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Legal and Constitutional Affairs Legislation Committee
(Senate-Monday, 10 November 2014)
Senator JACINTA COLLINS
CHAIR (Senator Ian Macdonald)
Senator JACINTA COLLINS
Senator JACINTA COLLINS
Senator JACINTA COLLINS
ACTING CHAIR (Senator Jacinta Collins)
Senator JACINTA COLLINS
- Senator JACINTA COLLINS
Content WindowLegal and Constitutional Affairs Legislation Committee - 10/11/2014
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FARTHING, Ms Sophie, Senior Policy Officer, Public Interest Advocacy Centre
SANTOW, Mr Edward, Chief Executive Officer, Public Interest Advocacy Centre
TIMMINS, Mr Peter, Private capacity
CHAIR: The committee's proceedings today follow the program. These are public proceedings being broadcast live via the web. Witnesses should be aware that they are protected by parliamentary privilege; this is a meeting of the parliament. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to the committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence. If for any reason there is something you would prefer to say in camera please let the committee know and we can talk about that at the time. If you object to answering a question you have to indicate the grounds on which you object.
I thank you for coming along. We have Mr Timmins's private submission as submission No. 9. The Open Australia Foundation submission we have recorded as submission No. 11 and the Public Interest Advocacy Centre submission is numbered as No. 15. If you want to make any amendments or additions to your written information now is the time to do that. Alternatively, I ask you to make a brief opening statement and then the committee will ask you some questions.
Mr Timmins : I have a background in this area that goes back quite a long time but I made this as a personal submission. The essence of that submission is that the case has not been made for disbanding the Office of the Australian Information Commissioner. The information that has been put on the table in the budget papers, in a media release by the Attorney-General on budget night, in the second reading speeches in the House and now in the Senate, all revolve around the idea that there is a need to do something about the merits review system for freedom of information decisions. There are also references to the need to reduce the size of government. There are references to savings of $10 million over four years. But the essential argument is that the FOI review system that has been in place since 2010 is overly complex and that that system is producing unacceptable delays in the Office of the Australian Information Commissioner. However, that suggests there is a need to do something about the review system.
However, Dr Allan Hawke, who undertook a statutory review of the Freedom of Information Act and the Australian Information Commissioner Act, and completed his report, which the successive governments have had since July last year, reached the conclusion that the OAIC was performing well and that it was too early to make a judgement about whether the so-called complex review system was working well or not.
Dr Hawke's main recommendation in his report was that there should be a comprehensive review of the Freedom of Information Act and the Australian Information Commissioner Act, which he did not undertake because of the terms of reference that were in the statute and because of a limitation of six months. So he did not undertake the comprehensive review. He reached a conclusion about the OAIC and he reached a conclusion about the merits review system. On the latter it was that it was too early to say.
However, what we have before us is a proposal that the office be disbanded. In putting to you that the case has not been made for that, it is not just a view that I hold or that the Open Australia Foundation holds; in the five days that people have had notice of this inquiry there have been over 20 submissions put before you that have been published. They have come from Transparency International Australia; the Accountability Round Table; the Australian Privacy Foundation; the Public Interest Advocacy Centre; the Council for Civil Liberties; Liberty Victoria; the Queensland Integrity Commissioner; respected individuals in this field; Professor Moira Paterson, who has written the book, Freedom of Information and Privacy in Australia:Government and information access in the modern state; academics at the University of Adelaide, Professor Bruce Baer Arnold at the University of Canberra, and so on.
So just in my introductory remarks, I would like to bring to your attention that there are significant ramifications from disbanding this office. The main one is that we lose the champion and advocate for open government; in disbanding the functions, we are not replacing that function. The Law Reform Commission, as long ago as 1995, identified the absence of an advocate champion independent monitor as a crucial element if we were going to make freedom of information in Australia work. That was not addressed until 2010. But to disband this office and not have a champion advocate independent monitor for freedom of information is a giant step backwards. I would be happy to elaborate.
My submission tries to bring to attention the problems that arise from disbanding the office, from removing synergies—that is, just a few years ago FOI, privacy and broader information management within government were seen to be important functions that would have some synergy. That goes. I also think the argument we are going to save $10 million over four years has some large question marks about it, to put it mildly. Some of the reasons I have raised in my submission include: the cost to individuals; the cost to the AAT; the cost to agencies for mandatory internal reviews, which has not been costed anywhere; and, based on looking at the comparative costs of nonlitigious resolution of matters by the Information Commissioner compared to the AAT, and I would have to say the AAT is lawyers territory in many respects, the high costs for everyone involved if going down this path. I leave my introductory remarks there.
I am also appearing for the OpenAustralia Foundation. They have, for the past two years, provided a public website called Right To Know. There are 800 registered users of that who have made FOI applications under the Freedom of Information Act, and they have attached to their submission an appendix of some 17,000 pages, which is a unique collection of information about the way Australian government agencies handle FOI requests. Senator, if I had some hair, it would stand on end to read some of the gaming of the system that has occurred, which is on public display. I think their submission is, very strongly, that in light of the experience of two years on publicly available information, we still have a long way to go in terms of the journey towards more open, transparent and accountable government. And to lose the independent monitor, advocate and champion of the act at this stage of the game is a giant step backwards.
Mr Santow : The Public Interest Advocacy Centre is a non-profit law and policy organisation. We exist to help disadvantaged people, especially in relation to their legal problems. For many years we have helped disadvantaged people access government held information through the freedom of information, or FOI, process. Our submission and our evidence to this inquiry is based primarily on our experience helping those disadvantaged clients with FOI.
The government in its second reading speech said that the aim of this bill was to make it:
… easier for applicants to exercise their rights under privacy and FOI legislation.
We would support that aim; however, we are very concerned that this bill, if passed, will in fact harm Australia's FOI system and the public's right to know. The broader context is that the Australian Constitution establishes a system of representative democracy, establishes it in a very, very broad structure. There is very little legislation that actually gives effect to that constitutional system of representative democracy. The FOI legislation is one of those very few statutes.
We have two main concerns with the bill. The first is substantive. By abolishing the office of the Australian Information Commissioner Australians will lose the simplest and cheapest form of external merits review in respect of FOI decisions. We will also lose the strongest source of expertise within government. That will have flow-on effects for FOI decision making at the agency or departmental level.
Our second concern with this bill is, I guess, procedural. There has been no public case made in any detail at all for what can only be described as radical changes to our FOI law. Indeed, that FOI law was overhauled as recently as 2010. Very little public consultation taken place in respect of the bills proposals and the government is yet to respond to the recommendations in the statutory review that took place last year under Dr Allan Hawke. If the government is minded to make major changes to FOI law and practice we would urge the government first to undertake a full public consultation that also takes into account the recommendations of the many reviews since the Australian Law Reform Commission's review in 1995.
However, if contrary to our advice, the parliament is minded to press ahead with this bill, PIAC would urge that the bill be amended in a number of important ways and we have sought to set out some of those most important amendments in our submission. I note they include ensuring that fees, charges and costs are minimised for members of the public seeking to access information under FOI, especially disadvantaged people and those using FOI to further the public interest. Secondly, that the bill be amended so that an independent statutory body be given power to exempt documents from being produced by FOI rather than giving that power to the Attorney-General. Thirdly, that a full reappraisal of the FOI act exemptions be undertaken. Thank you.
CHAIR: Thank you. Were fees to be abolished and the other proposal you made, would not that a take away the $10 million saving that is proposed, which I suspect is what this is all about?
Senator RHIANNON: I am glad you said that. It is really a budget bill, Chair, is it? He nodded.
Senator JACINTA COLLINS: I don't think there is any question that it is a budget measure.
Senator RHIANNON: Yes, but it is good to get it on the record.
CHAIR: That is a personal opinion, but I guess that is what it is about.
Mr Santow : If I can answer that question obliquely, last year, according to the OAIC, the FOI regime in Australia cost government a bit over $41 million. Less than one per cent of that money was recovered through fees and charges and costs and so on. Those fees and charges, therefore, could not possibly be about recouping that.
CHAIR: Isn't it proposed that a lot of the things that currently go to the commission for free will now go to the AAT with a bill of 900 bucks or something?
Mr Timmins : Page 61.
Mr Santow : Our view—
CHAIR: People who want to pursue that will pay in the money, and I guess that is some of the $10 million.
Mr Santow : Quite possibly. Our view, though, is that it risks falling between two stools. In fact there is a high likelihood that it will fall between two stools. On the one hand it will not go very far in recouping the government's costs of the FOI system. On the other hand it will deter many citizens, especially disadvantaged citizens who have legitimate claim for government-held information from actually obtaining their documents and pursuing that information, which, as has always been said, is held on trust by the government for the people.
CHAIR: I suspect that government probably thinks the newspapers, who are probably the biggest users of FOI, can afford to pay.
Mr Timmins : You are very wrong on that, Senator.
CHAIR: Am I? Okay, tell me.
Mr Timmins : Of about 25,000 requests a year very few overall would be made by the media. We do not have the numbers. I do not think they are published. Most people who use this act are individuals. They are John and Mary Citizen, who are looking for access to information about their dealing with a government agency. This has been true for 30 years. Some of those, when they go along to the AAT and get a questionable decision from a government agency, some of them might not pay anything. Some of them might pay a reduced amount because there are concessions. On the other hand, those who are looking for information about the way government operates—this is at the highest pinnacle of our accountability system, which Mr Santow referred to—are the ones who are going to be paying $861. I make a few FOI applications and I can tell you that I probably do not qualify for any of these concessions. But it is $861 for starters.
On the second-last page of my submission I refer to some information that is in the Productivity Commission draft report on access to justice. We do not have that I am aware of any information on the cost of FOI cases in the AAT. But the AAT in a submission to that inquiry said:
Cost per case at the AAT has increased for both cases that proceed to a hearing and those that do not. Between 2004 and 2013 the average cost of finalisations without a hearing increased from $2000 to $3500, and those with hearings from $11 000 to $16 600 (2013 prices).
CHAIR: Whose data is it?
Mr Timmins : This is the AAT, in a submission to the Productivity Commission. But there is also information on the second-last page about the cost to agencies from running a case in the AAT. This information again may not be an exact picture about FOI—it is from Comcare about dealing with workplace compensation issues. They say that the cost for them is around $48,000, when a matter goes to a hearing. They think that for the opposing party—that is, John and Mary Citizen, who might be represented—costs might run at around $15,000 to $20,000.
Someone might be saving money out of this, but I am not quite sure it is the taxpayer, when you look at the costs involved in transferring all of this to a litigious type process rather than a non-litigious one. The OAIC review process usually does not involve a hearing and usually does not involve lawyers, and I would have thought that is a pretty good idea to try to resolve these things.
CHAIR: You have reminded me of something, which I will make a statement about when you have finished. What is the backlog of places? This is probably more a matter for the commission than for you.
Mr Timmins : It has come down. The commissioner's annual report, released in the last few weeks, talks of improvements in the holdup. I think I will leave the detail to the commissioner, but there has been an improvement.
CHAIR: That is appropriate.
Senator JACINTA COLLINS: You mentioned the attachments to the submission, which unfortunately we do not have in front of us. But I am on the righttoknow.org.au web site at the moment. Can you direct me to somewhere on the web site that would show me what the attachments to the submission were?
Mr Timmins : Apparently they have provided for the committee an attachment that includes all of the pages generated by all of those 700-odd applications in the last two years. They include the application, the backwards and forwards correspondence between agencies and the applicant, and, in many cases, the final decision and the documents released. I could take you through one of mine.
Senator JACINTA COLLINS: I am just curious. When you said for instance that it makes your hair stand on end I assume from that one could garner an impression of which departments you are suggesting are helpful, as opposed to those that are not.
Mr Timmins : Would you like me to name a couple that are not?
Senator JACINTA COLLINS: You are welcome to. You already have in terms of Attorney-Generals.
Mr Timmins : A-Gs is one of them and A-Gs is going to be the agency that serves the Attorney-General, who is the minister under this legislation who will provide guidance to government agencies. I have had experience in making applications to the Attorney-General's Department. One of the most notable was that in 2013 I sought access to the most recent work the department had undertaken on an Australian Law Reform Commission report delivered to the government in 2009. The Law Reform Commission report was called Secrecy laws and open government in Australia. Seeing that not a word had been said publicly about this report since it had been received, I made an application for the latest work the department had done. They found one document. At the time it was 12 months old. It was a briefing note to the then secretary. I was refused access on the grounds that it was a 'deliberative process' document.
The public interest considerations that weighed in favour of nondisclosure were things like 'disclosure will impact on the relationship between the department and the minister' and a range of other considerations that I, with a bit of experience, found very puzzling. After that decision I joined the queue at the Australian Information Commissioner and waited for a year. So 16 months had passed. When the commission finally got around to my application, the department changed its mind. It released the one and a half pages. The sun rose the next morning over Lake Burley Griffin. There was nothing in it of any great moment at all, except, 'Because of some of the issues about us publicly saying anything about this report, it might prove to be a bit embarrassing, so let's not say anything about it.' That is where things rest to this day. I think that was 16 months of gaming, quite frankly, and it worked. Sixteen months later, the document, which is dated 2012, is of no great public value, but I, a pesky inquirer, who happened to be on the Law Reform Commission advisory panel on the report, was a bit interested to see it. I had put a few hours into the work, and it still sits somewhere in the Attorney-General's Department.
Some of the public interest reasons were really just off the map.
CHAIR: To make a semi-flippant comment: next time, go and see your local senator and get them to raise it at estimates. They might have more luck than you had.
Mr Timmins : I do have occasional communication with some senators about estimates!
Senator RHIANNON: Or your local member. It would be interesting if he did it!
Mr Timmins : Yes, indeed.
Senator JACINTA COLLINS: Regarding Attorney-General's Department, I think comments from the former secretary back this up by indicating that the department's approach is to play hardball. Open Australia makes the point that they are not modelling best practice in this area. I think it would be useful for the committee to have some sense of what is international best practice.
Mr Timmins : It is a big subject.
Senator JACINTA COLLINS: It would be a helpful summary, I suspect, of all of the submissions we have received from a large number of organisations, as you have said.
Mr Timmins : In this area we are talking about review of decisions. The states provide interesting examples. Queensland, New South Wales, Victoria and Western Australia—and, to some degree Tasmania, where it is the ombudsman still, with an information commissioner type function—all have information commissioners and tribunals. None of them are thinking of abolishing the office. Victoria has just augmented the office. The government there passed legislation recently to provide two more assistant commissioners to the Freedom of Information Commissioner, to cope with the workload. There are 40 countries around the world that have information commissioners. Johan Lidberg of Monash University, who has put a submission in to you, is I guess our leading researcher in this field. He has been doing comparative FOI studies for 13 years.
But there are lots of things we could learn. If we were looking to improve the OAIC and the way the FOI system works, there are lots of options and ideas about that. We could learn from international experience and from the experience of the states. But we have chosen not to do so.
Mr Santow : FOI perhaps more than almost any area of government requires two things to make it work from within government. The first is appropriate expertise on behalf of the agency officers who deal with FOI applications. The second is a culture that values openness. To take us back to this bill, what we will lose with the abolition of the OAIC is a dedicated agency within government that can help and has been helping on both of those things. There is regrettably a wide variance within government in terms of cultural acceptance of FOI and also simply competence in dealing with FOI applications. Some of the most patient, important work that the OAIC has been doing has been to improve both of those things, and it would be very sad if we were to lose that.
Mr Timmins : In addition to the point just made, the other important thing about that function is that it is independent. What we are seeing is the independent body being removed and the responsibility for guidance going to the Attorney-General. With all due respect to the Attorney-General, I do not think he is independent. He is subject to the act, by the way. His department is subject to the act. In future, the role of guidance about the interpretation of the act goes from an independent officer with the important role which Mr Santow has referred to, to it no longer being in the hands of anyone independent.
Senator JACINTA COLLINS: Just as a final question and to satisfy my curiosity more than anything else, which department does it best?
Mr Timmins : I think your direct experience is wider than my recent experience. I think you would have a better angle than TOAF.
Mr Santow : We certainly do not have a comprehensive experience across government. So we are not—
Senator JACINTA COLLINS: I have had experience with DEEWR. They had issues over the competence of people handling matters; so I am familiar with that. I am just curious to know, from all of the data you have acquired to date, whether there is a stand out—
Mr Santow : I can certainly say that we have done a lot of work with the Department of Defence over the last 10 years. I am very pleased to say in terms of both culture and competence that the work of the Department of Defence has significantly improved over the last 10 years. That is a function, I think, of a change in culture and dedicated resources being put towards the disposition of applications.
Senator JACINTA COLLINS: So has their estimates performance, by the way.
Mr Timmins : My most positive experience was a freedom of information request to the Office of Australian Information Commissioner, where I asked for some documents about Australia's long stalled application to join the Open Government Partnership, an international initiative, that we are considering after three years. I asked if I could get access to some documents and they were happy to provide them under administrative access, without the need for a formal application. They gave me all the documents they held, which I thought was an excellent example to everyone else. It is not the same as my experience with the Attorney-General's Department.
Senator RHIANNON: Mr Santow and Ms Farthing, thank you for your submission. I notice there are quite a number of references to how this could act as a deterrence to those seeking information. I am interested in whether you could expand on that and whether you are even able to quantify how this will play out. How will people respond when the new regime comes in, particularly with the costs? Do you have any idea of what the drop-off rate might be? I know that is probably hard at the moment, but I think it is important to understand the implications.
Ms Farthing : I certainly do not have a definitive answer. But certainly from PIAC's experience and the experience of PIAC's clients, a fee of $861 to pursue an appeal is simply going to be prohibitive. There is that initial fee of $861, but I also think it is worth bearing in mind that there are also other costs that are going to be associated with any litigious proceeding in the AAT. Those costs are from legal representation to photocopying. We really do believe that it will act as a deterrent, which is why, if the committee is minded to recommend that the changes do take place, some of the recommendations that we make around charges and fees in relation to both charges for access to documents under the FOI Act and when we get to the AAT stage be addressed. I am happy to discuss them now. I do not know if it is worth taking it on notice. I do not know if we could say definitively that we can give you a number, for example.
Senator RHIANNON: Can you take on notice to provide any information about what the possible trend would be? Can you quantify the additional charges? What would come on top of the $861?
Ms Farthing : Do you mean in terms of legal costs and disbursement—
Senator RHIANNON: You were talking about photocopying and those other things. Do you have an approximate figure with respect to what people encounter when they go through that?
Ms Farthing : It would depend on the complexity of the case.
Senator RHIANNON: Fair enough.
Ms Farthing : I do not think I could give you an average cost, but it could be hefty. It could be thousands if you did engage legal representation. When you are talking about the AAT, it is also worth bearing in mind that most PIAC's applicants or people in a similar position to PIAC's applicants will not have the kind of legal representation that government agencies will be able to bring to that tribunal. So there is that imbalance in funds and the imbalance that will happen in the litigious process.
Senator RHIANNON: Mr Timmins, do you have any comment on the impact it would have on the degree of public interaction with the FOI process?
Mr Timmins : I think it is very hard to be definitive about that. Overall, about 25,000 people a year use the Commonwealth FOI Act. Quite a significant number of those challenge decisions. That does not mean that those that are not challenged are good decisions, but a lot of people fold their tent pretty quickly after their initial attempt, I think. But you will certainly be very mindful of potential costs if you take an agency on after a decision when your only avenue is the AAT.
Senator RHIANNON: I understand that there is a list of grounds where you can get reductions in the cost. How easy do you think it would be for that reduction to be granted, or do you think the bar will be fairly high and hard to meet?
Ms Farthing : It is quite clear under the AAT regulations. I think it is regulation 19, which has a very set number. If you are in receipt of Abstudy, for example, you will fall within that those particular criteria. We have recommended that there be a public interest consideration. We believe that there could be an easy amendment to the regulation so that, in circumstances where the application for an appeal is concerning information sought that is in the public interest should it be published, there should be a consideration there to reduce that fee. At the moment it can be reduced to $100 under the regulation. There is also the issue of hardship costs.
Senator RHIANNON: Thank you. Mr Timmins, we had an exchange earlier about this being a budget measure, but I noted that the Attorney-General, in speaking to the bill, talks about the problems with the existing system and states that it has contributed to significant processing delays. So the Attorney-General does put up an argument that the current system has flaws. Could you comment on that? It seems to be one of the government's main arguments for changing what we have.
Mr Timmins : I think right from the start it is fair to say that the delay in the OAIC in conducting and finalising information and commissioner reviews has been unsatisfactory. As I say, I waited for a year recently for a matter to get to the top of the queue. I think that is unacceptable. I have publicly said that I think you would have to be a government agency to think that it is okay for any organisation that has a key performance indicator that it will deal with most matters within 12 months.
CHAIR: It depends on how many and what staff you have got.
Mr Timmins : In the age of customer service and being attentive, a year is a long time to wait for things to be sorted.
Senator RHIANNON: Yes.
CHAIR: But you are not suggesting that the commission are lazy or not doing their job?
Mr Timmins : No; not at all. I am suggesting in my submission that they were significantly underfunded and, in some ways, were set up to fail, because they never received the resources that were identified at the start of the process.
CHAIR: Speak to the previous government about that.
Mr Timmins : Coming back to your question, no, I am saying that there certainly have been flaws. I have been critical that in the four years has been only been one own-motion investigation by the OAIC. I think that a bit more close examination of some agencies might have been warranted—apart from the department of immigration, which was the subject of that one own-motion investigation. So I am not suggesting, by any means, that the OAIC has been without flaws; but to disband it because of an identified problem about the one function of IC reviews seems to be unwarranted, because there are many other things that the OAIC is responsible for that are not going to go anywhere in government, particularly this role of the advocate, the independent monitor, the champion. We are very few steps into a long journey of reducing excessive and unnecessary secrecy in government. That is after 30 years. But we still have a long way to go.
Senator RHIANNON: So we have started down the road towards reducing secrecy but we have now stepped backwards; is that what you are saying—if the bill goes through?
Mr Timmins : In my view, this removes a very important plank in a system that was moving ahead slowly in the right direction. I think we are now looking at another direction; it is not going forward.
Senator RHIANNON: So, if this happens, it would be easier for the government to retain a level of secrecy about how departments operate?
Mr Timmins : I think particularly with the Attorney-General as the source of guidance—so we have lost the independent character of that. We have removed the non-litigious free review of decisions. One of the easiest outs in future gaming, by the way, is simply to not make a decision in time. A decision not made in time is deemed to be a decision by the chief executive officer. There is no internal review of a decision by the chief executive officer. So your only course of action if an agency does not do something in time is to take it off to the AAT, with an $861 flag fall. I can see a new game in town somehow!
Senator RHIANNON: Yes. For by far the majority of people, it is a lot of money. In terms of international best practice, there is, I understand, a growing awareness that the public have a right to know as part of western democracies, and this issue is becoming more prominent. Where do we sit in terms of the international trend in that direction?
Mr Timmins : There are a number of surveys, but one undertaken two years ago now by the Centre for Law and Democracy in Toronto and Access Info Europe rated Australia 48th out of the 95 countries surveyed in terms of the Freedom of Information Act. It was not in terms of practice; it assessed our act against emerging ideas about good practice, and we were rated 48th. I think there is a bit of an argument about whether that was precise and scientific; we could have been 35th. But we are in the middle patch. We are not at the front.
Senator RHIANNON: But that is just about the legislation?
Mr Timmins : It is just about the legislation. But we are in the middle. We are not leaders here. We are not leaders by a long shot. We are middle runners at the moment and we might be going a bit further back in the pack.
Mr Santow : If I could make a more general point, what any FOI regime does is provide an orderly means for the public to apply for government held information and for the government to control what information is released. I think the vast majority of commentators and people with experience with FOI agree on this point: if the impact of this FOI amendment is to constrict access to government held information, that does not mean that government held information will not leak out; it makes it much more likely that it will leak out in an uncontrolled manner. So, if government are concerned—and one can imagine why they would be—about WikiLeaks , Edward Snowden and other means by which information comes out in an uncontrolled way, then constricting FOI is probably the worst approach to take. It is much more useful for government to take an approach that allows people—especially disadvantaged people—to obtain information, in an orderly means, through FOI.
CHAIR: Disadvantaged people like Mr Snowdon.
Mr Santow : No, I do not mean like Mr Snowdon. I mean like the vast majority of people who apply for information, under FOI, who are not multimillionaires and who do not own newspapers or media organisations.
Senator RHIANNON: Could you outline what the new responsibilities of the Attorney-General will be and any contradictions you see within that role and where that sits, in good practice? I understand New Zealand has some fairly good laws in this respect. It does sound troubling.
Ms Farthing : The main transfer function will be under section 93 of the FOI Act or the regulation and guidance, which we have discussed already. It is delivered by an independent agency. It will be delivered by someone, we believe, where inherent conflicts will arise. This is particularly in relation to the creation of legislative instruments whereby the Attorney-General will be able to define certain categories of information which, under the current terms of the act, he believes would be unreasonable to publish. So we are very concerned. If the Attorney-General has a role where he is able to state in this category of information, 'I am going to decree by legislative instrument that it cannot be published,' when that might be information sought for his department, you can see how he is sitting as judge and jury, on request.
CHAIR: He would only do that in relation to security matters, would he not?
Ms Farthing : There is no restriction, as I understand it, under the act.
CHAIR: No, he has got to regulate.
Ms Farthing : Yes. There is no issue. PIAC certainly does not say that every single piece of government information should be in the public domain. What we are concerned about, and what I understand the senator's question is getting at, is that there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the act himself. That is where our concern is, that there will be that conflict. This is why we make the recommendation that this particular regulatory function be directed to an independent agency, such as the Australian Human Rights Commission.
As has been discussed, there is a lot of strength in having an independent office. They are objective. They are fulfilling those very important objectives at the beginning of the FOI Act. Our concern is that those objectives will not be as adequately fulfilled. We will not have an independent champion of FOI principles once those very important functions go to the Attorney-General.
Mr Timmins : On the reporting function as well, the existing situation is that the OAIC reports to the parliament. In future it will be department of the Attorney-General that will report to the parliament on the operation of the act in the last 12 months.
CHAIR: Are government agencies required to respond to FOI applications within a certain period of time?
Mr Timmins : They are.
CHAIR: What is that time?
Mr Timmins : Thirty days.
CHAIR: If they reject it, under the new proposal the applicant can immediately go to the AAT.
Mr Timmins : That is correct.
Ms Farthing : Following an internal review.
Mr Timmins : There is no internal review if it is a deemed refusal. That is my understanding of it.
Ms Farthing : Sorry, yes.
CHAIR: In the normal course of events, how long would it take the AAT to deal with it?
Mr Timmins : Some weeks, I guess. Again, they speak for themselves. I do not know. They may have a triage system where they can throw it out the door straight away or something.
CHAIR: I think you acknowledged that with applications for information timeliness is important—if it goes for three years, why bother. Under the new system, you would expect to get a decision relatively quickly.
Mr Timmins : You might be more hopeful than me.
CHAIR: Thirty days—
Mr Timmins : Sure.
CHAIR: and then three weeks, three months, you've got the decision. Let me put this hypothetical to you, which I will elaborate on later. A newspaper wants some information. The government department refers it to others who might be named. They then object. The department look at it again and they then say they are going to refer it. Someone then says, 'I'll refer it to the commissioner,' who then has a lot of correspondence, and two years later makes a decision, which the person objecting can then take to the AAT. If timeliness is of the essence then the new system would seem to be far more timely.
Mr Timmins : I am not sure. I think the same difficulties will arise in the new system as in the old, about when you do have information about other people's business affairs, other people's personal information. There are complex rights that can be exercised in those circumstances and the process can be delayed—no question.
Ms Farthing : There have been a few references to delay and PIAC have been a critical friend of the Information Commissioner because of reasons of delay, as you have mentioned. What our concern is that there are indications that those delays are coming down. Abandoning the Information Commissioner at this point without a case to show that there definitely will be a faster process—and I do not think it is very clear that there will be through the AAT—is an unfortunate way to go. There are recommendations in the Hawke review. There are measures which PIAC have recommended in the past to deal with those issues of delay. In addition, we will also be leaving an informal framework to deal with disputes because they do arise. I think the Queensland Information Commissioner in her submission did outline that a very large majority, 89 per cent, of the appeals that they consider are dealt with informally. That is going to be far better for the applicant to have a free, informal process. It will be faster eventually once case management procedures are embedded rather than having a litigious process, which is very expensive and probably prohibitively so.
CHAIR: I accept that. We have run out of time. Thanks very much for your appearance. Before you go, I find myself conflicted because it has just occurred to me that I should disclose something to my colleagues in the parliament. I actually have a matter before the Office of the Information Commissioner at the moment. Consequently, I will disqualify myself from the 3.30 timeslot and let the deputy chair take over so that people do not feel embarrassed. The Department of Administrative Services paid an employee of mine wrongly five or six years ago and then tried to recover the mistake from me. I have denied liability and invited the department to sue me if they think they are right.
After about four years, an FOI request was made by the media to disclose all parliamentarians who owed the government money. The department rightly referred it to me because they claimed that I owed them that money. I objected and said, 'I do not and if they think I do, they should sue me.' I objected to the release of the information and at no cost referred the matter to the Information Commissioner, who has been very courteous, efficient and precise, but grossly overcommitted and has not been able to deal with my matter for some time. So I just make that disclosure. It is relevant to this inquiry which I had not considered prior to coming here. Perhaps I should have disqualified myself from the hearing. I do not want to embarrass people, so I will disqualify myself from chairing the 3.30 session with the Information Commissioner. I might say there are people in the system who are advantaged by the current system and who will be disadvantaged if this bill goes through. Maybe I will have to consider my vote in the parliament more precisely! I mention that to explain some of the questions I asked before.
Thank you very much for your assistance. It is good to catch up with Open Australia. I have seen you on and off over the years and now know what and who you are.
Mr Timmins : The real people behind Open Australia are not here today.
CHAIR: Thanks to you both very much.