Senate Estimates: Finance and Public Administration Legislation Committee

Finance and Public Administration Legislation  Committee

Estimates hearings 15 October 2012

• Senator RHIANNON
• The President (of the Senate)
• Mr Hallett
• Senator RYAN
• Dr Laing
• Senator FAULKNER
• Ms Mills
• Ms Tsirbas
• Senator Chris Evans
• Mr McKinnon

 Full transcript available here

Senator RHIANNON: Mr President, I wanted to ask about the status of media filming and photography of parliamentary proceedings. I noted, in a brief you put out last year, you said that there was a review of media arrangements being undertaken by the Joint Committee on the Broadcasting of Parliamentary Proceedings. I think it mentioned there—or at some point I have read about—a roundtable that was to be held at the start of this year. So I was interested: has that roundtable happened, when will the report come out and will it be made public?

The President: Yes, the roundtable has taken place. I cannot recall the details of that. I have not personally been involved in the actual proceedings. I can get details of what happened and I can get those to you.

Senator RHIANNON: Is there somebody here who oversaw that, who could speak to my questions, please?

The President: No. If I can assist you, that has been run through the House of Representatives secretariat. They have looked after the detailed running of that affair. So I will get you the detail and I will get back to you.

Senator RHIANNON: I wanted to ask about the restrictions on the coverage, about the inconsistency between the Senate rules and the House of Representatives rules with regard to photography—how that has arisen

 

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The President: The actual inquiry itself?

Senator RHIANNON: No, no. I have a specific question. In the Senate, you would obviously be aware of what the rules are with regard to photography; in the House of Representatives, it is possible to take wider shots—

The President: I will ask the Usher of the Black Rod.

Mr Hallett: There are general rules for filming and photography in the building that the Presiding Officers have agreed on. Sitting alongside those general rules, there is a resolution of each house. So there is a resolution of the Senate and there is a resolution of the House of Representatives. And, as each house is its own master, there are subtle differences in what the media can do and the broadcasting principles for each chamber. We could get you copies of those resolutions as they currently stand if that would assist you.

Senator RHIANNON: Yes, I would appreciate that. I understand, as you have said, that each chamber is master of its own decisions. With regard to the inconsistencies that do exist, with regard to TV shots and still photography, has consideration being given to how that should be resolved?

Mr Hallett: I cannot comment on what the committee is doing, Senator. But it is probably worth also explaining that there are guidelines, as I understand it, for DPS camera operators. That is probably something that the DPS witnesses could assist you further with.

Senator RHIANNON: So maybe it is back to the President. Was that considered in the review, this inconsistency between the chambers with regard to still shots and filming?

The President: That I do not know. I attended only one of the meetings of the review, at its very early stages, and then it was passed over to the secretariat to conduct the rest of the review. So I can find out that detail for you and get back to you and give you a report on that. As to the second thing, the report of the broadcasting committee, I understand that that is yet to be finalised and I am sure that, when it is finalised, it will become a public document.

Senator RHIANNON: When do you expect it to be finalised?

The President: I have no defined time line that I can give you at this stage, but I will search that out.

Senator RHIANNON: Have you had any complaints from the media about these rules and their restrictive nature?

The President: As I said, I have not participated in the taking of evidence or the roundtable sessions, so I am not familiar with the business that was transacted at those meetings. But, again, I can take that question on notice and have it responded to for you.

Senator RHIANNON: Thank you for taking it on notice and for supplying that other information. Could you also take on notice the number of times the rules have been breached over the last decade and whether any penalties were imposed?

Mr Hallett: I can probably assist you there. There is regular dialogue between the press gallery, the Serjeant and myself, because we do the day-to-day running around, if you like, trying to ensure that the guidelines are complied with. It is always a very healthy tension—that is probably the best way to put it—because the media want to get their story. The Serjeant's view and my view is that this is a workplace for senators and members and that is why we have the rules. I am aware of one formal sanction that has been applied on our side of the building in my four years here, and I can get you details on notice about that. It is going to be very difficult to look at how many complaints there have been from the press gallery over the past decade, because generally the way the press gallery works is that it is a telephone call or a corridor discussion. I can certainly provide you with details of the one sanction that I am aware of that has been applied on the Senate side in relation to a press gallery member, early in my time, who did the wrong thing.

Senator RHIANNON: Is it possible to take the question on notice for the past two years?

Mr Hallett: Certainly. That would be—

Senator RHIANNON: More workable. Thank you. I would like to move on to the issue of FOI, maybe to the Clerk and the President, whoever could—

CHAIR: I am sorry to interrupt, but, Senator Ryan, did you have a follow-up question?

Senator RYAN: No. It went back to the other issue.

CHAIR: Sorry.

Senator RHIANNON: Have there been any discussions with the Attorney-General or her office about challenging the interpretation that the Senate is subject to FOI?

 

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Dr Laing: There have been some discussions with officers of the Attorney-General's Department about the decision of the Australian Information Commissioner to revise the guidelines to indicate that the parliamentary departments, other than the PBO, are subject to the act.

Senator RHIANNON: That would lead to legislation?

Dr Laing: Yes. There has been some discussion around legislation, and that discussion is ongoing. There is also a review of the act due to commence late this year, which I am sure I will make a submission to.

Senator RHIANNON: How many FOI applications have been made since the Office of the Australian Information Commissioner made guidelines which note the department is subject to FOI?

Dr Laing: I will ask the Black Rod to answer that one.

Mr Hallett: Through you, Chair, there have been six FOI requests which have been made. They have all been dealt with. They are on our register, which is on our website.

Senator FAULKNER: It would be useful, Mr Hallett, if you could say what 'they have all been dealt with' means.

Mr Hallett: From memory, one was referred to the Department of Parliamentary Services because it was not within the remit of our responsibility. For a second one we had no documents that met the request. A third one related to items that were in the care of senators and had been written off. I contacted two senators who had been unfortunate enough to have their laptops stolen and provided the information and the senators agreed. The remaining requests were to do with the amount of moneys paid to senators, which is already publicly available, but I collated that information and provided it to the people who were requesting the information.

Senator FAULKNER: Thank you.

Senator RHIANNON: Does that mean that you approved supplying the information of three out of the six? Is that how you would describe it?

Mr Hallett: I would not use the word 'approved'. I mean we tried to provide the information where possible. The first case was about catering and senators' use of catering. The Department of the Senate has no role to play in that, so I referred that to the Department of Parliamentary Services. There was another request where we checked the files and we did not have any documents or information, so I advised the person of that and they accepted that. There was the issue of the stolen laptops, as I have mentioned, and the rest were to do with payments to senators.

Senator RHIANNON: Four?

Mr Hallett: Sorry, four. Thank you.

Senator RHIANNON: Considering public money allows the Department of the Senate to function, should it be beyond the reach of FOI laws?

Dr Laing: I might take that one. There is certainly an argument that the administrative functions of the parliamentary departments—the Department of the Senate—should be within the remit of the FOI regime. We do run on taxpayers' money; we are open and transparent about our operations. The difficulty comes, I think, with things that are not the administrative functions of the Department of the Senate, and that is the whole area of proceedings of parliament and the operation of the Senate and its committees, and there is a very strong argument under the separation of powers that those areas should be beyond what is effectively interference by the executive. This is not a radical idea; it is already present in the Freedom of Information Act by the way that the act applies to the courts and to the Office of the Official Secretary to the Governor-General. In recognition of the fact that they are separate institutions of government, the FOI Act applies only to administrative documents of court registries, not to the proceedings of courts, and it applies only to the administrative documents of the Official Secretary to the Governor-General, recognising that there are other areas that are beyond that coverage.

Senator FAULKNER: In relation to transparency for administrative documents and such matters, does the Department of the Senate have a policy in relation to full transparency?

Dr Laing: I believe we do, yes. We have always cooperated with the spirit of the FOI Act. Those students of old annual reports will see from time to time where we did get requests, purportedly under the FOI Act, that we did outline how we responded to them. Yes, I have no argument with the idea that the FOI Act should apply to administrative documents of the department.

Senator FAULKNER: Thank you.

Senator RHIANNON: You raised the important issue about the separation of powers. Obviously it is fundamental to our parliamentary process. I would be interested if you could expand on what makes the

 

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department different from other agencies and therefore would justify, if I am understanding correctly, some level of exclusion from the federal FOI scheme.

Dr Laing: The major difference, of course, is that we are not a government agency. We serve the Senate, which is established under chapter I of the Constitution, as opposed to executive agencies, which serve ministers of state, appointed under chapter II of the Constitution. The running of the Senate is up to the Senate itself. The Senate has control over its own proceedings and committees have control over their proceedings, to the extent that that has been delegated by the Senate. So it is totally inappropriate for any outside body to interfere with those operations. This is the absolute fundamental tenet of parliamentary privilege, going back centuries upon centuries, that proceedings in parliament shall not be impeached or questioned in any place outside of parliament. What parliament does is up to parliament, not up to the executive.

Senator RHIANNON: Yes, it is certainly an interesting one, isn't it. It is like we are cooperating with the spirit but not the law in terms of how freedom of information plays out. Do you feel that there are some contradictions there?

Dr Laing: No, not at all, because for the most part parliament operates in public openly and transparently. Committees have hearings in public, like this, and to the extent that they do not operate in public it is their decision not to. It is their decision about the evidence they receive—whether or not to publish it. Their private deliberations they may disclose in terms of publishing their minutes or relating in reports how they went about coming to a particular decision, but that is up to the committee, and no-one can interfere with that right.

Senator RHIANNON: Thank you.

 

Department of Parliamentary Services

(Subject: FOI)

 

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Senator RHIANNON: Congratulations on your new role, Ms Mills. It was really interesting to hear you outline your plans. I was also interested earlier—before today, obviously—to read about your work on bullying behaviour. My main line of questioning is around FOI. Have you had discussions with the Attorney-General or her office on FOI issues? If so, do you understand, from those discussions, that legislation will be introduced which will put parliamentary departments beyond the reach of FOI?

Ms Mills: I have not personally been part of those discussions but obviously I have been party, with the other House departments, to providing advice to the Presiding Officers on the issues connected with FOI. If I may, I will give you my own department's point of view. I heard part of what the Clerk of the Senate said this morning about the importance of transparency on administrative matters and I certainly strongly support that. We have received seven FOI requests since the decision in May this year, I believe it was, to cover us through FOI. Of those seven, two are still in train, four were requests for material not held by the department and one was for an item we were happy to provide—a personnel file which could actually have been asked for through other processes.

Our approach is that we are very strongly supportive. I believe our department should be transparent. I believe that, where we utilise taxpayers' money, that should be the case. But I also recognise the complexities, particularly in the parliamentary environment, of some of the material, as well as some of the reasons behind the consideration of exemptions.

Senator RHIANNON: You have spelled out there not only how supportive you are of it but also the complexities of it. You also made reference to some of the earlier questioning on this issue. I think the theme—maybe it is a way to sum it up—is that there is a commitment to support the spirit of the openness and the transparency but possibly some concerns about the legislation covering it. Wouldn't it be appropriate, though, for the law to cover the departments, particularly at a time when—I think we would all agree—the standing of parliament and the standing of MPs is a little bit problematic for many members of the public? Would you see that, rather than going for blanket exemptions, which seems to be the effect if we have the legislation come in to exempt departments, the departments could identify those parts which are sensitive information and apply for exemptions for those, so then the departments can be compliant with the law and equal to all other departments?

Ms Mills: I will certainly be guided by experts in the legislative arena and Attorney-General's about the best way to construct the balance between protection of necessary information and transparency. I can only comment that we will work to culturally support the concept of FOI wherever it is reasonable and possible for us to do that. I strongly support the notion that for government departments, particularly in the type of work that my department does, with the vast majority of that information it is beneficial for the community to be aware of it.

 

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The President: Not at this stage. We have not become that deeply involved at this stage. We are just waiting for the course of whatever might take place in this area to take place, and then we will give it the due consideration. But I am listening closely to the debate.

Ms Mills: We have spoken at length this morning about security. There are aspects of the work of the department that of necessity are probably exempt in some ways, even under standard FOI regulations. I would also say that the department, in my looking at our files and processes historically, even when not officially covered by FOI has made its best endeavours to act in concert with the intention of FOI throughout—

Senator FAULKNER: Yes, but current exemptions under the act would apply.

Ms Mills: Yes.

Senator RHIANNON: It is interesting to remember that back in 1996 the former Clerk, Harry Evans, was quite clear in arguing for the extension of the FOI Act to parliamentary departments. There is a developing discussion around this. You have just spoken about how important and beneficial it is for the public to have a greater understanding of how parliament works. The Scottish parliament has a lot of the administrative information online so it is readily available to the public and quite easy to search. As you have spoken about your commitment to providing this information so it is publicly accessible, is that something you have considered or would consider?

Ms Mills: I said at the beginning that one of the reasons I have unfortunately not been able to table our annual report yet is that I believe that some of the data we currently collect could be more meaningfully provided and more meaningfully interpreted for senators, members and members of the community. Certainly I will always look at good practice elsewhere as a way to explore how we can tell that message. One thing about the Department of Parliamentary Services is that a great deal of effort is focused upon supporting the operations of parliament, and it is true that many people in the community do not fully understand how parliament works and if we can contribute in some way to that then I would be very pleased to do so.

Senator RHIANNON: The evidence we have heard in this session and the earlier session suggests that there is a commitment for some information to be in the public domain but not for the departments to be on an equal footing with regard to the legislation. Considering that such a shift is going on within other jurisdictions— Tasmania's 2009 Right to Information Act covers requests to parliamentary departments, though true it is limited to administrative matters but that is essentially what we are discussing, and then England, Scotland, Ireland, India, South Africa and Mexico's FOI regimes also capture parliamentary departments—Australia at the federal level has this different position. Is there something different about Australia? Why are we different from this quite clear trend towards having consistency with regard to FOI laws?

Ms Mills: As I said, I would not want to speak over the expertise of my peers in the parliamentary departments, in the chamber departments in particular, whose advice is that it is critically important that we do not inadvertently restrict the appropriate operations of the parliament through this. What I have also committed to, as has I believe the Clerk, is that where it is an administrative matter about the performance of the department as opposed to the necessary processes of the performance of the parliament, the distinction is appropriate.

Senator RHIANNON: Does that not underline how it would be timely, rather than to bring in a blanket exemption for the parliamentary departments for the negotiations, if you thought there were sensitive areas that should be excluded, to look at adding to the exemptions rather than living in the current arrangement where the law does not apply but we keep on hearing that there is a commitment to provide the information. Should this not be tidied up?

Ms Mills: Again I would reference the Senate department and the House of Representatives department and the PBO all as being experts in the content knowledge of their area. Within my own area, as I said, in the main the type of work that we do and the type of support we provide to the parliament is probably something that is more readily provided to the community, and our practice has been to do that and we will continue to do that regardless of the legislative regime, but always bearing in mind that we do not want to compromise the operations of parliament or inadvertently cause matters of security or matters of complexity around legislative development to be revealed in a way that actually prohibits them progressing.

Senator RHIANNON: I think that helps me pinpoint the need for the very sensitive information that should not be released about putting them into the exemptions. I thought it would be useful if you could explain what information your department holds that should not be made public through the FOI process, and why it should not be made public.

Ms Mills: At this point I would probably take that on notice. As the President said, this is very early days. It is an issue that we have only just begun discussions on. I have not participated in any direct

 

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discussions with the Attorney-General's yet. One of the issues for me is that the items that have been sought from us under the FOI in the last six months or so are not data that is held by our department anyway, so perhaps clarity of that would help the community understand roles and responsibilities. But it was probably data that for commercial-in-confidence or other reasons may not be released regardless of whether it was a parliamentary department. Clearly all departments even under the FOI regime have to make judgement calls about that at any one time.

Senator RHIANNON: If you could take that on notice, I think it would help advance this discussion which is so important.

 

Department of the Prime Minister and Cabinet

(Subject: Sri Lankan High Commissioner)

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Senator RHIANNON: During the discussion of the appointment of the Sri Lankan High Commissioner, Mr Samarasinghe, was Prime Minister and Cabinet briefed by DFAT?

Ms Tsirbas: I will have to take that question on notice.

Senator RHIANNON: Could you also take on notice whether or not you were briefed by the AFP during the discussion of his appointment? Do you have any information about the appointment?

Ms Tsirbas: Yes, I do. I believe a series of questions—on notice and during Senate estimates—relating to the appointment have already been answered.

Senator RHIANNON: That is why I was now interested in building on some of those previous questions. Was PM&C briefed by DFAT or briefed by AFP?

Senator Chris Evans: The officer has taken the first question on notice. We will take the second question on notice as well.

 

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Senator RHIANNON: Did either of those departments have issues with the appointment of the High Commissioner? This is a similar question, but I am just asking it from the perspective of whether or not those departments were proactive. So my first questions were whether the department had sought briefing—I am trying to understand the process here—or whether, if either DFAT or AFP had had issues about the appointment of the High Commissioner, they would have taken the initiative in briefing PM&C.

Ms Tsirbas: It is my understanding that AFP would not normally be involved in the process of agrement—the process by which a country seeks approval for the appointment of a high commissioner. The lead department for that is the Department of Foreign Affairs and Trade.

Senator RHIANNON: I am aware of that, but that is precisely why I am asking the question. You said 'not normally'. Does that mean that there are certain circumstances when they do get involved?

Ms Tsirbas: I am not aware of any but I would have to take that on notice to check.

Senator RHIANNON: Thank you. If the advice has been provided—I imagine you will have to take this on notice—could you inform the committee whether there were any discrepancies between the advice of the AFP and that of DFAT?

Senator Chris Evans: I think the answer to that is no.

Senator RHIANNON: How do you know?

Senator Chris Evans: The answer to whether we have the information here is no. If AFP had raised issues, I doubt whether we would be revealing that advice or discussing how that compared with the advice of other departments. It really goes to the issue of advice to government. I am happy for the officer to take it on notice but I—

Senator RHIANNON: So your 'no' was not 'no, there was no discrepancy'?

Senator Chris Evans: No, I am just saying that the idea we are going to tell you that the AFP said this or that about an appointment—I did not want you to be waiting next to the mailbox for this advice to come.

Senator RHIANNON: Thank you for clarifying that. It was not immediately clear. Considering the Age on 24 January last year ran a story that PMC was aware that DFAT saw the appointment of Mr Samarasinghe as high commissioner as problematic—so that is in an Australian newspaper in January 2011—would PMC have considered that report and requested more information? You are about to take a high commissioner but it is identified in a newspaper that DFAT has found this problematic. So, working on the assumption that DFAT has not given you any information but it is now in the public domain, would you then seek further information about that? It is now more a process question—just how you handle these matters.

Ms Tsirbas: I would have to take that on notice. It is going quite a way into the past now.

Mr McKinnon: If you are asking about the process in general terms, the answer would be that the process is run by Foreign Affairs and Trade and there may from time to time be elements of background in newspapers on certain players which would not necessarily automatically trigger PMC involvement in these things.

Senator Chris Evans: Isn't the central question, though, what is PM&C's role in the approval of the appointment of someone as an ambassador or high commissioner to Australia?

Ms Tsirbas: Diplomatic agrement is a matter for the Foreign Affairs portfolio.

Senator RHIANNON: But doesn't PMC have some involvement in this process? I am trying to understand the process here. We have somebody who has been proposed as a high commissioner, and they are under a cloud and that has been reported publicly. Are you saying that PMC would take no interest in that and just leave it up to DFAT?

Mr McKinnon: Fundamentally it is a matter for the foreign minister, for the foreign affairs portfolio, and were there to be a particularly controversial proposal for agrement then it would be a matter for the foreign minister to raise with the Prime Minister or the foreign minister to raise with Prime Minister and Cabinet. We certainly would not be scanning the newspapers and using that as an indicator. Before that time you would hope the bureaucratic wheels would have clicked into process. That is a general answer not specific to this case.

Senator RHIANNON: I am trying to understand the general process. You are saying that even with something as serious as this case, considering the high commissioner has been linked to the war and to crimes against the Tamil community, PMC would not be involved; they would just be leaving it up to the foreign minister and DFAT and for it to go through other channels?

Mr McKinnon: I did not exactly say that. What I said was that were there to be a particularly contentious proposal for agrement then the foreign ministry, who have responsibility for this process, would of their own

 

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volition notify Prime Minister and Cabinet, if they thought that the Prime Minister needed to be made aware. It would not be a matter of us not hearing anything from the foreign ministry and reading it in the Age and then going to them. If you are talking about the way a process generally runs, no, it would not be a matter of us reading something in the newspaper and then having to go to them. Well before that time the foreign ministry, if they thought there was a contentious proposal, would have alerted Prime Minister and Cabinet in the normal way. Again, that is a statement of the way things would generally work; it is not a specific account of what happened on this occasion.