Key case No. 1 and IPEA goes softly-softly on Joyce, Campion travel expenses

By Stephen Easton

Wednesday March 21, 2018

The Independent Parliamentary Expenses Authority is treading carefully around its first high-profile case: whether former Nationals leader Barnaby Joyce or former ministerial staffer Vikki Campion misused their entitlements.

The new agency was presented by Prime Minister Malcolm Turnbull last year as a way to help restore public trust in parliamentarians. Functionally, however, it is more like a confidential advisory service designed to help them avoid expense scandals.

The first big demonstration of how IPEA will discharge its duties will be what, if anything, it decides to publish in relation to an audit of travel expenses claimed by Joyce and Campion.

A report could surely clear the air and publicly draw a line under the simmering political issue, but IPEA told The Mandarin it hasn’t decided yet whether it will publish anything, and it doesn’t have to either:

“IPEA will determine whether to publish audit reports on a case-by-case basis having regard to a range of factors including the extent to which the performance of IPEA’s functions is assisted by publication, the public interest served by publishing and applicable legal considerations.”

This meant a subsequent question about what exactly it would publish — a summary or a full report — was also left unanswered.

In a recent Senate estimates appearance, IPEA was not asked whether the audit results would be made public but it was asked when it expected to complete the process. Chief executive Annwyn Godwin talked around the question in the hearing, and IPEA told The Mandarin it doesn’t know the answer:

“The audit is ongoing and IPEA is unable to provide a timeframe for its completion at this stage.”

Turnbull claimed IPEA was based on an ostensibly similar entity in the United Kingdom, but it is “quite a different beast” in reality — with weaker powers and less independence — as the inaugural head of the UK body explained in a fascinating public lecture last year. While its UK counterpart found itself in a highly combative relationship with the House of Commons, IPEA is more likely to suffer the opposite problem: being labelled an ineffectual toothless tiger.

Fairfax FOI refusal 

The authority’s reported reasons for refusing a newspaper’s freedom-of-information request, for Campion’s travel records, only adds to the impression that keeping a lid on public debate is one of its chief concerns.

According The Northern Daily Leader, the Tamworth newspaper which made the FOI request, IPEA argued the separate release could undermine the independence and fairness of the ongoing audit.

Fairfax reports one of the grounds was that releasing the records might harm procedural fairness, since audit subjects should be allowed a chance to explain any “gaps in available information” and respond to any adverse findings that may arise, before the information goes public.

It appears that IPEA is relying on the conditional exemption in S47E of the federal Freedom of Information Act related to specific agency operations. This says an FOI request can be denied to protect “tests, examinations or audits” — either their procedures and methods, or the attainment of their objects — among other things.

Godwin also said in Senate estimates that one reason for defining a process as an “audit” was that this allowed IPEA “to give the parties involved, or the party, procedural fairness” in the event that it does make adverse findings.

Conditional exemptions only apply if the agency can argue that the disclosure would be against the public interest, on balance, and the FOI Act clearly sets out factors than can and cannot be taken into account.

A need to protect procedural fairness is a legitimate argument, but some of its other reported arguments as to why the release would undermine the audit — a perceived risk that the information might be “misinterpreted and misrepresented” and a fear of “public and political pressure” — appear to be legally “irrelevant” to FOI decisions under the act.

Concern that “access to the document could result in any person misinterpreting or misunderstanding the document” is explicitly ruled out by the act as a reason to reject an FOI request, and so is the possibility that “confusion or unnecessary debate” could result.

The authority reportedly argued that releasing Campion’s records might “raise public expectations” about what the audit should conclude.

“This then has the potential to lead to public and political pressure, undermine IPEA’s independence and ultimately render the audit worthless if the findings fail to meet public expectations,” the quoted decision continued.

These concerns about managing public expectations of the upcoming audit findings suggest IPEA does plan to publish those findings, which might provide the same information as the records requested by the Tamworth newspaper. Otherwise — if the public never see the audit report — why would their expectations matter?

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