OAIC – Abbott government skirts Parliament and muzzles the FOI watchdog

Tim Smith, David Harper, Stephen Charles

During the past six months, a serious drama has been unfolding in the Australian body politic. Although it has human, governmental, political, legal, and constitutional dimensions, it has somehow flown under the radar of us all. This week’s Senate budget estimates hearings provide an opportunity to rectify a situation that cannot be allowed to continue.

The stage on which the drama is set is familiar. It concerns the Commonwealth’s freedom-of-information regime, a crucial element in our flawed federal integrity system. Important reforms addressing some of those flaws had in 2010 been initiated by the then special minister of state, John Faulkner. He sponsored legislation that created an independent statutory body, the Office of the Australian Information Commissioner, to not only manage access to information but also change the culture in the public sector and give independent advice to the government. In addition, the legislation provided that, at no charge to an applicant, the Information Commissioner would independently review FOI applications that had been refused by the agency to which they had been made.

The government has ignored the law but won a tactical victory. Expedience has again trumped principle.

Notwithstanding teething problems and a lack of adequate resources, the office’s operations received a positive assessment by the Hawke review in 2013. That review, nevertheless, recommended that a more detailed review take place. Instead, in the following year, the new Abbott government began a return journey to a dismal past. In the eyes of the government, FOI had advanced too far. It therefore set out to abolish the office’s FOI roles and, effectively, to return to the old, deeply flawed FOI system. The excuse was that the Faulkner reforms required “streamlining”. They didn’t. They were also said to be too expensive. They weren’t: a mere $2.55 million a year of very well-spent Commonwealth funds would be saved. Equally important, the Coalition, by these proposals, breached its election commitment to “restore accountability and improve transparency measures to be more accountable to you”.

The government’s intentions became clear in May last year. The 2014-15 budget provided funding for the office only until December 31, 2014. Consistently with this, the government also introduced a bill to abolish the office and, with it, the enlightened Faulkner FOI regime. The bill was passed by the House of Representatives in late October 2014. It was introduced into the Senate on October 2. There it has languished, apparently abandoned by a government content to ignore its fundamental responsibility to execute the law. The Coalition’s unloved Office of the Australian Information Commissioner remains in existence; but, without funds, that office cannot give effect to the responsibilities imposed upon it by the very legislation the government has not persuaded the Senate to repeal. The unrepealed legislation remains on the books. The office therefore remains under an obligation to do that which the unrepealed legislation requires it to do. But the government has denied it funds, without which the office is powerless to do its duty.

The Information Commissioner, Professor John McMillan, remains at his post. That now happens to be at his home. It is farcical, but it is true: the government will not give him the space to work elsewhere. The Canberra office has closed altogether, although a few staff remain in Sydney working on privacy issues. Having failed to pass the legislative amendments that would have effected its purpose, the government has achieved the same result by the power of the purse. It has ignored the law, but won a tactical victory. Expedience has again trumped principle.

The result is deeply disturbing. Greater secrecy has been reintroduced. Government is now less transparent and accountable. More particularly, its fiduciary duty to us as our public trustee has been breached. That duty is to place the public interest first. Where now is the election commitment to increased transparency and accountability? Where now is last February’s promise that “good government” has begun?

And what of its obligations under our constitution? The constitution (section 61) says the executive government’s power extends to the “execution and maintenance of this constitution and of the laws of the Commonwealth”. Accepting that “execution” means “giving effect to”, what has in fact occurred is the opposite of “giving effect to” and of maintaining the laws of the Commonwealth. Where does the executive government claim to get the constitutional power to not only change a Commonwealth law but also do so in such a way as to effectively repeal it when it has no power to legislate? Under our constitution, that power rests with the Parliament. Accepting that proposition, on what basis may the actions of the executive government be said to have given effect to and maintained the constitution?

In addition, can the government claim that its conduct otherwise maintains the constitution? Does its conduct involve both a denial that it, the executive branch of government, is subject to the laws made by the Parliament and also a claim that it can act to alter the operation of the laws of the Parliament without its consent. If so, does that constitute a failure to honour and so maintain two fundamental principles that underpin our constitution and our democracy – the rule of law and the separation of powers?

These are all important questions that need to be asked and answered.

Let us hope that the Senate budget estimates this week will do so by shedding further light on the detail of what has occurred. Let us also hope it will reveal that the government has acted on a valid legal basis and what that is. Finally, let us hope that the government will also look afresh at the matter as public trustees should and give priority to the public interest by adequately funding the 2010 statutory system. For that will help to promote open government, help to deliver “good government”, reduce the risk of corruption and assist economic growth.

(Tim Smith, David Harper and Stephen Charles are former justices of the Supreme Court of Victoria.)