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Monday, June 04, 2012

Parliament beyond FOI reach: Attorney Roxon, say it isn't so

Matthew Moore and Linton Besser in The Sydney Morning Herald (published also in other Fairfax papers) today report on what appears to be the first Freedom of Information release of documents by the Department of the House of Representatives, detailing payments to and on behalf of Speaker Peter Slipper including expenses of office for the period to 30 April. I was happy to contribute a quote.

This "first" arises as a result of news last month that Australian Information Commissioner Professor John McMillan had cut through years of denial and uncertainty to rule that departments of the House of Representatives, the Senate, and parliamentary services are subject to the FOI act. Followed last week by Attorney General Roxon indicating the government is "currently considering its options to correct this anomaly."

The SMH may have achieved a first and last at the same time if amending legislation to put the parliamentary departments beyond the scope of FOI is on the way.

Say it isn't so Attorney. 

FOI for parliamentary departments is no anomaly, a deviation from the norm. It is what we should expect from any government agency. More pointedly, as far as Parliament is concerned, Prime Minister Gillard put it well when she said in 2010 "let our parliament be more open than it ever was before."

I'm sure it hasn't escaped your attention that parliament and parliamentarians are struggling a bit with integrity issues these days. Arguments for less rather than more transparency should make interesting reading. Public reaction more so.

Regardless of the recent and perhaps unexpected realisation behind the scenes (in the context of making sure the Parliamentary Budget Office was exempt from the act, an Opposition pre-requisite to even consider playing ball), that the departments are subject to FOI, you know it makes good policy sense for government agencies to be subject to the highest standards of accountability and transparency.

For all the reasons you could roll out without even glancing at a departmental briefing note- the fundamental importance of transparency and accountability in a democratic society, how 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 the gap needed fixing in 1995; 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, albeit with some grumbling in the UK where it bit hard. 

As to rumblings 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, the courts, regarding matters of an administrative nature, and in addition to overseas jurisdictions Tasmania did it in 2009.

Quite apart from the case for a high standard of transparency for payments the parliamentary departments make that go directly or indirectly to the benefit of parliamentarians (and that's in addition to about $350 million that the Department of Finance and Deregulation pays as entitlements to parliamentarians and their staff, accepted as properly subject to FOI), 700-800 public servants beaver away in these departments with an allocation of in excess of $170 million, 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 month.

Surely the principle (I may have made this up but it sounds good to me), same function, same public money, same transparency standard to apply?

Say it isn't so, Attorney.


  1. No anomaly here... - an oversight maybe, but the general principle is (and has always been, as you say) 'public funds and public functions ought to get public scrutiny': the exemptions clauses sort the exceptions, and the anomalies, if and when a case can be made.


  2. Thanks HW-we await further elaboration from the AG.

  3. Anonymous11:37 am

    Hi Peter,

    I have recently completed a successful (three month & $651 later) FOI with the Department of Finance regarding detailed Parliamentary expenditure reports for a federal electorate office. My question is, as I'm new to this, do you know whether it is possible to go further and FOI the actual records within the federal electorate office?



  4. Fiona,
    An electorate office isn't an agency as far as I know, and isn't part of the parliament itself.Electorate office accommodation is provided by Finance. MPs staff are employed under the Members of Parliament Staff Act. I'm not sure if they are employees of Finance-I think I saw once they are employed by the member. It's an interesting question whether Finance is "in possession of a document" held in an electoral office.Somehow doubt it. Suggest you ask or just make a simple application first to test the water. You can use RighttoKnow and let everyone see what transpires.