House passes legislation to remove parliamentary departments from FOI scrutiny

On the day the deal between the major parties on election funding started to unravel, another instance of hands across the aisle in common cause didn't encounter difficulty. The Parliamentary Service Amendment (Freedom of Information) Bill 2013  sailed through the House of Representatives yesterday in 11 minutes flat. Not a query or concern from any quarter. If they stick together the two major parties have the numbers to push this through the Senate.

The bill amends the Parliamentary Service Act 1999 to remove the parliamentary departments and office holders from the Freedom of Information Act 1982. Completely and retrospectively.

The Australian Information Commissioner in 2012 had issued guidance that the departments were agencies subject to FOI, and had been since 1999, something overlooked by all and sundry until the Commissioner dug deep.

So much for the accountability and transparency framework for the three departments that combined were allocated around $175 million in the Budget, and separately from entitlements paid to and on behalf of members and senators by the Department of Finance and Deregulation, spend a fair chunk of that on services for parliamentarians.

Leader of the House Albanese, and Bronwyn Bishop for the Opposition were the only speakers in the House.

The legislation and the speed and urgency attached to it despite a crammed legislative agenda was unexpected and came as a surprise to this outsider at least. In June last year then Attorney General Roxon mused about fixing "the anomaly" just as Fairfax Media was digging documents out through FOI from the Department of House of Representatives on then speaker Peter Slipper's expenses. That moment seemed to pass.

The issue then cropped up again late last year in the Hawke Review which received submissions on the subject. The terms of reference included examination of the scope of the act sufficient to cover this issue.  The report has been in the Attorney General's hands since the end of April and must be tabled soon.

Why the rush days before the Hawke report appears and a year after Professor McMillan published his finding?

Minister Albanese ran the line that action was warranted as the parliamentary departments "are now subject to an act which was not designed to take into account the constitutional position of the parliament." (Really? Tell it to Westminster. And there are plenty of other examples.)

The minister explained it was "an interim measure to preserve the right of the parliament to make a deliberate decision about the FOI status of the Department of the Senate, the Department of the House of Representatives and the Department of Parliamentary Services." An option for the future, the minister said, might be for FOI to apply to information held by the parliamentary departments on administrative matters but I'll bet any action to rewind the blanket exclusions is now way off in the distance.

The only specific concern raised was the need to place beyond doubt protection of confidential advice from the Parliamentary Library to members and senators, information reasonably well protected in any event by exemptions.

As to whether FOI scrutiny of these departments is warranted, in another context in February (and there appear to have been further significant positive chages since) Senator Faulkner said the Department of Parliamentary Services had been "the worst administered department I had seen in all my time in parliament, and I have had plenty of experience on both sides of the table and dealt with plenty of what I think might be inadequate administrative practices. Nothing comes close to what we were facing in the Department of Parliamentary Services. Yes, it has improved, and I think everyone on this side of the table is grateful for that, but there is still a very critical issue here about oversight and how we got to the situation that we did." 

And the arguments about why the parliamentary departments should be subject to FOI?

For starters, the fundamental importance of transparency and accountability in a democratic society, public scrutiny is an essential anti-corruption measure, the government's Open Government Declaration of 2010, and the Prime Minister's words that fateful September day:"let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before."

Those who research and think about these things like the Australian Law Reform Commission recommended extending FOI to the parliamentary departments in1995; those who advocate best practice internationally think it's part of the package these days, and parliaments as varied as the UK and Mexico accept it.

As to the argument that there is something unique about extending FOI beyond the executive branch to government agencies that support the legislative arm, FOI since commencement has applied to the third arm of government, the courts, regarding matters of an administrative nature, and in addition to overseas jurisdictions, Tasmania enacted this in 2009.

Quite apart from the case for a high standard of transparency for payments by the parliamentary departments that go directly or indirectly to the benefit of parliamentarians, 700-800 public servants beaver away in these departments, carrying out the routine and not so routine public functions, the same or similar to counterparts in executive government agencies. The latter have been subject to FOI transparency obligations for the last 30 years. The former, knowingly for about a year, but that looks as if it is now coming to an end.

Surely the principle is same function, same public money, same transparency standard to apply?

Ah you've got to love them. 

(Update: Daniel Hurst, Fairfax Media 31 May.) 

(More in this later post.)