With the remaining sections of the Parliamentary Budget Officer Act 2010 (NSW) (PBO Act) coming into effect on 25 January 2011, all provisions of the PBO Act are now in force.
In the lead-up to the NSW State election in March, NSW Government agencies need to be aware of how the PBO Act will affect their responsibilities - in particular, requests from the PBO for information regarding policy-related costings, and when and how agencies will be required to provide information.
Former NSW Auditor General, Mr Tony Harris, is currently acting in the role of PBO. The PBO is an independent officer of the NSW Parliament.
Functions of the Parliamentary Budget Officer
The functions of the PBO fall into two main categories:
- Functions regarding the preparation of election policy costings, and
- Functions relating to the preparation of costings for proposed policies of a member of Parliament.
The PBO Act also requires the PBO to provide analysis and technical advice on "financial, fiscal and economic matters (including in relation to the costing of proposals included in the State budget)".
Key obligations of NSW Government agencies
Section 16(1) of the PBO Act provides that the PBO may, at any time:
The PBO Act requires the head of the agency concerned to respond to such a request within 10 business days, or within a period otherwise agreed with the PBO.
The head of the agency is not required to provide information which would not be required to be disclosed under the Government Information (Public Access) Act 2009 (GIPA Act). The agency head must advise the PBO of the reasons for declining to provide any information.
It should be noted section 16(4) of the PBO Act imposes an obligation upon agency heads not to disclose any information or document provided to them for the purposes of a request under section 16. The only exception is disclosure to 'a member of staff of the agency'.
Disclosure contrary to this provision is a criminal offence carrying a maximum penalty of 50 penalty units ($5,500).
'Pre-election period'
Parliamentary leaders may request the PBO to prepare costings of their election policies.
Requests for election policy costings must be made during the 'pre-election period'. For the NSW general election scheduled for 26 March 2011, the pre-election period commenced on 25 January 2011.
Parliamentary leaders may publicly release election policy costings they have previously requested. The PBO is required to publicly release an election policy costing when the Parliamentary leader who requested the costing notifies the PBO that the policy has been announced.
Relationship between the PBO Act and other disclosure requirements
The commencement of the PBO Act, especially the section 16(4) prohibition on the disclosure of certain information or documents, raises issues for Government agencies regarding other disclosure obligations.
GIPA Act
What is the position where an application is made to the agency under the GIPA Act for information which is currently subject to the PBO Act prohibition?
Section 11 of the GIPA Act provides that the Act overrides a provision of any other Act which prohibits the disclosure of information, other than a provision listed in Schedule 1. Schedule 1 of the GIPA Act now includes section 17 of the PBO Act. However, section 17 of the PBO Act applies only to the PBO itself. It does not apply to agencies.
The GIPA Act provides a legally enforceable right of access to information unless there is an 'overriding public interest against disclosure'. Only matters listed in the table in section 14 of the GIPA Act may be considered in deciding whether there is such an overriding public interest.
Notably, the table includes a public interest consideration against disclosure of information which, if disclosed, could reasonably be expected to contravene a provision of any other Act prohibiting the disclosure. This consideration applies to all types of disclosure under the GIPA Act.
It is therefore open to an agency to decide, on balance, that there may be an overriding public interest against disclosure based upon the prohibition in section 16(4) of the PBO Act.
There may also be other matters listed in the section 14 table which are relevant and can be applied in the particular circumstances.
Other disclosure requirements
There are a range of other obligations on Government agencies to disclose information. These include obligations to respond to Parliamentary Calls for Papers, Parliamentary inquiries, requests and directions from investigative bodies (such as the Ombudsman and Independent Commission Against Corruption), subpoenas and discovery.
There is obvious potential for the prohibition in the PBO Act to come into conflict with these requirements to disclose information. The interaction of each instrument with the PBO Act will require careful consideration.
It should be noted the offence created under section 16(4) provides no exception for disclosure required under other instruments.
Further, the only exception to the prohibition is disclosure to a 'member of staff of the agency'. The meaning of this term is not the same for all agencies in the NSW Government context − some agencies directly employ staff, some staff are employed in a Division of the Government Service, some are in the Senior Executive Service or Chief Executive Service, and some are members of the Public Service (under the Public Sector Employment and Management Act 2002 (NSW)).
Whether an officer constitutes a 'member of staff' under the PBO Act will need to be carefully considered by each Government agency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
