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Estimates: Finance and Public Administration Legislation Committee (FOI)

Estimates & Committees
Lee Rhiannon 19 Oct 2015

Lee questions the Public Service Commissioner, John Lloyd, about his remarks in March, when he labelled Freedom of Information (FOI) laws "very pernicious" and "beyond perhaps what they were intended to do". She notes that although he made these remarks in his official role, he did not pursue his concerns on FOI through official avenues. In light of this, Lee questions the appropriateness of someone in his position as the Public Service Commissioner in making these remarks, noting that it could undermine the importance of the broad areas FOI now covers. 

Senator RHIANNON: I just want to return to that issue that I started to ask at the wrong time. Could you expand on what you meant when you made the comment about the FOI laws being 'pernicious'-'very pernicious', I think it was.

Mr Lloyd: It was in a speech I gave to a Public Service function. My view is that the FOI laws have extended beyond perhaps what I understood to be the original intention, which was particularly to allow our citizens to have access to information about their affairs that governments were holding. It seems to me that it has come to a stage where people are very reluctant perhaps at times to give advice in writing. I found this throughout my experience in both state and federal governments-both coalition and ALP-over many years. That is often the statement that is made: I would rather not give that in writing. I do not think that was the intention of FOI.

Senator RHIANNON: Do you feel that your comments were accurately reported?

Mr Lloyd: Yes.

Senator RHIANNON: If I understand what you are saying, you are committed to the FOI process, but you consider that it is not working. Is that a fair summary of what you are saying?

Mr Lloyd: I am committed to the FOI process, and every officer has an obligation to comply with the law. But in the role of commissioner I proffered my view as to how it stands at the moment.

Senator RHIANNON: Could you expand on how the law has gone beyond what was intended?

Mr Lloyd: I think I just outlined that then. When FOI laws were introduced they were particularly designed, as I understood it, to ensure that citizens could have access to information the government held about them, whether it was in what is now the Department of Human Services, Centrelink or whatever. It seems to me that now it is used for various purposes, often involved in the controversy of the day. As I mentioned in the previous answer, as a senior official of 20 or more years, I have been struck by how often it seems to be that people are very cautious about giving advice in writing because of FOI.

Senator RHIANNON: Have you raised this matter with the minister for the public service?

Mr Lloyd: No, I have not. I am the Australian Public Service Commissioner. I was asked a question and I was giving a view that I have.

Senator RHIANNON: I am surprised by that response, because it seems such a significant response. You have made a very important observation and it is being reported publicly. Did you choose not to raise it with the minister or did you see that it was not necessary? Could you expand on that, please?

Mr Lloyd: The minister was obviously aware of the comments which I made. The administrative responsibility for FOI rests with the Attorney-General's Department, I think, and I did not see a need to take it further with the minister.

Senator RHIANNON: So what action do you think is needed, going back to the challenge that you have identified with regard to how FOI is operating in Australia?

Mr Lloyd: I injected a view into the public discussion of this, that I saw it as moving beyond its original intent. I am not a legal expert in the FOI area, but I think I have a right as Public Service Commissioner to state a view.

Senator LUDWIG: Did you get yourself involved in the legislation as it is now written? When did you last get an update on the FOI legislation and what it currently provides for?

Mr Lloyd: We get-

Senator LUDWIG: No, you.

Mr Lloyd: I am just trying to think of what we get. Me personally?

Senator LUDWIG: Yes.

Mr Lloyd: I have not read it for probably a year or more. We get inquiries about FOI. I conducted an investigation into elements of the Home Insulation Program and in doing that I looked at FOI material. I did not go through and read every section of the act, but I certainly made myself familiar with FOI requirements.

Senator LUDWIG: What I am trying to get a sense of is this. You indicated that when the FOI legislation was first introduced, more than 20 years ago now, you had a particular view about what it might have covered then, which was access to public information on individuals. You still hold that view, as I understand it from your evidence. But the FOI legislation that is currently promulgated is far broader than that, so you are not reflecting a contemporary view of FOI. I just wanted to clarify that you are reflecting your view of some 20-odd years ago about what you think FOI should look like.

Mr Lloyd: No, that is not what I am saying.

Senator LUDWIG: Perhaps you could correct me, then.

Mr Lloyd: What I am saying is that, as a senior, experienced public official, my view is that the way FOI works at the moment is less than ideal. I think it has gone beyond its original intent, certainly, notwithstanding what the current legislation is.

Senator LUDWIG: That is what I thought I just put to you. So you think-

Mr Lloyd: No. I am not reflecting a view of 20 years ago.

Senator LUDWIG: You think that the current FOI legislation has gone well beyond what it should. I do not know where you get the ability to do that, but the legislation is the legislation, as I understand it, and it reflects what the current view of FOI is. You might hold a personal view that it is in excess of what it should be, but that is what it is. It concerns me that you are reflecting a view that it has gone beyond where you think it ought to have gone, which might also then create a bias by you in how you implement it.

Mr Lloyd: No, it does not create a bias in how I implement it, because I am required to adhere to the law. But also, as Public Service Commissioner, I have a number of roles to be informed about the management of the Public Service and, although it is not my direct responsibility, it does, in my view, bear upon it, so I put forward a view.

Senator RHIANNON: But, Commissioner, considering your leading role-you are the commissioner- people look to you, and what you say will clearly influence the people who work in the Public Service. When you speak in that way, and particularly when you do not follow it through on recommendations or just engaging with the minister, can't you see that it could be interpreted that there is a bias that there is a failure in the FOI, and therefore people under you may become more reticent in how they engage with this process?

Mr Lloyd: I was not saying there is a failure. What I was saying was that I had a view about it: that it had moved away from its original intention. I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service.

Senator RHIANNON: So if there is that responsibility, which is-

Senator LUDWIG: You do not have a role to reflect that the legislation currently does not reflect your view.

Senator RHIANNON: Yes. So you have identified that responsibility. What I do not understand is why the responsibility just has stopped with that comment and you did not follow through on that.

Mr Lloyd: When I made the comment, it was reported. As I say, the responsibility rests with another portfolio, and they would have been aware of my comment. I did not see the need to actually take it further.

Senator RHIANNON: You made that speech. When I look back on how it was reported, I am not sure if you intended to make those comments or if it just came about through questions. I think at the last estimates, when Senator Ludwig was questioning you about this, you made comments about how you had notes and you spoke to the notes. That left me with the impression that maybe you had intended to put these comments about FOI, which I think puts it on another level. Or was it just, as it was originally reported, a response to a question?

Mr Lloyd: That is a very long question you asked me. Senator Ludwig, I think, at that time was talking about the nature of speeches and the lack of them on my website. In response to what I understand to be your question, the comments were made, as I recollect, in the answer to a question from the floor, but they reflect my views. I was asked a question and I considered it and answered conveying my views.

Senator RHIANNON: So you did not have that as a prepared part of your speech. It was a response.

Mr Lloyd: No, it was not part of the speech.

Senator RHIANNON: I was also interested in whether your views have changed on this matter, because you were with the Institute of Public Affairs and then you have come into this position. Now that you have seen FOI on the other side of the fence, so to speak, I was wondering if your views have changed from your current work.

Mr Lloyd: No, I think my views are formed by my broad experience as a senior executive over about 30 years or so, in state and federal coalition and ALP governments, and the IPA. It is just part of my views.

Senator RHIANNON: Thank you.

Senator RHIANNON: Commissioner, in answer to an earlier question you said that you had not spoken to the minister for the public service. Have you officially communicated any of your views to any government body or any minister?

Mr Lloyd: No.

Senator RHIANNON: Could you expand on how our FOI laws make public servants a bit overcautious and make some of the advice more circumspect than it should be. I think it is really important that you expand on it because there is agreement about how important FOI is, and you are in such a significant position to have made these comments and they are just left hanging. I think it needs to be expanded on, so if you could address that it would be useful.

Mr Lloyd: I am reflecting my experience over 20 years or more in senior executive roles, and CEO roles, where people frequently say a request comes through and they do not put that in writing—that is often said. The reason for that, in my belief, is that there is a hesitation about FOI. I am not too sure I can add much. My sense is that not every piece of advice has to be conveyed in writing. Obviously, there will be some done orally—that is just the nature of interaction between ministers and senior people in departments. My position is that it is preferable that most advice, particularly substantial advice, is done in writing. Most advice, particularly advice about substantial and important matters, is done in writing.

Senator RHIANNON: You are the commissioner for the public service, so maybe sticking with public servants, because one of your comments was that you could see that public servants may be a bit overcautious, if our current laws have, as you have said, gone beyond perhaps what they intended to do what reforms would be in the interest of public servants? Can you pin that down more please?

Mr Lloyd: No, I am not going to do that. It is not my responsibility, so no. I made a comment. I made an observation about my experience. Also, I recollect that in the home insulation program royal commission there was a noting that in aspects of that there was a lack of written advice. So I just think it is a feature I have observed of Public Service engagement with government in Australia.

Senator RHIANNON: In terms of what you observed, what is very significant and what, I assume, would be part of your observations is the winding back of the Office of the Australian Information Commissioner. How does that shift sit with your desire for the government to address the extent of some of those FOI laws?

Mr Lloyd: I have no comment on that. It is a development. I am not familiar with the detail of that or the reason for it, so I am not prepared to comment on that.

Senator RHIANNON: I was not asking you to comment on why or the familiarity; it was also in the context of your comments, which have become significant, about how FOI is playing. Surely the role of that office would be part of your considerations or your thoughts when you were making those comments.

Mr Lloyd: No, I am not prepared to comment on that. It is straying, I think, into areas of policy. I made an observation about FOI, and I am not prepared to comment on the why, wherefore or whatever of the Office of the Information Commissioner.

CHAIR: I think that concludes the responsibilities for the Australian Public Service Commission. We will now go to the Office for Women. I thank you, Mr Lloyd and officers, for your attendance today. Department of the Prime Minister and Cabinet


CHAIR: I welcome Senator Cash, in her capacity as Minister for Women, and officers from the Office for Women within the Department of the Prime Minister and Cabinet. Minister, do you have an opening statement?

Senator Cash: I do not, thank you.

CHAIR: Does any of the officers wish to make an opening statement? I take that as a no. Minister, I wonder if for my benefit you could comment on this: members of this committee participated in a rather longstanding inquiry into domestic violence. Subsequent to that, the government has announced $100 million to combat domestic violence. What impact or what relevance does the announcement of the $100 million have to the findings of the committee report? I just want a brief answer.

Senator Cash: Thank you, Chair, and thank you to all the members on the committee who participated in that inquiry. The government is still considering the final report and the recommendations made by the final report. In relation to the announcement of the $100 million Women's Safety Package, that was very much looking at the advice that the advisory panel chaired by Ken Lay and deputy chair Rosie Batty had provided to COAG in terms of what was an immediate response that government should be taking to combat the issue of domestic violence. So that is that $100 million. I am sure there will be questions for the officials surrounding the package itself, but certainly, in terms of the report from the committee, the government is still considering the committee's recommendations. But again, to all of those on the committee, thank you very much for all the work and the recommendations you have made.

CHAIR: So we should be optimistic that there will be a further response from the government?

Senator Cash: Certainly the government's intention would clearly be to respond in due course to the report.

CHAIR: We hope that means yes—a positive, optimistic yes, I am sure. Thanks, Minister.

Senator MOORE: Congratulations on the new appointment, Minister, into the Employment portfolio—

Senator Cash: Thank you, Senator Moore.

Senator MOORE: and the link that will obviously have—

Senator Cash: A great synergy.

Senator JACINTA COLLINS: I might wait until we do that before I go to further questions on this issue.

Senator LEYONHJELM: I have some questions for the Office of Best Practice Regulation. Do we need anybody else to join the table?

Ms Cross: We have separate officials that could answer, if you are happy to move to the Office of Best Practice Regulation.

CHAIR: I would rather avoid leaping between areas and having officials up and down regularly. We are dealing in general—

Ms Cross: We are doing cross-portfolio.

Senator LEYONHJELM: Perhaps you could tell me when it is a good time to make my presence felt.

CHAIR: I will take it upon my own accord to do that.

Senator RHIANNON: What advice has the department provided to the government regarding Public Service Commissioner Mr Lloyd's comment on freedom of information that was made earlier this year?

Ms Kelly: I can answer that. No advice has been provided.

Senator RHIANNON: Has the commissioner made any comment to your department about this?

Ms Kelly: I heard the exchange that you had with the commissioner earlier this afternoon, and I was aware from public commentary that the comment had been made, but the comment had not previously been formally conveyed to the department by the Public Service Commissioner.

Senator RHIANNON: I would like to understand how PM&C responds when the PM's appointments make comments that are controversial or appear to contradict their function. How does the department deal with this? Does it send a transcript to the Prime Minister, does it provide analysis or recommendations or does it just leave it alone? I imagine it is case-by-case, but could you explain how that works when we have this situation wherein somebody who has been appointed to such a significant position appears to contradict something that is quite fundamental to how the government works?

Ms Kelly: If I could confine myself to the circumstances of Mr Lloyd's remark: Mr Lloyd is an independent statutory officer. He is charged with oversighting the Australian Public Service and, in that role, public administration is very much at the heart of his interests. He has made a comment about a public policy issue. A number of other people make comments from time to time about that issue. As an independent statutory officer Mr Lloyd is charged with responsibility for the APS and public administration, and he is entitled to his view— which he put in response to a question, as I understand from his evidence earlier this afternoon.

Senator RHIANNON: Considering public policy is something dynamic, it is developing all the time—and clearly your department has a role in driving that—when such a significant statement is made do you consider it? Do you consider what needs to change or if it needs to change? I feel that there needs to be more explanation. Surely it does not just hang there.

Ms Kelly: FOI is actually the responsibility of the Attorney-General's portfolio, so perhaps it might be more appropriate to canvass matters of FOI policy under the Attorney-General's estimates because it is not the policy responsibility of the Department of the Prime Minister and Cabinet.

Senator RHIANNON: So no response at all?

Ms Kelly: As I said, Mr Lloyd is a senior independent statutory officer charged with oversighting the public service, and so public administration is at the heart of his interests. He has expressed a view about a public policy issue about which many people express views and which is a matter of some debate.

Senator RHIANNON: Isn't FOI right at the heart of how our public service is operating and it helps give confidence to the public and it is a day-to-day aspect of the work of our public servants?

CHAIR: Senator Rhiannon, Ms Kelly has indicated that FOI lies within the Attorney-General's portfolio, and probably if you are going to ask general questions about FOI they would be best directed to the Attorney-General's portfolio.

Senator RHIANNON: I will have that opportunity—

CHAIR: You will.

Senator RHIANNON: I was just asking one of my final questions.

CHAIR: Yes, but you do not get to double dip. You get an opportunity for that one later on, and so you have got to ask relevant questions here.

Senator RHIANNON: It was very relevant.

CHAIR: Ms Kelly has made it clear that it is not the responsibility of Prime Minister and Cabinet.

Senator RHIANNON: Thank you, Chair. It seems a bit biased, but still—

CHAIR: I do not think that is very fair. It is not my fault that you are asking the questions in an inappropriate portfolio area—it is not. I can only uphold the standing orders and the rules.

Senator RHIANNON: Also, we know that FOI has been hit hard so it was a fair question. At any rate, I will come back to it at another time.

CHAIR: What we have established is that it is not appropriate to ask these officers about FOI, or statements attributed to the Public Service Commissioner—that is what we have established.

Senator RHIANNON: We have established it but it is also not a good look. That in itself is informative.

CHAIR: If you want to have an argument about this I am happy to suspend the committee and we can have an argument about it. You should direct your questions on FOI matters to the Attorney-General's Department.

Senator RHIANNON: I have said I will do that.


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