wednesday, May 30, 2012

FOI transparency and accountability for parliamentary departments an "anomaly"?

Well, according to the Attorney General, it seems so.

Sean Parnell reports in The Australian today that the departments of the House of Representatives, the Senate, and parliamentary services are understood to have challenged the OAIC interpretation that they are subject to the Freedom of Information Act, have taken the issue up with Attorney General Roxon, and that she supports their view that the act was not intended to extend to these bodies:
"It has been long-accepted practice that the parliamentary departments are exempt from FOI," a spokesman for Ms Roxon said yesterday. "The government is currently considering its options to correct this anomaly."
This will be interesting, at a time when regard for politicians and parliament is at a low ebb, and "integrity" in public life in some respects at least seems missing in action. And when parliamentarians are only asked "voluntarily" to certify that use of entitlements is in accordance with the rules, and 52 still haven't done so for the period January-June last year.

The Greens Senator Rhiannon has fired off a media release this morning expressing concern about what may be coming:
 “Public money is what keeps the House of Representative and the Senate functioning and the public have a right to know how that money is spent. Parliament should not be beyond the reach of FOI...“Greater disclosure of the workings of parliament and the work of MPs is critical to a healthy democracy...“The Australian Greens have welcomed the news that the Australian Information Commissioner has found that parliament is subject to FOI laws, and that has been the case for the past decade...“While it is good news that the FOI laws apply to parliament, the information still needs to be made more accessible for the public. All parliamentary department websites should include up to date, easily searchable records of expenditure by MPs,” Senator Rhiannon said.

Couldn't agree more-that raises the unacted upon recommendations of the Belcher committee report as well.

But of course all it needs is for the major parties simply to vote together to amend the law to put the parliamentary departments beyond the reach of the FOI act. The opposition when in government between 1996 and 2007 did nothing to advance openness, but are yet to say anything on this one.

However while the OAIC opinion came as a surprise, arguing that the parliamentary departments should be exempt from FOI should require at least passing attention to the following:

1. The Australian Law Reform Commission recommendation in Report 77, December 1995, that the parliamentary departments be made subject to the FOI Act. The relevant section of the report reads:
1.8 The parliamentary departments are currently excluded from the coverage of the FOI Act.[23] In 1979 the Senate Standing Committee expressed the view that the 'parliamentary departments should be encouraged to act as if the legislation were applicable to them'.[24] DP 59 proposed that the parliamentary departments should be brought within the scope of the FOI Act on the basis that documents that warrant protection would be adequately protected by the exemption provisions, for example s 46 (parliamentary privilege).[25] A number of submissions, including that of the Clerk of the Senate, support the proposal.[26] The Department of the Senate has, in any case, always acted as though it were subject to the FOI Act, releasing documents unless they would have fallen within an exemption. In contrast the Department of Parliamentary Reporting Staff considers that it should remain outside the Act because it does not have a public policy role or provide services to the public. It claims that extending the FOI Act to the parliamentary departments could expose them to lengthy and costly legal challenges in respect of material they would claim to be exempt under s 46.[27] The Department of the Parliamentary Librarian also opposes extending the Act to the parliamentary departments for similar reasons.[28] The Review is not persuaded by these arguments. It remains convinced, particularly in light of the experience of the Department of the Senate, that there is no justification for the parliamentary departments to be excluded from the Act and that being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act. Accordingly, it recommends that the parliamentary departments be made subject to the FOI Act.

2. Why the law should apply to the executive and judicial branch (in respect of matters of an administrative nature) but not the agencies that support the work of the legislative branch.

3. Why the Federal Parliament should remain outside the act while one jurisdiction that engaged in a wholesale review of the kind yet to be undertaken in Canberra, Tasmania, extended its act to cover state parliament on matters of an administrative nature.

4. Why the parliament should be excluded while respected bodies that promote accountability and transparency internationally such as the Carter Center advocate as a standard that all three branches of government should be subject to FOI law. The Australian FOI act was marked down on this in an international survey last year that saw it ranked 39 of 89 laws examined. And why in contrast to the home of Westminster, and elsewhere  where parliaments are covered, our's should be beyond the scope of FOI.

5. Why expenditure by parliamentary departments of funds allocated or administered on behalf of other agencies, around $230 million in this year's budget, by my reckoning (see 1.20), should not be subject to the same accountability and transparency requirements as other government agencies. Apart from what the 800 plus employees of the three departments do with public money, the allocations appear (it's murky territory) to include funds for salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps while the Speaker Mr Slipper who is accountable for the Department of House of Representatives is under investigation regarding travel as an MP, travel and entertainment for office holders such as the speaker and deputy speaker when on business connected to that office.

Let's hope common sense and good public policy prevails.

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