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On 26 June, in the last sitting week of the current parliament, Hon. Kevin Rudd, MP, challenged the Prime Minister Hon. Julia Gillard, MP, and won 57 votes to 45. The leadership ballot was set in the midst of deteriorating


Parliamentary Service Amendment (Freedom of Information) Act 2013

Hon. Kevin Rudd, MP

opinion polls and the possibility of a massive electoral defeat for the government at the forthcoming election. In March a similar attempt to replace Ms Gillard was made but at that time Mr Rudd refused to stand.

Ms Gillard called a caucus ballot for the leadership amid speculation that Rudd supporters were circulating a petition to call for a special caucus meeting to again decide the leadership. In her statement she vowed that if she lost she would retire and she expected the same of Mr Rudd. Mr Rudd explained that he

had chosen to run, which went against a previous commitment not to, because of the “tens of thousands” of Australians that implored him to do so. Ms Gillard’s chances of retaining the

Historically, the parliamentary departments were excluded from the application of the Freedom of Information Act 1982 (FOI Act). However, the Leader of the House, Hon. Anthony Albanese, MP, noted that when a separate parliamentary service was created under the Parliamentary Service Act 1999, it became “apparent that the FOI-exempt status of the three parliamentary departments was inadvertently removed”. Mr Albanese stated that “the Parliamentary Service Amendment (Freedom of Information) Bill 2013 amends the Parliamentary Service Act to restore the previously understood position of three of the four parliamentary departments in relation to the operation of the Freedom of Information Act 1982 (FOI Act). The Bill does not affect the Parliamentary Budget Office which the Parliament has already designated as an exempt agency under the FOI Act”.

The parliamentary departments have over a long period complied with the spirit of the FOI Act by providing access to administrative information. Mr Albanese notes that this was done on a voluntary basis and without the legal protections that would have been available under a scheme tailored to the needs of the Parliament. Mr Albanese concluded that “as a result of the inadvertent removal of their exemption, it is now apparent that the parliamentary departments are now subject to an act which was not designed to take into account the constitutional position of the Parliament”. Mr Albanese noted that “this step has been prompted by concerns expressed by the Joint Committee on the Parliamentary Library about the library’s ability to continue to provide individual members and senators with research and advice on a confidential basis in an environment where FOI access decisions are ultimately made by agents of

the executive government and by the courts”. There are alternative approaches to the FOI Act that may provide a solution. Mr Albanese stated that “in relation to the courts, for example, the separation of powers is respected by the application of the FOI Act to documents of an administrative character only”.

The Parliamentary Service Amendment (Freedom of Information) Act is 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”. The Act restores the status quo pending consideration of the recommendations of a review of the FOI Act by retired senior public servant Dr Allan Hawke AC. Senator Scott Ryan indicated that the Coalition supported the legislation. Senator Ryan commented that there were longstanding justifications and reasons for restoring the previously understood position of FOI to the parliamentary departments. He noted that it was particularly important relating to the abilities of “Members and Senators to go about their respective duties and the rights and privileges of the houses to determine their own affairs”. Senator Ryan pointed out that the parliamentary departments cooperate with the spirit of the Act by providing access to administrative information when requested. In addition, further accountability is provided through staff of the Department of the Senate and the Department of Parliamentary Services appearing before Senate estimates committees. The Senate Information Bulletin noted that “amendments moved by the Australian Green to make the parliamentary departments subject to the FOI Act in respect of defined administrative documents, while preserving parliamentary privilege, were not supported on the grounds that they were premature while the Hawke review was ongoing”.

The Parliamentarian | 2013: Issue Three | 225

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