Government denies starving FOI watchdog of funds even though he works from home

Markus Mannheim

Public service editor

A senior public servant has defended the legality of stripping the information watchdog of funds after the Abbott government was unable to pass laws to abolish it.

The Office of the Australian Information Commissioner, which oversees freedom of information and privacy law, closed its Canberra workplace late last year because its funding was scheduled to run out on December 31, 2014.

However, the Abbott government failed to convince the Senate’s crossbench to support its plan, leaving Information Commissioner John McMillan with ongoing legal duties but few staff and no office.

In an article published this week, three former Supreme Court judges questioned the constitutionality of the decision, saying the government had bypassed Parliament and “achieved the same result by the power of the purse”.

Tim Smith, David Harper and Stephen Charles wrote: “The result is deeply disturbing. Greater secrecy has been reintroduced. Government is now less transparent and accountable.”

On Thursday, Labor senator Jacinta Collins asked Professor McMillan at an estimates hearing: “You’re still working from your kitchen?”

However, the commissioner said his home office was adequate and he also regularly worked from Sydney.

He said this month’s budget had funded a dozen staff – about half the former FOI workforce – to help him review contested decisions over the next year.

He had a backlog of about 200 reviews to complete but was reducing that by about 10 a month while also coping with new requests.

“It’s an awkward arrangement, there’s a reduction in the number of staff, there’s certainly less that we can do,” Professor McMillan said, but added he was confident he was carrying out his duties.

The constitution requires the government to give effect to laws by funding the work needed to carry them out. Independent senator Nick Xenophon asked on Thursday whether the government was unlawfully starving Professor McMillan of resources.

However, senior Attorney-General’s Department executive Matt Minogue denied there had been an attempt to “dissolve the office by lack of resources”.

“Monies were re-appropriated back to the Office to the Australian Information Commissioner as a result of the fact that the bill didn’t pass Parliament”, Mr Minogue said.

“So the government, through this budget, is respecting the fact that the bill didn’t pass and respects the fact that the office continues.”

Senator Xenophon interjected, saying the commissioner was forced to work from home, but Mr Minogue replied: “How the [office] structures itself is to some extent a matter for it.”

Mr Minogue also pointed out the government had transferred many functions formerly carried out by Professor McMillan’s staff to other agencies, such as the Commonwealth Ombudsman, the Attorney-General’s Department and the Administrative Appeals Tribunal.

The government still intends to abolish the office to “remove unnecessary layers of bureaucracy and deliver an improved and simplified merits review system”.

However, Labor, the Greens and reportedly most of the crossbench prefer to keep a separate, independent FOI umpire.

Professor McMillan also warned on Thursday that public servants could use FOI delays to undermine government transparency.

“There is certainly room for improvement in more astute decision-making by agencies,” he told the Senate.

“Whether that reflects a considered view to game the system and claim an exemption [from disclosure] and let time run, I have no direct evidence of that.”

Under the government’s preferred model, people who challenge FOI decisions must first pay a $861 fee to the AAT. The Information Commissioner’s office currently provides reviews free of charge.