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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PARLIAMENTARY SERVICE AMENDMENT
(FREEDOM OF INFORMATION) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Leader of the House, the Hon Anthony Albanese MP)
PARLIAMENTARY SERVICE AMENDMENT (FREEDOM OF INFORMATION) BILL
2013
OUTLINE
The Parliamentary Service Amendment (Freedom of Information) Bill 2013 (the Bill)
amends the Parliamentary Service Act 1999 (the Act) to restore the exclusion from the
Freedom of Information Act 1982 for parliamentary departments and office holders under the
Act.
FINANCIAL IMPACT STATEMENT
The Bill has no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Parliamentary Service Amendment (Freedom of Information) Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Objective of the Bill
The Parliamentary Service Amendment (Freedom of Information) Bill 2013 (the Bill)
amends the Parliamentary Service Act 1999 (the Act) to restore the exclusion from the
Freedom of Information Act 1982 (the FOI Act) for parliamentary departments and office
holders under the Act.
The Bill inserts a new section 68A into the Act to provide that a Department of the
Parliament established under the Act, or a person who holds or performs the duty of an office
established under the Act, is not a 'prescribed authority' for the purposes of the FOI Act. This
means that the FOI Act would not apply to parliamentary departments, or a person who holds
or performs the duty of an office established under the Act.
The Bill corrects a recently discovered but unintended consequence of the enactment of the
Parliamentary Service Act 1999 which inadvertently applied the FOI Act to the Department
of the Senate, Department of the House of Representatives and Department of Parliamentary
Services. The Parliamentary Budget Office was specifically exempted on its creation from
the operation of the FOI Act and is not affected by these measures. This Bill will preserve
the Parliament's right to legislate in future to apply the FOI Act to appropriate aspects of the
Parliament's operations, should it choose to do so.
Human rights implications
Freedom of expression
The Bill engages article 19 of the International Covenant on Civil and Political Rights
(ICCPR), of which 19(2) provides that:
"Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any media
of his choice."
However, article 19(3) further provides that:
"The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
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(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of
public health or morals."
The Bill protects public order by facilitating public administration, as it protects the integrity
of the parliamentary departments. The role of these departments, as required by the Act, is to
provide "professional advice and support for the Parliament independently of the Executive
Government of the Commonwealth". It does this, in part, by providing "non-partisan and
impartial advice and services to each House of the Parliament, to committees of each House,
to joint committees of both Houses and to Senators and Members of the House of
Representatives" (see s10 of the Act). This work is undertaken for the support and benefit of
the Parliament, is independent of the Executive, and is separate from, and does not inform,
government decision making.
By its very nature, much of this advice is provided on a confidential basis to senators and
members to inform their parliamentary work and deliberations, and to assist them in carrying
out their constitutional duties as members of Parliament (examples of such advice could
include advice from a Clerk to a senator or member on a constitutional matter, or advice from
the Parliamentary Library to a senator or member about a bill before Parliament). It follows
then, that the provision of such (confidential) advice to senators and members is at the heart
of the work of the parliamentary departments, and is an important part of parliamentary
policy development and public administration.
The Bill is necessary because its purpose cannot be achieved by relying on existing
legislation or by relying on other existing exemptions within the FOI Act itself.
Although some exemptions within the FOI Act may apply to documents held by the
parliamentary departments, there is no certainty that such exemptions would apply to all FOI
requests. In the absence of an exemption from the FOI Act to ensure confidentiality, senators
and members may be reluctant to request such advice, leading to a deleterious effect on the
work of the Parliament. Additionally, arguably such advice should not be subject to the FOI
Act because FOI disclosure could lead to such advice becoming part of the political process,
thereby potentially jeopardising the ability of parliamentary officers to carry out their
legislative responsibility of providing "non-partisan and impartial" advice and services to
members of parliament.
Although this Bill does limit the right of individuals in some way to receive information, it
should be noted that article 19 of the ICCPR does not provide a positive right for individuals
to access information held by government. Further, although some international human
rights jurisprudence has pointed to the possible existence of a right to such information that
may itself be derived from the right to freedom of expression, the Committee's own
comments in this context are helpful: "to the extent that such a right could be implied, the
right to freedom of expression is not an absolute right and it is accepted that the right may be
legitimately subject to reasonable restrictions".1
Using the Committee's direction, the limitation on the rights of the individual set out in this
Bill is reasonable and proportionate to its objective of protecting the integrity of the
parliamentary service. The work of the parliamentary departments is undertaken for the
1
Parliamentary Joint Committee on Human Rights, Sixth Report of 2012 (31 October 2012) p.4.
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benefit of Parliament, and does not inform government decision making processes. Therefore
the amount of government information that would be withheld from the public as a result of
this Bill is minimal. Additionally, the Bill does not disproportionately affect any particular
group.
Accordingly, the Bill's limitation of this right is reasonable and proportionate to its purpose of
protecting the integrity of parliamentary processes, and the necessary confidentiality of
advice provided to senators and members.
Retrospectivity
Item 2 of the Bill has retrospective application. This item provides that the FOI Act is taken
to have the effect it would have, on parliamentary departments, and those holding, or
performing the duties of, an office under the Act, if the department or person had not been
taken to have been a prescribed authority for the purposes for the FOI Act.
Article 15 of the ICCPR goes to retrospective application of the law, and provides that a
person shall not be held guilty of a criminal offence, if at the relevant time, the person's
actions did not constitute a criminal offence. However, the provision in the Bill is not, and
does not relate to, a criminal offence, and therefore does not engage Article 15 of the ICCPR.
Regardless, however, the retrospectivity is justified on the basis that it restores what was
widely thought to be the position and it preserves the rights of the Parliament to make an
informed decision at a future date about whether the FOI Act might apply to parliamentary
departments. Given the potential impact on parliamentary privilege, it is preferable for such a
significant policy decision to be determined deliberately, and with appropriate qualifications,
rather than by inadvertence.
Conclusion
This Bill is compatible with human rights because its limitation of the rights protected by
Article 19 of the ICCPR is reasonable, necessary and proportionate. Therefore, to the extent
that the Bill engages with human rights, it does so in a reasonable, necessary and
proportionate way.
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NOTES ON CLAUSES
Clause 1: Short title
1. This clause is a formal clause which provides the citation of the Bill.
Clause 2: Commencement
2. This clause provides that the Bill will commence on the day the Act receives the
Royal Assent.
Clause 3: Schedules
3. This clause provides that each Act specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item in a
Schedule to the Bill has effect according to its terms.
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SCHEDULE 1--Amendments
Parliamentary Service Act 1999
Item 1: Before section 69
4. This item inserts a new section 68A which provides that a parliamentary department,
or a person who holds or performs the duties of an office established under the Act, is not a
"prescribed authority" for the purposes of the Freedom of Information Act 1982
(the FOI Act).
Section 68A: Departments and office holders not prescribed authorities for Freedom of
Information Act purposes
5. The effect of this amendment is to exclude the parliamentary departments, and those
holding, or performing the duties of an office under the Act, from the application of the FOI
Act.
6. The original FOI legislation did not apply to the Parliament or to the parliamentary
departments. There were clear policy reasons for the parliamentary departments to be
considered as a separate branch of government and not to be subject to a regime designed to
facilitate access to documents held by the executive government.
7. In 1999, the parliamentary departments were established as a separate service under
the Parliamentary Service Act 1999 with no changes in policy regarding the application of
other legislation. Success parliaments and governments continued to consider the
parliamentary departments as being excluded from the application of the FOI Act. However,
it has become apparent that the passage of the Parliamentary Service Act 1999 may have
inadvertently and unintentionally exposed the parliamentary departments to coverage by the
FOI Act (other than the recently established Parliamentary Budget Office which is
specifically exempted from the FOI Act).
8. The purpose of the amendment is to restore the status quo by providing that a
parliamentary department, or a person who holds or performs the duties of an office
established under the Act, is not a "prescribed authority" for the purposes of the FOI Act. It
is proposed that this amendment have effect from the date that the Parliamentary Service
Amendment Act 2013 receives the Royal Assent.
Item 2: Transitional
9. This item confirms that the FOI Act is taken to have the effect it would have
otherwise had, had each parliamentary department, or person who held, or performed the
duties of, an office established under the Act, not been taken to have been a "prescribed
authority" for the purposes of the FOI Act. The effect of this amendment is that the FOI Act
will be taken to have never applied to the parliamentary departments, or to a person who held,
or performed the duties of an office, established under the Act. The amendment therefore has
retrospective application.
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10. This retrospectivity is justified on the basis that it restores what was widely thought to
be the position (that is, that the parliamentary departments are not subject to the FOI Act) and
it preserves the rights of the Parliament to make an informed decision at a future date about
the basis (if any) on which the FOI Act might apply.
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