Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon, MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012

10. 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 .

Overview of the Bill

11. The Bill amends the Freedom of Information Act 1982 and Privacy Act 1988 to provide a new FOI exemption for documents related to requests to the Parliamentary Budget Office (PBO).

12. The establishment of the PBO allows all parliamentary parties and Independent members to have their policies costed by the PBO. Senators and members will be able to request confidential information relating to the budget. Senators and members will also be able to request confidential policy costings from the PBO outside of the caretaker period of a general election. During general elections policy costings will be made available to the public.

13. While the PBO is an exempt agency under the FOI Act, documents related to PBO requests may be held by departments and other agencies. This information may not be protected from release under the FOI Act.

14. The Bill amends the FOI Act to provide an exemption for information held by departments and agencies that relates to a confidential request to the PBO. This will ensure that the integrity of the PBO processes in these matters which are critical to the successful operation of the PBO will not be undermined.

15. The Bill amends section 25 of the FOI Act to provide that an agency is not required to give information as to the existence or non-existence of a document where it is exempt under the new exemption for documents that relate to a confidential request to the PBO.

16. The Bill also makes a consequential amendment to the Privacy Act.

Human rights implications

17. The Bill engages the following right:

•

The right to freedom of expression - article 19 of the International Covenant on Civil and Political Rights (ICCPR) .

Freedom of Expression

18. Article 19(2) of the ICCPR 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 other media of his choice.

19. The Bill limits the right of individuals to receive information. However, paragraph 3 of Article 19 provides that the rights protected by paragraph 2 may be limited as follows:

20. 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:

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.

21. The Bill protects public order by enhancing public administration. Specifically, the objective of the Bill is to protect the integrity of the PBO. The role of the PBO is to inform the Parliament by providing independent and non-partisan analysis of the budget cycle, fiscal policy and the financial implications of proposals. This analysis is an important element of policy development and public administration. Senator and members may be reluctant to request such analysis from the PBO in the absence of certainty that information provided in response to confidential requests will not be released under the FOI Act. The Bill provides this assurance.

22. The Bill is necessary because its objectives cannot be achieved by relying on existing exemptions in the FOI Act. Although existing exemptions may apply to some potential FOI requests relating to PBO related documents held by agencies, it cannot be said with certainty that they would apply to all such requests. Moreover, agencies do not currently have the option of confirming or denying the existence of a confidential PBO request.

23. The Bill's limitation of the right of individuals to receive information is reasonable and proportionate to its objective of protecting the integrity of the PBO. This is because the Bill will protect the integrity of the PBO while having a minimal impact on the amount of government information withheld from the public. It is important to note that the work of the PBO is undertaken for the benefit of the Parliament and does not inform government decision making. The Bill will not disproportionately affect any particular group.

Conclusion

24. The Bill is compatible with human rights because its limitation of the rights protected by Article 19 of the ICCPR is reasonable, necessary and proportionate.

List of abbreviations used