Wilson: Parliament And Official Information
Keynote Address to Information Law Conference marking 25 years of the Official Information Act
170 Wakefield St, Wellington
10 am, Tuesday 15 May 2007
Speaker of the House of Representatives
Today we celebrate 25 years of the enactment of the Official Information Act 1982 (hereinafter called OIA). This Act was a tribute to its creators who served on the Danks Committee. It encapsulated in statute the principle of freedom of information better than most similar pieces of legislation. The focus of the Act was information and the rights it created related to process.
It established a disputes resolution and enforcement mechanism that was, and has remained, relatively inexpensive, accessible and speedy. Its provisions were designed to achieve its primary purpose of making official information available for the purpose of effective participation in the making and administration of laws and policies, and of promoting the accountability of Ministers and officials (ss 4 and 5). In essence the Act was designed to promote democracy through democratic decision-making that was transparent and accountable. Such decision-making is unlikely unless members of the public have access to the information on which decisions are made. The OIA gives us all that access and the opportunity to participate in the decisions that affect us all. For those interested in the preservation and promotion of democracy, the Danks Report makes excellent reading.
I am aware that other participants will deal with the OIA in detail during the course of this conference. I shall therefore concentrate my comments on what to some is seen as an anomaly, namely, the exemption of Parliament from the coverage of the OIA. It is a fair question to ask why this was the case when the OIA was enacted and why it remains exempt today. It appears that at the time of the Danks Committee consideration of the issue of access to official information, the emphasis was on constraining the exercise of executive power . Parliament was not considered to be part of the problem in this respect. In fact it is an essential part of the solution when it comes to executive accountability. I would argue that remains the case today and will explore this point later in the presentation.
New Zealand was not alone in excluding the Parliament from the jurisdiction of freedom on information legislation. Most Westminster-style Parliaments were not subject to such legislation. For example, Australia, Canada and New Zealand, as well as the US Congress, are not covered by freedom of information legislation. In 1999 there was a Commonwealth Law Ministers Conference that considered the issue and recommended Parliaments should be covered. Freedom of information legislation that extends to Parliaments is now enacted in India, South Africa, Ireland and the West Indies. The United Kingdom Parliament also included the Parliament within the Freedom of Information Act 2000 which came into force in January 2005.
A Private Member’s Bill to amend this Act is currently before the House of Commons. The Bill has two purposes: firstly, it removes both Houses of Parliament from the list of public bodies included within the scope of Schedule 1 of the Freedom of Information Act 2000; secondly, it makes communications between Members of Parliament and public bodies exempt from the FOI Act 2000, although the Bill does provide for such correspondence to be disclosed if in the public interest. After some debate the Bill has survived and is due for debate again at the end of this week.
The debate surrounding the enactment of the United Kingdom legislation – both the original Act and the Amendment Bill - provide a useful summary of the type of issues that arise when freedom of information legislation is extended to Parliaments. The primary concern of the Government was to ensure that parliamentary privilege was preserved. Parliamentary privilege is a complex legal concept little understood by many, including Members of Parliament. Its main elements however relate back to Article IX of the Bill of Rights 1689, which is designed to protect free speech in Parliament, and the right of Parliament to manage its own affairs without external interference, even from the courts.
The rationale behind this constitutional concept is that Parliament must operate independently on behalf of the public. While few would challenge this fundamental constitutional notion, the question is how far does such a concept reach? Does it extend beyond the formal Parliamentary business in the Chamber, committees, and in questions, motions and other ‘proceedings of Parliament’, as well as to matters of administration such as finance, security, personnel and such matters?
In the New Zealand context, matters of parliamentary privilege and ‘proceedings of parliaments’ are laid down in the Standing Orders of the House of Representatives, which are interpreted in Speakers Rulings. Standing Orders have been amended from time to time to ensure there is a more open approach to proceedings. For example, Standing Orders incorporated the principle of natural justice when the Bill of Rights Act was enacted. This principle has extended to members of the public the right to respond to allegations made against them in the House or a select committee. This right is exercised on a regular basis by members of the public. More recently Standing Orders were amended to include the declaration and registration of Members of Parliaments’ pecuniary interests as a check against abuse of power or conflict of interest allegations.
It may be argued that the combination of the Official Information Act, the Fiscal Responsibility Act and Standing Orders have created a regime of considerable freedom of information. These regulatory regimes operate within a culture of inclusion of the public in the proceedings of Parliament. Considerable efforts are undertaken to inform the public of matters in Parliament. For example, although proceedings of Parliament have been broadcast since 1936, it is only this year that we can claim that 81% of the population can now hear the broadcasts on their radios. While Question Time is televised, it reaches relatively few people. Most people only glimpse Parliament on the 6 o’ clock news after being edited for often entertainment rather than news value. An opportunity to view all proceedings of Parliament will shortly become available when in July parliamentary debates will be webcast live on www.parliament.nz. A live feed will be made available to broadcasters to use as they wish and we hope that a broadcaster will take up the opportunity to provide complete unedited broadcast of all debates as happens in the United Kingdom.
I am aware there is relatively little analysis of parliamentary proceedings apart from In the House, a five-minute programme broadcast of Radio Live (www.radiolive.co.nz) at 4.45pm on House sitting days and on 9.50am on Sundays. This Week in Parliament is broadcast on Access Radio (www.accessradio.org.nz) at various times from Friday night to Monday morning. This Week in Parliament: Pacific Edition is broadcast on Radio New Zealand International on Friday evenings and Saturday mornings. (www.radionz.co.nz) A 10 minute daily programme and a 15 minute weekly summary are also available from BigPod www.bigpod.com.
In this context of accessibility to Parliament, it is useful to note that thousands of people visit Parliament each year. Events such as Open Day and Youth Parliament introduce the community to parliamentary procedures and customs. Community groups also avail themselves of the opportunity to learn more about Parliament; the Business and Parliament Trust runs seminars and there is leadership training and development courses from within the public and private sector. Overall the culture of openness and accessibility is encouraged. It is important then to try to identify what concerns if any there are with extending freedom of information legislation to Parliament.
One area of concern has been that the extension of the Official Information Act to Parliament may actually constrain access to information. All Parliamentary information is available to the public unless the House, by order, or a committee unanimously determines otherwise. Such orders are uncommon, and the normal process is that requests for access to parliamentary information are actioned without recourse to any tests such as the public interest test. It has happened, for example, that information declined for release by a Minister, was obtained without restriction from Parliament when the information was put before a select committee, and thereby held as part of the select committee records.
It would not be impossible to ensure any freedom of information legislation did not have the perverse effect of restricting information that is already available. In fact in the area of proceedings of parliament, I foresee very little objection to a suitably worded amendment to the Official Information Act. The real concern I suspect would come from subjecting the administration of parliament to the scrutiny of the OIA. It may be useful therefore to briefly outline the administrative framework of Parliament.
The Parliamentary Service Act 2000 (PSA) and the Public Finance Act 1989 (PFA) are the primary regulators of the administration of Parliament. The PSA establishes the Parliamentary Service Commission (PSC) and the Parliamentary Service. The Commission advises the Speaker on matters to be included in the Speaker’s Directions that contain the services and entitlements of Members of Parliament that are required to enable them to fulfil the parliamentary purposes for which they were elected. The Parliamentary Service provides the administrative and support services to members in accordance with the Speaker’s directions. The Public Finance Act makes the Speaker the Minister responsible for the financial appropriation allocated to support Members and the institution of Parliament.
The structure appears simple but has become complex in its operation. This is not the appropriate place for me to discuss Parliamentary administration. It is an arcane topic for a discrete audience. I would say however that it is of importance because the credibility of Parliament is to some extent dependent on the ability of Members to conduct their own affairs in manner that is consistent with the public interest.
Let me state at the outset that I personally find it anomalous that the administration of Parliament is not subject to the OIA, with suitable protections for the privacy of communications between Members of Parliament and their constituents and agencies that they petition on behalf of the public. As a Minister I was well accustomed to the scrutiny of the OIA. I have my own views on the Act which I conveyed to researchers from the Institute of Policy Studies, Victoria University who conducted a review of the Act. I look forward to reading the findings of the review which I understand will be published about the middle of the year. I can understand however some of the concerns of those Members who have never experienced that scrutiny of their affairs.
Currently, the Parliamentary Service and the Commission do report to Parliament. Parliamentary Service and the Speaker also appear before select committees to answer for their administration of the appropriation. There is then a level of public accountability. It is fair to say that sometimes the reports are opaque and the sums aggregated. It is not possible to access details of individual Member’s expenditure or policy papers, or information on administrative matters. The Office of the Clerk does have a policy of being open to release information when requested. The Parliamentary Service is not so open because of the need to work under the direction of the Speaker and Members.
What then are the barriers to disclosure of such information? There are two primary concerns as I understand the arguments. The first is the concern that the information be accurate because of the consequences for the Members if it is not. This concern is real. Various Auditor-General and select committee reports have expressed concern about matters of administration. Also Members have been stood down from Ministerial positions while inquiries were conducted into advice they acted on. Even though the Auditor-General found the Members had acted reasonably on taking the advice and were subsequently reinstated, the political cost was high. Reliability of information and the use of that information by the media are two major concerns. While I accept the legitimacy of the concerns, I still believe a process could be devised to check the information. As to the media, it is interesting to note that a similar concern was raised about the pecuniary interests of Members of Parliament being made public. To date there appears to have been no problem with that information being in the public arena. I have no doubt there will be a prurient interest in who takes taxis where and how much they cost. The only way to prevent that happening is for such expenses to be incorporated within a global salary.
There is another concern however that may have more substance and that is the privacy of the communication between Members and their constituents, which is the essence of the Private Member’s Bill before the House of Commons. It is important not to restrict the freedom of the public to communicate with their Members of Parliament and for them to respond. Freedom of speech is a fundamental constitutional principle of our Parliamentary democracy. It needs to be vigilantly protected. Again however it would not seem impossible to work through a process where privacy was protected and the public interest was taken into account in any specific disclosure of information. The Privacy Commissioner has invited Members of Parliament to consider the development of appropriate guidelines relating to their collection and use of information they hold relating to constituents or other private individuals.
I am not the first Member of Parliament to support greater disclosure of information. In 1999, a cross party committee of Members of Parliament led by former Cabinet Minister Hon Stan Rodger undertook a review of the Parliamentary Service Act 1985 for the Commission. It recommended extension of the OIA, with necessary protections and exclusion of information relating to Members as members or information relating to political parties and their organisation. Two years later the PSC requested a background memo covering the history and the present position of Parliament in relation to the OIA. In 2004 Green Party co-leader Rod Donald asked the PSC to reconsider the Rodger Committee recommendation. The matter was referred to Party caucuses and no further feedback was recorded as being received.
It is there the matter rests in the meantime. There is little energy or interest in extending the coverage of the OIA to parliamentary proceedings or the administration of Parliament. I personally see much merit in the proposal. It would make little difference to current practice relating to parliamentary proceedings. It would, in my view greatly improve parliamentary administration if there was the discipline of the OIA provisions, with the necessary provisos of protecting the privacy of constituents.
I trust that in the future the matter will be revisited in an appropriate way in the future. Conferences such as this are an excellent opportunity to discuss the issue and gauge the level of support for a change. If there was to be such a review then it may be of interest to examine why the Controller and Auditor-General and the Ombudsman Offices are not also covered by the OIA. Regardless of the formal legal requirements, there is a culture of openness and transparency within Parliament.
There is little to fear by Members if those concepts were extended to Members of Parliament in the OIA. I trust we do not have to wait another 25 years before we see such an amendment.