A letter from Senator George Brandis (Attorney General) concerning the present status and future of the Office of the Australian Information Commissioner was received by ART on the 27th of May responding to its letter to Sen. Brandis of 6th April 2015 . His letter confirms the Government’s continuing determination to abolish the OAIC and the continuation (for one year only) of significantly reduced funding which reflects the significant changes that have occurred to the OAIC statutory operations over the last 12 months. It has ceased to operate as the independent statutory body to monitor and supervise the FOI system and advise government . That role was a significant and central aspect of the 2010 reforms and has been passed to the Attorney-General. It also has ceased to discharge its statutory function of considering complaints about the handling of FOI applications or referring them to the Ombudsman. They are now referred automatically to the Ombudsman. It also now triages reviews of refusals of FOI applications, resolving or deciding some, directing others to the AAT or discontinuing them (following which the person seeking the review can apply to the AAT).
The government handling of the matter appears to have largely returned the FOI system to the pre-2010 failed system. Does the Government’s handling of the matter also give rise to a fundamental constitutional question; namely, when a Government is faced with the reality that the Senate is unwilling to pass the Bill it requires to abolish a statutory body, does it have the right and power under our Constitution to achieve that result by using its Executive powers? ( For details, see “Abbott government skirts Parliament and muzzles the FOI watchdog“)
In the meantime the Information Commissioner works from home in Canberra every second week.. His term expires at the end of October. The Attorney General states in his letter that if the Government’s Bill has not been passed by then, the Government will “ ensure that arrangements are in place for the continued exercise of all of the Information Commissioner’s functions.” He does not identify the likely options or mention the possible appointment of a replacement Information Commissioner as one of them. In light of the Government’s failure to replace OAIC’s Freedom of Information Commissioner on 1 January 2015, that may be a significant omission.
Readers interested in a history of changes to the office since the advent of the Abbott government can find extra information here by clicking on the Home Page category, “Office of the Australian Information Commissioner“.
A PDF of the original letter received from Sen Brandis (address redacted) is available here. The content of the letter can be read below.
Dear Mr Smith
Thank you for your letters received 7 April and 23 April 2015 concerning the new arrangements for privacy and FOI regulation.
In the 2014-15 Budget, the Australian Government announced arrangements for streamlining the regulation of privacy and freedom of information (FOI) under the measure Smaller Government Privacy and Freedom of Information functions- new arrangements. The Australian Government remains committed to this measure, which is consistent with its policy to reduce the size of government and streamline the external review system to make it more efficient, less complicated and more effective.
In accordance with the measure the Government introduced the Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill). As you are aware, the Bill proposes to abolish the Office of the Australian Information Commissioner (OAIC) and transfer its functions to other agencies. This includes the Administrative Appeals Tribunal (AAT) holding sole responsibility for external merits review of FOI decisions, following mandatory internal review for all decisions other than those made by a Minister or agency head. Removing the additional layer of merits review by the OAIC will streamline the FOI review process and align with other merits review processes across the Australian Government.
The Bill also provides for the Commonwealth Ombudsman to be responsible for investigating complaints about FOI processing for agencies, for the Office of the Privacy Commissioner to be established as an independent statutory office within the Australian Human Rights Commission (AHRC), and for my department to be responsible for issuing FOI guidelines and annual reporting on FOI statistics.
The new arrangements were to commence on 1 January 2015. However, as the Bill is still before the Parliament, the OAIC remains responsible for privacy and FOI regulation and continues to exercise its functions under both the Privacy Act 1988 and the Freedom of Information Act 1982 (FOI Act).
In December 2014, the OAIC closed its Canberra office. The Sydney office of the OAIC, with approximately 65 staff, continues to operate and is undertaking both privacy and essential FOI functions. I understand that the Australian Information Commissioner, Professor John McMillan, continues to work alternately from the Sydney office of the OAIC and from a home based office in Canberra with office assistance and IT support.
Resources are being re-appropriated to the OAIC for the remainder of 2014-15 to allow it to continue the exercise of privacy and FOI functions, and the OAIC will also receive an appropriation in 2015-16 for these functions.
The OAIC has implemented a streamlined approach for applications for merits review of FOI decisions. Straightforward matters are being finalised by the OAIC, and where appropriate more complex or voluminous matters are being referred to the AAT if the Information Commissioner decides that it is desirable in the interests of the administration of the FOI Act that the matter be reviewed instead by the AAT. In such an event, an applicant may apply to the AAT in accordance with regular AAT procedures. All new FOI complaints are being referred to the Ombudsman.
The appointment of the Information Commissioner ends at the end of October 2015. If the Bill has not passed by then, the Government will ensure that arrangements are in place for the continued exercise of all of the Information Commissioner functions. The former Freedom of Information Commissioner, Dr James Popple, was appointed as a full-time Senior Member of the AAT on 1 January 2015. Dr Popple has been appointed until 31 December 2017.
Thank you again for writing on this matter.
George Brandis