2016-05-24
Mr BARBER (Northern Metropolitan) — The establishment of a Parliamentary Budget Officer (PBO) will give Victorian voters and even other observers, political commentators, information on the fiscal and economic impact of election commitments. It will operate in a similar way to the commonwealth PBO in that it will be a full-time office with different duties during election periods than at other times.
The Napthine government introduced a PBO bill, which was defeated by Labor and Geoff Shaw in the lower house. The Liberal PBO would have been a temporary office only during the election period. That bill did not ever make it to the upper house, and therefore the Greens MPs at the time did not have an opportunity to put our view. However, I did in fact make a submission to the process that Treasury set up. I actually proposed a longer time period — this is to the former government's bill, the Liberal government's bill — for the pre-election body of work and also stated a preference for a permanent office. I supported the establishment of memorandums of understanding between the PBO and other government departments to obtain the information they need, the independence of the office and measures to avoid cabinet confidentiality being used as a reason to withhold information from the PBO. In fact all of those matters are reflected in this current bill, so you will not be surprised to hear that the Greens will be supporting this bill.
The PBO will overwhelmingly assist opposition parties. The government has Treasury, and at the next election it will also have Infrastructure Victoria if it chooses to seek advice from that body. The Greens used the commonwealth PBO extensively in the lead-up to the 2013 federal election and into this election that we are in. In fact the commonwealth PBO was set up as the result of an agreement between the Greens and the Labor Party to form government; that was with the Gillard government. One of the many measures that we agreed upon in order to support the Labor government with confidence and supply was to set up the commonwealth PBO, and so far we have been quite pleased with the way it has been working. As I said, we have been making extensive use of that PBO, and I look forward to this PBO being established because I am sure the Greens will be its best customers and its members will probably be down there on opening day ready to hand over their tokens.
There are a number of key issues that we need to look at, though, in determining if we think the model is right here. Will the PBO be an independent officer of Parliament? We have gone through and compared the relevant sections of legislation for different independent officers of Parliament and we are sure that as far as there is any consistency amongst the different pieces of governing legislation for what are known as independent officers of Parliament this one is making a reasonably good model for that.
Can the PBO get the information it needs to do its job? That is very important. First of all, the PBO will have similar information-gathering powers to the commonwealth PBO. The commonwealth PBO reports that the system of information sharing is working well. Most information sharing is under formal and semi-formal arrangements with public sector bodies. Like the commonwealth PBO, the Victorian PBO will be allowed to ask private bodies for information. The provision of information will be voluntary.
In relation to commercial in confidence, clause 26 of the bill provides that as a grounds to deny a request for information in circumstances where there is no memorandum of understanding (MOU) as set out in clause 25, or the MOU is not adequate. Clause 3 defines 'confidential commercial information' as that which would be 'likely to expose the undertaking unreasonably to disadvantage'. 'Unreasonably' was suggested to us as being intended to narrow the exemption to live negotiations for contracts. We may get into that issue a little bit when we get into committee of the whole just to get an answer on the record which supports the narrow interpretation of this exemption. In fact if we can achieve that threshold, then we would actually be in a better situation than the commonwealth provision, which has no separate definition for 'confidential commercial information'.
In relation to cabinet confidentiality, clause 25 — again with the MOUs — and clause 26, provision of information outside of an MOU, both refer to section 28 of the Freedom of Information Act 1982, which is the FOI exemption for confidential cabinet information. The wording is ambiguous; however, the explanatory memorandum indicates that the effects will be that public sector body heads will warn the PBO when they provide information that is an exempt document under section 28 of the FOI act but they will nevertheless hand over the information. This interpretation is further strengthened by the existence of clause 37(2)(g)(v), which provides for the PBO to protect documents that would be exempt under section 28 of the FOI act on top of the other general provisions for keeping confidential information confidential.
Clause 56 stops people using the PBO as effectively a back door to get a hold of confidential information that they would otherwise not be able to access through FOI. If there was any chance the FOI provisions that are shadowed in clauses 25 and 26 of the bill will be interpreted as a reason for a public body to avoid providing the PBO with information, we would be quite concerned about that. If that were the case, a hostile government would be able to use cabinet confidentiality to stymie the PBO. And what would be the point of that? What would be the point of setting up a PBO and then stymieing its access to information?
In fact you could then have a situation where the government of the day was promising a particular policy based on the information it has got and has considered in cabinet and the PBO could be asked to cost, effectively, an identical policy and could come up with a different number for what is agreed to be the same policy. That would defeat the purpose of the PBO and in fact would just create a bunch of confusion amongst the public to no political benefit, because while I said opposition parties will be the major users of this thing, the major beneficiary of the PBO is actually the people of Victoria. It is not just there for opposition parties to make better policies. It is actually there to tip the balance of information more towards the public, who get an independent officer of Parliament that can cost things and decide whether the promises being made by parties are underdone or in fact, through the processes of this bill, can force those parties to come up with more accurate numbers. Frankly, forcing parties that might be a part of an incoming government to more accurately cost their policies is not only good for democracy but it probably also saves money in the long run. It would save us from some of the gotcha efforts where they come into government and suddenly find that what they promised in opposition was insufficient.
Unlike actual FOIs, there are no grounds for appeal on whether a document has been correctly identified as an exempt document. It is all very well to import that definition from the FOI act into this act, but that definition when it is an FOI application is subject to testing at tribunals. Here it is simply a never-ending argument between two different bodies as to whether a document is correctly identified as cabinet in confidence.
The other issue we considered quite closely is whether the post-election reporting will include all policies or just the ones the party has chosen to release amongst the ones it has had costed by the PBO. The post-election report, according to our reading of the bill, will include the policies of each parliamentary leader that were publicly announced before the date of the general election whether or not those policies were the subject of an election policy costing request. This is again similar to the commonwealth provisions. Our submission back at the time of the 2013 discussion paper included support for the post-election report. In fact we suggested that a report be done at the end of the calendar year following the election to include any policies announced that were even not submitted for costing or that were unable to be costed prior to election day.
Should there be an automatic trigger for the PBO to release a costing? The bill gives the party leader absolute control over whether, and therefore when, the PBO releases the policy costings during an election period. This is similar to the commonwealth PBO. I understand that the coalition and others are going to try to perhaps create some controversy around this. It is entirely possible to start asking a series of what-ifs about all the provisions in this bill. But we have the advantage of having seen in operation and being intimately involved with the commonwealth PBO where, as I say, many of the same provisions are reflected, and we have just a little more confidence in the PBO itself than those others who would like to perhaps posit the most extreme examples of manipulation of process.
That is not what this is about. In fact there is not a lot of incentive to do that. Fairfax journalist Peter Martin has written a series of articles calling for the automatic trigger provisions at the commonwealth and state levels to stop a repeat of the 2013 federal election, where Tony Abbott claimed PBO authority for his costings but then did not release them. Peter Martin says Bill Shorten is starting to use some of the same dance moves. I suppose it indicates that the threat of a post-election report is not sufficient to spur some party leaders into releasing the costings when it really matters — during the campaign. The Napthine government's PBO bill included an automatic release provision, so I have no doubt the Liberals will be raising that again — but then again they are in opposition now, so I suppose it is more likely to apply to them.
I have not had a chance to scrutinise the amendments that Mr Rich-Phillips has just circulated, but we will get to those when we get to the committee stage. The main problem, though, with an automatic release, the way we see it, is that the PBO has to make a judgement call on whether a party leader has (a) formally announced a policy and (b) announced the same policy as the one that the costing was based on — that is, with the same assumptions and details. No matter how much you try to put more legal controls around this, there will always be a way to sidestep it. A party could get a spokesperson instead of a leader to announce the policy. Even a very tightly worded automatic release trigger creates uncertainty. For example, if the trigger was a party leader making a public statement that the PBO had costed a policy, it still creates uncertainty for the PBO. What is a public statement? How does the PBO monitor all public statements? And the parties can still sidestep the trigger if they want to.
As I say, we have had a good record with the PBO. A trigger is not our problem, and frankly there is no way to make Tony Abbott stop being Tony Abbott or make Bill Shorten stop being Bill Shorten. Certainly the Greens will be able to use this and expect to make full use of the PBO. During the election period the PBO focuses on work for the Parliamentary leader. Outside of the election period the PBO has broader education policy development and costing functions for all MPs.
There are others who have argued that this PBO bill should go further — that the PBO should start doing its sort of own-motion analysis of various public finance issues. I would love to see that. That would make it something like the Congressional Budget Office over in the US, which seems to provide quality assurance against all of the different statements, including those of the government, unsolicited, or at least the executive as it works over there. However, the amount of money that this government is willing to provide to the PBO is in fact a rate-limiting factor.
I would love to be here moving amendments to expand the scope of the PBO, but in fact it has only got X amount of money. It is going to inevitably go after its core functions. So the parliamentary leader is not necessarily triggered to party status or any other piece of statute. It simply includes a member of Parliament who is the recognised parliamentary leader of a registered political party. The definition of a parliamentary leader also would provide for Independents and MPs who do not have recognised leaders to make use of this.
We are quite pleased to see this bill appear. We are really looking forward to the PBO being set up. It will certainly require greater rigour from those who like to throw around election promises, and we think that the major beneficiaries of the establishment of this body will be members of the public, who are going to hear some independent assessment of party policies, the costings associated with them and the assumptions that have gone into them — and that will apply, of course, on both the spending and the revenue side. I hope this bill can be advanced and the office can be established as soon as possible.
To access full speeches and debates please visit http://hansard.parliament.vic.gov.au/isysadvsearch.html where you can search Victorian Hansard publications from 1991 onwards.