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Sunday, June 02, 2013

Bipartisan support for overkill, and a shared blindspot in quarantining parliament from FOI

Fairfax papers gave prominent coverage - "Secrecy law veils MP perks" the front page lead in the Sydney Morning Herald and elsewhere on Saturday - to the other result of the outbreak of bipartisanship in Canberra last week: legislating without dissent in  the House to exclude the departments that support the Parliament from the Freedom of Information Act

Not in the 11 minutes that it took to debate and pass the bill in the House last week, or elsewhere publicly since has there  been any attempt to explain why the legislation is needed now as an interim measure a year after the situation emerged. And with the report on the operation of the FOI act by Dr Hawke still under wraps but due to be tabled any day soon..

Nor why the exclusion is total and retrospective when in a joint submission to Dr Hawke, the three departments argued for less than what the bill gives. Simply for FOI coverage to be restricted to matters of an administrative nature , along with a few other specific amendments.

Something less than the proposed Government-Opposition complete FOI wipeout might be acceptable although you have to wonder how they've coped at Westminster with the full nelson for the last eight years (no, we know the answer, uncomfortably-see Robert Hazel), and in parliaments also subject to FOI in Scotland, Wales, Northern Ireland and elsewhere.

I'm wary of  the inclusion/exclusion "in relation to matter of an administrative nature" because these words used in a number of exemption provisions are being interpreted narrowly in the courts. Decisions regarding the Governor General's office and the FOI act for example in effect mean (paraphrasing) any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. The Federal Court  in that case said the bright new shiny objects of the act were not relevant, so there was no leaning in favour of a broad interpretation of words such as this to assist the exercise of rights of access, and scrutiny of decision making. (There is an application for leave to appeal to the High Court awaiting to be heard.) 

A turf war over what "matter of an administrative nature" means in the context of the parliamentary departments is to be avoided. Certainly where payments to, for, in support of or on behalf of  parliamentarians are concerned.

A better approach if there is to be a carve out would be to legislate with some degree of specificity what is or isn't subject to the act . And ensuring payments to members and senators, and expenditure incurred in providing support are part of the publication requirement. Something recommended generally as a transparency initiative by the Belcher committee way back in 2010:
  1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
  2. That all senators and members be required to provide a link on their official parliamentary websites (at to their individual expenditure reports on the Finance website.
  3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)
Last time I looked two only of the many Belcher committee recommendations, and not No 11, had been acted upon.
Back to Parliament and the FOI act.....

In an interview on ABC Radio AM on Saturday Keith Breene asked what could be potentially hidden as a result of the FOI move:

PETER TIMMINS: Well, these three departments have an allocation of about $170 million-odd a year, so I guess like any government department there are important scrutiny issues about how government agencies go about making decisions, spending public money, letting contracts. In this case, some of this money is spent on our parliamentarians.

A lot of that information about their entitlements is published by the Department of Finance, but there are other payments made by the Department of the Senate and the Department of the House of Representatives to our parliamentarians, and I guess that's a bit of a strange anomaly in the system, that that should be given special protection by not being subject to the FOI Act.

KEITH BREENE: Are there any reasons apparent to you why these three departments should be treated differently to other parts of the Parliament or the government?

PETER TIMMINS: No, not really, and there's some very strong reasons why they should be subject to scrutiny. I mean, we live in a democratic society; in a democratic society, transparency and accountability are important values.

Public scrutiny is essential for anti-corruption purposes. The Government has on the record an open government declaration of 2010, and importantly, on the day that the Prime Minister formed government - Julia Gillard formed government in 2010 - she said that day, and I quote: "let's draw back the curtains and let the sun shine in, let our Parliament be more open than it ever was before."

So all this seems to be a rather strange move at this stage.

KEITH BREENE: And what do you think it says about the attitude of Parliament to openness generally?

PETER TIMMINS: I think it sends a pretty strong message that they'd like to leave things the way they used to be, and in the modern context, I think the demand for transparency and accountability runs quite counter to that idea.
This is the source of that quote from Prime Minister Gillard (7 September 2010) which reads
Throughout this process of forming a new government we've been open with the Australian people. To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before. That's real reform, and that's the direct result of the election.
 The Prime Minister also said that day:
 Well this is an opportunity for the nation.. to listen to what the Australian electorate told us at this election. I've heard the message loud and clear. People do wanna (sic) see us more open, more accountable, more transparent. I am going to be held to higher standards of accountability than any Prime Minister in the modern age. I'm well aware of that, and I'm going to focus on being up to that challenge. And I'm also well aware that when we go to the polls next time in 2013, Australians are going to hold me to account and I wouldn't have it any other way.
Ah, those were the days:

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