Estimates 2001-2002 report
June 2001
© Parliament of the Commonwealth of Australia 2001
ISSN 1323-3750
Report (PDF 272KB)
Senate Community Affairs
Legislation Committee Secretariat
Mr Elton
Humphery
Secretary
The Senate
Parliament House
Canberra
ACT 2600
Phone: 02 6277 3515
Fax: 02 6277 5829
E-mail: community.affairs.sen@aph.gov.au
Internet: http://www.aph.gov.au/senate_ca
Membership of the committee
|
Senator Sue
Knowles, Chairman
|
LP, Western Australia
|
|
Senator Lyn
Allison, Deputy Chair
|
AD, Victoria
|
|
Senator George
Brandis
|
LP, Queensland
|
|
Senator Kay
Denman
|
ALP, Tasmania
|
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Senator Chris
Evans
|
ALP, Western Australia
|
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Senator Tsebin
Tchen
|
LP, Victoria
|
Senate community affairs legislation committee
Budget Estimates
2001-2002
Report
Introduction
1.1
On 22 May 2001 the Senate referred the following documents to the Committee for
examination and report in relation to the portfolios of Health and Aged Care,
and Family and Community Services:
- particulars of proposed expenditure
for the service of the year ending on 30 June 2002
- particulars of certain proposed expenditure
in respect of the year ending on 30 June 2002.
1.2
The Committee has considered the proposed expenditure
of the portfolios set out in their respective Portfolio Budget Statements
2001-2002 and related budgetary documents. Explanations relating to the
estimates were received from Senator the Hon
Amanda Vanstone,
Minister for Family and Community Services, and Minister representing the
Minister for Health and Aged Care and officers from the portfolio Departments
at hearings held on 28, 29 and 30 May
2001. The Committee expresses its appreciation for the assistance
of the Minister; Ms Mary
Murnane and Mr
David Borthwick,
Deputy Secretaries, DHAC; and Dr David
Rosalky, Secretary, DFaCS, and the officers
who appeared before it.
1.3
In accordance with Standing Order 26, the Committee has
agreed that the date for submission to the Committee of written answers or
additional information relating to the expenditure is 29 June 2001.
1.4
The Committee discussed many of the budget measures and
information contained in the Portfolio Budget Statements. These discussions are
detailed in the Committee’s Hansard
transcripts of 28, 29 and 30 May
2001, copies of which will be tabled in the Senate. Hansard transcripts of the estimates
proceedings are also available on the Internet at http://www.aph.gov.au/hansard/senate/commttee/comsen.htm
Volumes of Additional Information received by the Committee containing answers
to questions taken on notice and tabled documents relating to the Committee’s
hearings, will also be tabled separately in the Senate and be accessible on the
Internet at http://www.aph.gov.au/senate_ca
Answers to questions taken on notice
1.5
The
majority of answers to questions taken on notice at the Additional Estimates
hearings held on 19 and 20 February 2001 were provided to the Committee by both
portfolios by the due date of 16 March 2001. However, a significant number of answers were
not provided to the Committee until the ‘last minute’ - allowing the Committee
only one working day to consider these answers before the commencement of the
Budget hearings on 28 May 2001. These extremely late answers related mainly
to the aged care area in the Health and Aged Care portfolio and IT outsourcing
in the Family and Community Services portfolio.
1.6
Although
answers are provided to Senators upon receipt by the Committee Secretariat from
portfolio departments, and then also become publicly available, the late
provision of answers causes delays in the completion of the volumes of
Additional Information. These volumes contain an indexed list of, and the
consolidated answers to, questions on notice listed in Outcome order, as well
as documents that were tabled at the hearings.
1.7
The
Committee is aware of the problem of the unusually high number of questions
being placed on notice at the recent hearings and understands the difficulty in
fulfilling the timetable on this occasion. However, the Committee requests that
portfolios make every endeavour to provide all answers by the date that the
Committee sets for the return of answers to questions taken on notice.
1.8
The late
provision of answers from the Family and Community Services portfolio, as noted
above, related to IT outsourcing issues raised at the Additional Estimates
hearing in February. These answers were accompanied by a letter from DFaCS
dated 25 May 2001 (Attachment A) outlining reasons for the delay in
providing the answers and why some responses still had not been provided. The
letter indicated that:
The Minister for Family and Community Services is considering
issues of legal privilege, privacy, and commercial confidentiality and
sensitivity around some of the requested material. Cabinet confidentiality is
also an issue with respect to some material. As a consequence, some answers
have not been provided with this letter.
1.9
At the
hearing Senator Evans tabled an advice he had sought from the Clerk
of the Senate, Mr Harry Evans, in relation to the content of the letter from DFaCS (Attachment B).
Commenting on the above paragraph in the DFaCS letter, the Clerk of the Senate,
stated that:
Presumably this paragraph means that the minister is considering
whether a claim of public interest immunity should be raised in relation to
some of the material required by the questions. The language of the paragraph
suggests grounds on which public interest immunity claims might be raised. It
also suggests that the department is under a common misconception about claims
of public interest immunity. That misconception is that material may be
withheld from a parliamentary committee simply on the basis that it is “confidential”. The recent report of the Auditor-General has again sought to
dispel this misconception:
The fact that particular
information is confidential, for example, because it relates to the commercial
activities of a person or body with which the Executive Government is
contracting, does not, by itself, provide grounds for resisting disclosure on
the basis of public interest immunity.
(The Use of Confidentiality Provisions in Commonwealth Contracts, paragraph
1.31)
1.10
Senator Evans indicated that
the Labor Opposition ‘do not accept on face value the defence given for failing
to hand up the documents’[1], and intend
pursuing the material relating to the particular answers which were still
outstanding.[2] The Minister undertook to investigate the
matter and provide a response as soon as possible.[3]
Portfolio Budget Statements
1.11
As part of
its continued monitoring of the format and content of the Portfolio Budget
Statements, the Finance and Public Administration Committee sought comments
from Senators during the various Legislation Committees’ consideration of the
estimates. Committee members took the opportunity to
comment on the PBSs throughout the course of the hearings.
1.12
The suggestion was made that it
would be very useful to have the four-year forward estimates (by outcome, major
appropriation and special appropriation) included in the PBS. DHAC, which
provides these forward estimates to the Committee on request, was asked to
consult with the Departments of Finance and Treasury regarding the possible
inclusion of four-year forward estimates in future PBS.[4] Dr Rosalky advised
that the Family and Community Services portfolio could similarly provide a breakdown of the four-year forward
estimates.[5]
1.13 Senators encountered some difficulties in identifying
where Outcome questions should be asked of portfolios due to the PBS 2001-2002
containing a greater number of measures that spread across two or more
Outcomes.[6] The Deputy Secretary of
DHAC, Mr Borthwick, explained that this is a reflection of payments mechanism and
policy development issues being in different divisions (and thus outcomes)
within the portfolio.
It also reflects the fact that we are trying to break down the
silos within the department and get related areas of the department working in
teams across divisions; so increasingly we have measures that span two or three
divisions in the department.[7]
1.14 In relation to
the FaCS portfolio, the Secretary, Dr Rosalky
explained that:
While the documentation is under an outcomes basis, under the
accruals - and that is what these expenditures lead to in the different
outcomes we are pursuing, be it families or communities - there are often
identifiable processes and decisions of government such as the Stronger
Families and Communities Strategy that, by their very nature, straddle some of
those outcomes.[8]
1.15 In order to
overcome the uncertainty as to which Outcome questions should be asked, and to
facilitate the attendance of Departmental officers, the Committee suggested
that prior to the next round of estimates hearings Departments provide the
Committee with guidance as to which Outcome questions on the major issues
should be directed.[9] This proposal received support from both
portfolios[10] which will hopefully
expedite future proceedings.
1.16 Difficulties were
encountered by one Senator when comparing previous years’ figures with the
current year, particularly when it was found necessary to consult the
Departmental Annual Report and other budget documents as well as the PBS.[11] It was also suggested that
cross-referencing by page number would be more useful than a ‘see also’ type of
cross-reference.[12]
1.17 Another Senator expressed
some difficulties with the format of the PBS because ‘there is no actual line
item to identify how much is estimated or how much is budgeted to be spent in
this financial year’.[13]
Issues
1.18 The Committee discussed a range of issues
with both portfolio departments during the course of the hearings. There was
considerable discussion with Health and Aged Care officers on aged care
matters, particularly with regard to the publishing of review audits.[14] Pharmaceutical issues were also
discussed in some detail.[15]
1.19 During its examination of the Family and
Community Services portfolio, the Committee discussed with Centrelink the
Auditor-General’s report into the assessment of new claims for the age pension
and Centrelink’s response to the report.[16]
An informative discussion also took place with the Director of the Australian
Institute of Family Studies regarding the Institute’s activities, particularly
as the Melbourne-based agency had not been required to attend estimates
hearings for some time.[17] These, and a
number of important administrative and process issues raised during the
hearings, are detailed in the Hansard
transcripts of evidence.
Senator Sue Knowles
Chairman
June
2001
Attachment A
The Secretary
Senate Community Affairs Legislation Committee
Parliament House
ADDITIONAL ESTIMATES HEARINGS - 20 FEBRUARY
2000
RESPONSES TO QUESTIONS ON NOTICE - IT
OUSOURCING
I am enclosing the portfolio’s responses to IT Outsourcing
questions on notice from the Additional Estimates hearings held on 20 February
2001.
Please find attached responses to questions numbered 1 to 6
and number 22, directed to Centrelink; and questions numbered 81 to 87 directed
to FaCS. Responses to questions which
required an update on previously provided information have not been given a
number but are included with a reference to the Hansard transcript page.
We apologise for the delay in responding. The necessity to locate and review a
considerable amount of background material led to delays in our preparation of
responses. In addition, some of the
requested material is of a highly sensitive nature and guidance on conditions
of its release was required.
The Minister for Family and Community Services is
considering issues of legal privilege, privacy, and commercial confidentiality
and sensitivity around some of the requested material. Cabinet confidentiality is also an issue with
respect to some material. As a
consequence, some answers have not been provided with this letter.
Yours sincerely
[signed]
Andrew Herscovitch
Assistant Secretary
Ministerial & Communications Branch
25 May 2001
Attachment B
30 May 2001
Senator Chris Evans
The Senate
Parliament House
CANBERRA ACT 2600
Dear Senator Evans
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
-
ANSWERS TO QUESTIONS ON NOTICE
I have been asked to comment on the letter dated 25 May 2001
from the Assistant Secretary, Ministerial and Communications Branch, of the
Department of Family and Community Services, concerning responses to questions
on notice about IT outsourcing.
The last paragraph of this letter states:
The Minister for Family and Community Services is
considering issues of legal privilege, privacy and commercial confidentiality
and sensitivity around some of the requested material. Cabinet confidentiality
is also an issue with respect to some material. As a consequence, some answers
have not been provided with this letter.
Presumably this paragraph means that the minister is
considering whether a claim of public interest immunity should be raised in
relation to some of the material required by the questions. The language of the
paragraph suggests grounds on which public interest immunity claims might be
raised. It also suggests that the department is under a common misconception
about claims of public interest immunity. That misconception is that material
maybe withheld from a parliamentary committee simply on the basis that it is
“confidential”. The recent report of the Auditor-General has again sought to
dispel this misconception:
The fact that particular information is
confidential, for example, because it relates to the commercial activities of a
person or body with which the Executive Government is contracting, does not, by
itself, provide grounds for resisting disclosure on the basis of public
interest immunity. (The Use of
Confidentiality Provisions in Commonwealth Contracts, paragraph 1.31)
Before the consideration referred to in the letter proceeds
any further, it might be advantageous to remind the department of the
appropriate scope of the grounds which are suggested in the letter. The letter
appears to refer to the following grounds:
- “legal privilege” The rule about
admissibility of evidence in courts which the courts recognise under the
name of “legal professional privilege” has never been accepted as a ground
for withholding information from a parliamentary committee. Legal advice
to government is frequently disclosed. The only recognised basis on which
it may be withheld in a parliamentary forum is that its disclosure would
prejudice the positions of litigants, including the Commonwealth, in legal
proceedings.
- “privacy” A recognised ground for not
disclosing information in a parliamentary forum is that the disclosure of
the information would unreasonably invade the privacy of individuals. In
most instances where information is required by parliamentary committees,
however, this problem is easily avoided by not identifying the individuals
to whom the required information relates.
- “commercial confidentiality” As the
Auditor-General’s report has recently reminded us, the mere fact that
information relates to commercial transactions or is covered by a
confidentiality clause in a contract does not provide a ground for
non-disclosure in a parliamentary forum. The recognised ground is that
disclosure of the information would damage the commercial interests of
traders, including the Commonwealth, engaged in transactions. A department
must be able to demonstrate a reasonable apprehension of damage to
commercial interests before raising this ground for a public interest
immunity claim.
- “sensitivity” I do not know what this
term means. It appears to be used as a catch-all phrase in the public
service when no other ground for withholding information will stand up.
There is no ground for a public interest immunity claim known as
“sensitivity”.
- “Cabinet confidentiality” There is a
misunderstanding in the public service that anything remotely connected
with cabinet can be withheld. The recognised ground for a public interest
immunity claim is that disclosure of particular information would reveal
the deliberations of cabinet and thereby imperil the ability of cabinet to
deliberate freely while preserving collective ministerial responsibility.
This is how the ground has been expounded by the courts in several recent
cases. A department cannot put a “Cabinet” sticker on any document and
then claim cabinet confidentiality for it.
Perhaps the
department should be reminded of the foregoing matters before it gets to the
stage of recommending inflated or unrecognised grounds for public interest
immunity claims.
Please let me know if I can be of any further assistance in
relation to this matter.
Yours sincerely
[signed]
(Harry Evans)