: Freedom of information, privacy and government information policy

Freedom of information, privacy and government information policy

Katie Miller

It’s separation of powers 101 — Parliament makes laws and passes budgets; the Executive administers laws. If the Executive government doesn’t like the operation of a law, it seeks a change from Parliament. Simple, right? Not quite, when it comes to the Office of the Australian Information Commissioner (‘OAIC’).

The OAIC was created by the Rudd government in 2010 and brought together freedom of information, privacy and government information policy. The OAIC consists of three commissioners — the Freedom of Information (‘FOI’) Commissioner, the Privacy Commissioner and the Information Commissioner.

Four years later, and faced with a ‘budget emergency’, the Abbott government sought to reduce spending on FOI and privacy by introducing the Freedom of Information Amendment (New Arrangements) Bill 2014 to abolish the OAIC and distribute its functions between the Australian Human Rights Commission, the Administrative Appeals Tribunal, the Ombudsman and the Attorney-General’s Department.

In anticipation of the Bill passing, the Abbott government reduced the funding for the OAIC — from a high point of $17.7m in 2012–13 to $12m in the most recent budget. The fall in budget has occurred at a time of increasing workload — in some areas, the workload has almost tripled.

The Bill passed the House of Representatives and was introduced to the Senate, where it remains to this day. Labor and the Greens do not agree with the government that abolishing the OAIC and redistributing its functions will save money or, as claimed in the Second Reading Speech, that it will ‘make it easier for applicants to exercise their rights under privacy and FOI legislation’.

So that means business as usual for the OAIC, right? Again, not quite.

Working in an organisation slated for abolition is difficult at the best of times. It’s even harder when funding is reduced, and harder again when the commissioners are appointed to other roles. The FOI Commissioner, Dr James Popple, is now at the Administrative Appeals Tribunal and the Australian Information Commissioner, Professor John McMillan, is now the Acting NSW Ombudsman.

The work of three commissioners is now being done by one, Timothy Pilgrim — and he’s doing it in an acting capacity for three months only.

There’s only so much one commissioner can do — and so some of the OAIC’s functions have been transferred to other agencies, including the AAT and the Ombudsman.

But hang on — isn’t that the purpose of the Bill that remains stalled in the Senate?

And therein lies the rub with the OAIC and the government’s treatment of it. Although the OAIC has not been abolished, the government is acting as though it has been. By cutting funding and failing to replace departing commissioners, the government has brought about a transfer of functions that its Bill was supposed to achieve.

Separation of powers require the Executive to administer the laws as passed by Parliament — not the laws the government wishes it would pass.

KATIE MILLER is President of the Law Institute of Victoria.

(2015) 40(3) AltLJ 209
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