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Legal and Constitutional Affairs Legislation Committee
28/02/2017
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner

[14:23]

CHAIR: Now to the Office of the Information Commissioner. The committee notes that these people have been requested by the Labor Party and by Senator Kakoschke-Moore. Thank you for your attendance. Do you want to make an opening statement, Mr Pilgrim, or any of your associates?

Mr Pilgrim : No, Senator, we will not be making an opening statement.

CHAIR: Senator Wong.

Senator WONG: Senator Kakoschke-Moore has a number of questions. I am happy to cede to her for five minutes, if that is all right with you, Chair; otherwise, I will proceed.

CHAIR: I am quite happy to go to Senator Kakoschke-Moore.

Senator KAKOSCHKE-MOORE: Thank you, Chair, and thank you, Senator Wong. I will just go back to the 2014-15 budget when then Prime Minister Tony Abbott announced an intention to abolish of the Office of the Information Commissioner. As a result of some questions that my colleague Senator Xenophon had put on notice around the levels of staff, I understand that, prior to that announcement of the intention to abolish your office, there were 97 staff, and that currently you have 78, which is a 20 per cent reduction in staff numbers. Are you rebuilding your staffing levels to meet those that existed back in 2014-15, or has the staffing level within the office plateaued?

Mr Pilgrim : We are rebuilding to a certain level that our budget will allow. At the moment, we have approximately 69.48 full time equivalent staff, and we anticipate that we will be aiming to get to approximately 75 staff ultimately.

Senator KAKOSCHKE-MOORE: What services have been impacted as a result of the reduction in staffing numbers since 2015?

Mr Pilgrim : In terms of our workload, we undertake to ensure that we can provide the most timely services on both the main jurisdictions we deal with, handling Information Commissioner reviews under the Freedom of Information Act in particular, and complaints under the Privacy Act, as well as other functions. I can go into statistics in terms of the time it is taking us to handle those particular issues, but I would point out that one of the functions that we did have prior to that particular decision being taken was a role under the Information Commissioner functions themselves, under the Australian Information Commissioner Act. We are not undertaking those functions at this point in time because much of that work—in terms of advising government on the handling of data more broadly, which was the intent of those particular provisions—is being undertaken through the Prime Minister's department, and we participate as part of a number of committees in that work.

Senator KAKOSCHKE-MOORE: It is my understanding that, within your office, there are three separate commissioner positions, those being the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner. Am I correct in my understanding that, currently, the FOI Commissioner and the Privacy Commissioner positions are vacant?

Mr Pilgrim : Not quite. As I said in introducing myself, I was appointed as the Australian Information Commissioner, and I was concurrently appointed as the Australian Privacy Commissioner. The Freedom of Information Commissioner position is vacant. However, I would hasten to add that, as the Australian Information Commissioner, I hold and can exercise all the functions under the Freedom of Information Act, and I do so.

Senator KAKOSCHKE-MOORE: It is my understanding that, in the act that sets out the appointments, the Freedom of Information Commissioner is required to have obtained from a university a degree in the field of law. Do you have a degree in the field of law?

Mr Pilgrim : No, I do not. But, as I said, I can exercise the functions under the FOI Act as the Information Commissioner, and the Information Commissioner position does not require those qualifications.

Senator KAKOSCHKE-MOORE: In the two positions, there is a lot of overlap in the responsibilities—is that right?

Mr Pilgrim : Well, it is more than an overlap. In fact, the Freedom of Information Act vests the powers and functions under the Freedom of Information Act in the Information Commissioner. The Freedom of Information Commissioner picks them up through the Australian Information Commissioner Act.

Senator Brandis: I think there has been something of an effusion of legislation in this area. The appointment of Mr Pilgrim jointly as the Australian Information Commissioner and the Australian Privacy Commissioner and his designation to act as the Freedom of Information Commissioner means that what had previously been three statutory officers are in fact discharged by one person, and the efficiencies that have resulted from that have not been at any noticeable cost to the operation of the information availability mechanisms of the government.

Senator KAKOSCHKE-MOORE: I will just need to put my hands on it, but I understand there were some questions Senator Xenophon had asked in relation to the processing of requests made through your office, and there does seem to be some slowing down of the time it is taking for these reviews to take place. In particular, I am referring to questions that were asked during the last supplementary estimates, so in October last year. I understand that there were some delays indicated in that.

Mr Pilgrim : I can give you some figures in terms of the last few financial years, if that would help you in terms of the average time taken to resolve matters. If I could perhaps do this by calendar year, rather than by financial year, it would help. If I were to go back to, say, 2011, which was the first full year of operation of the Office of the Australian Information Commissioner, it was taking us on average 359 days to process, to deal with, an FOIC—an information commissioner review. If I turn to where we were in 2015, for example, it took us 183 days.

Senator KAKOSCHKE-MOORE: On average?

Mr Pilgrim : On average.

Senator KAKOSCHKE-MOORE: In relation to some of the information that we have obtained through previous estimates, I saw that in 2014 there were 97 reviews that took more than six months, but that in 2015 there were 142 reviews that took more than six months. Maybe average processing times have gone down, but there are still a significant number of cases that are taking six months or more.

Mr Pilgrim : Sorry, yes—we were in the process of going to correct just one of those figures. In 2015, we resolved 125 Information Commissioner applications within three months; in up to three to six months we did 113; and, in six to 12 months, we did 132. They took six to 12 months.

Senator KAKOSCHKE-MOORE: Perhaps there has been some streamlining—or perhaps simpler cases are being resolved faster, but the more complex ones are taking more time than previously. Is that a fair way to characterise the nature of some of these lengthier cases?

Mr Pilgrim : It is in a way, yes. As you can appreciate, it will depend on a number of factors when you look at particular matters. They could be—if I can be slightly glib—as simple as looking at a document that has been requested which is one-page long, down to tender documents which can be many hundreds if not thousands of pages long. Some of the more complex ones will take time. Then you need to consider the particular exemptions that have been applied by the agency, and they will require us to consider those and to work closely with the agency, particularly if we think that the right exemption has not been applied. So some cases will take a lot longer. It is really a contextual matter.

Senator KAKOSCHKE-MOORE: Returning to the point about one person occupying two or perhaps even three of the commissioner roles, was it always the intent that one person would occupy those three roles? From my reading of the legislation, it seems that individuals would hold those roles—different people would hold them.

Mr Pilgrim : The legislation clearly provides that three individuals could hold those roles. But, as we went through the process and the initial decision was made that the office's functions should be dispersed in a different way and undertaken in a different way, when the decision was taken to allow the OAIC to continue on with both the FOI functions, I did recommend to government that having been in the position of the acting information commissioner at the time for a while and as Privacy Commissioner I felt that the roles could be done by one commissioner, and also took on board that I also slightly adjusted the executive SES level of the office to provide me with additional support in doing that, recognising that there would be the need to have more senior level support. But, ultimately, the advice I gave to government was that I believed that the roles could be done by one person.

Senator KAKOSCHKE-MOORE: Thank you.

Senator WONG: Mr Pilgrim, there have been a number of media reports regarding the disclosure of personal information of Centrelink clients by the government. Without going into their names, I just want to know if any of those are before you. Have any of them been referred to you?

Mr Pilgrim : If I can just clarify the Centrelink matter you are referring to. There was some media yesterday and today about Centrelink naming a particular individual?

Senator WONG: Correct.

Mr Pilgrim : As far as I am aware, and we checked as early as this morning, I have not had any matters brought to me by a member of the public about that matter. But I should note that I did make a comment in the media today that I have, or my office has, approached Centrelink to make some inquiries about the process they have used to undertake the release of that information.

Senator WONG: I had not seen the detail of that. I now have, thanks to my colleague. Can I ask what led you to make those inquiries.

Mr Pilgrim : As I said, we saw the media reports in terms of a member of the public—and I do need to be careful here in case we do end up with a matter before us; so I will try to talk in more general terms—and there were some concerns about how potentially sensitive information had been released. I thought it was necessary for us to make some inquiries to assess what powers Centrelink was using to release the personal information of an individual into the public arena. We are making general inquiries. I would stress that this is not a formal investigation at this point in time. We are making inquiries to ascertain what powers they used to release that information.

Senator WONG: And that was as a result of the information you saw in the media?

Mr Pilgrim : Correct.

Senator WONG: Was that your decision, Mr Pilgrim, or someone else's?

Mr Pilgrim : Yes, that was my decision.

Senator WONG: I wonder if you could assist us. You said one of the matters that you were inquiring into was what power Centrelink was using to disclose this private information. Leaving aside the particular individual, can you just take us through what the regulatory framework is for the release of private information by Centrelink and the Department of Human Services?

Mr Pilgrim : In part that is why we are asking the question. If I can go back to the Privacy Act: the Privacy Act provides for the use and disclosure of personal information that is held by, in this case, a government agency, as with many private sector organisations, and it sets limitations around how that information can be disclosed and the circumstances in which it can be disclosed. It could be, for example, that when we turn to government agencies they are governed by their own statutes, and that statute may provide the secretary of the department with the ability in certain circumstances to disclose personal information. If the statute itself allows for that to happen—that is, the agency's statute—then within the Privacy Act there is a provision that allows for the disclosure of information where it is authorised or required by law and that would—

Senator WONG: Is this the permitted general disclosure? Is it that reference?

Mr Pilgrim : Yes. So, if it falls under those provisions, as in there is something, say, within another agency's act to allow it, then for want of a different description it would override the Privacy Act in that situation. So just to be clear for my own purposes: in terms of regulating the Privacy Act, we are making inquiries to see what authorisations Centrelink would have had to release that information.

Senator WONG: So the legal question then—and obviously it is not an area that I have a great familiarity with—is whether or not the relevant provision in the Privacy Act is, in effect, overruled by a statute-specific power to release information?

Mr Pilgrim : That is correct.

Senator WONG: Okay. Absence the latter, would the former prohibit or prevent the release of such information—in other words, if there is not a legitimate statute-specific entitlement to release, would the Privacy Act limit or prevent the release of this private information?

Mr Pilgrim : Again, I am wanting to be careful that we keep this at a fairly general level—

Senator WONG: Sure. I am trying to stay general.

Mr Pilgrim : There are other exemptions within the use and disclosure principle, APP6, that may allow for it. For example, one could be where there is a reasonable expectation on the part of the individual that the agency would release that information in certain circumstances, and that comes down to a reasonable person's test.

Senator WONG: This is 6.2: the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose.

Mr Pilgrim : That is one part, yes.

Senator WONG: And there are a range of subclauses there.

Mr Pilgrim : That is right.

Senator WONG: Have you had the opportunity to consider section 202 of the Social Security (Administration) Act 1999 and section 162 of A New Tax System (Family Assistance) (Administration) Act 1999?

Mr Pilgrim : Not at this point in terms of this general issue and this general question which we are talking to Centrelink about.

Senator WONG: The minister has made an assertion today, I think in the House that 'These provisions allow the department to correct the record in cases where a person makes a public statement or complaint about the department's handling of their welfare payments that does not accord with our records, including via the media.' Can you tell me if that is an accurate statement as you understand it?

Mr Pilgrim : I have not had the chance to familiarise myself with those particular provisions of those acts, so I would not like to make comment at this point in time.

Senator WONG: Are you aware of any other circumstances in which a minister can choose to release personal information of Centrelink clients without a certificate from the secretary?

Mr Pilgrim : I am not aware of any, but that is not to say that there would not be.

Senator WONG: Are you concerned about the disclosure of personal data of Centrelink clients?

Mr Pilgrim : I am always concerned if there is an inappropriate disclosure of people's personal information whenever we see it happen, which is why we are making inquiries at the moment. We like to inform ourselves to make sure that that has been done appropriately. One of the issues we look at is whether the release of the information is also proportionate to the issue that is being dealt with at the time.

Senator WONG: How long have you been in this role, Mr Pilgrim? I am sorry.

Mr Pilgrim : As Privacy Commissioner I was appointed initially in 2010. I was the deputy commissioner since 1998.

Senator WONG: So you have a lot of familiarity with this area of law?

Mr Pilgrim : I do, yes.

Senator WONG: Do you recall any other occasion where, in response to a media story, government has released this level of private information about an Australian citizen, and their social security history?

Mr Pilgrim : To be quite honest, I would need to take some time to think back on some of the cases. I am sure there were a couple of cases quite a number of years ago where there was some information put on the record to, say, correct a situation where an individual had put through information to the media—to correct that information. I am struggling to think of what the particular case was but I know that, somewhere back, quite a long time ago, there was a situation of that nature.

Senator WONG: How long do you think your general inquiries will take? I know that is the bit of 'how long is a piece of string?' question, but—

Mr Pilgrim : Given it is an inquiry and subject to the fact that I know we and other agencies are probably at estimates hearings this week, we would like to think we might have a response of a preliminary nature from the agency if not this week then early next week. We would hope to have some response in that time frame.

Senator WONG: Can I ask the nature of the inquiries—at which level and from whom to whom?

Mr Pilgrim : I may be corrected by my colleagues but, if I understand it correctly Mr Solomon, who is the assistant commissioner for the dispute resolution branch rang the department. Was it yesterday?

Mr Solomon : This morning.

Mr Pilgrim : This morning.

Senator WONG: Which department—Human Services?

Mr Solomon : The legal section of Human Services.

Senator WONG: And to whom did you speak? If you do not want to give me a name just give me the status.

Mr Solomon : A senior officer in that area.

Mr Pilgrim : I believe it might have been their chief legal counsel?

Mr Solomon : General counsel.

Senator WONG: And did you take a note of that call?

Mr Solomon : The nature of that call was just to put DHS on notice that we would be making inquiries and that we were hoping to get something to them within the next 24 hours or so.

Senator WONG: What led you to do that? Was it the media reports?

Mr Pilgrim : Yes. As I said, we saw the media reports yesterday and I thought it was appropriate to ask the questions about the information and why was released and therefore to follow up. I was also responding to a media inquiry. Twofold, it was to alert the department that we were going to formally approach them to ask those questions, and also to alert them to the fact that I had made a statement about it.

Senator WONG: Is that the only contact so far, the call to general counsel?

Mr Solomon : The second contact. There was a contact with the privacy counsel within the legal section as well. Both of those people were contacted with the same information.

Senator WONG: And that was by you, Mr Solomon?

Mr Solomon : Yes.

Senator WONG: Again, 'the same information' means 'we intend to make inquiries about this'?

Mr Solomon : Yes, and that we were putting a statement out.

Senator WONG: A media statement—which I assume is the one that I have just read.

Mr Solomon : I hope it is that one.

Senator WONG: There is no other.

Mr Pilgrim : There has only been one.

Senator WONG: And the nature of the communication was what? 'We will be sending you a letter'? What is the next step in the inquiries after you have given them a heads-up it is coming?

Mr Solomon : We will be sending a list of inquiries by email or by letter.

Senator WONG: Meaning questions?

Mr Solomon : Yes.

Senator WONG: Mr Pilgrim, were you aware of the quote—I think it might be paraphrase—of the minister's statement that I read out to you?

Mr Pilgrim : No, I was not.

Senator WONG: Was any explanation from either the general counsel or privacy counsel provided to you in those phone calls as to the basis of the disclosure of the information?

Mr Solomon : I did not request any, and none was given.

Senator WONG: Thank you.

CHAIR: Does anyone else have any questions for the Information Commissioner?

Senator McKIM: Yes.

CHAIR: Okay, Senator McKim.

Senator McKIM: I have a couple of follow-up questions on the matter you have just been discussing with Senator Wong. Do you have capacity to conduct formal own-motion investigations?

Mr Pilgrim : Yes, I do.

Senator McKIM: Okay. I understand there has been verbal communication with two officers in the legal section of Human Services and that you will, presumably later today or some time tomorrow, be following up with a formal request. That is correct, is it not?

Mr Pilgrim : I cannot guarantee it will be later today, but we will be following up with a more formal written request.

Senator McKIM: Does that request have any statutory basis?

Mr Pilgrim : At this stage, no. As I indicated earlier, we are making some inquiries at this point to satisfy ourselves with some of the basic information about what has occurred, and then, subject to what DHS provide to us, it will be open to me either to be satisfied that they have acted according to law or, if I believe there is any further investigation warranted, to, as you suggest, open an own-motion investigation. Or we could be subject to receiving a complaint from an individual.

Senator McKIM: I appreciate that. In the absence of a complaint from the person involved, what would be the threshold for you to make a decision to conduct an own-motion formal investigation?

Mr Pilgrim : It is probably difficult to respond to at this point, but it could be that, if I do not believe there was an obvious legal authority to release the information, I would perhaps move to a formal investigation which would then allow me to exercise the functions and powers I have under the act to request any information that I require to look into the matter.

Senator McKIM: Thank you. Forgive me if you responded to Senator Wong about this, but is correcting the record a legitimate reason for a government agency to release private data about an individual in the absence of that individual's agreement and the other statutory matters that you have referred to earlier?

Mr Pilgrim : Again, I am very cautious about answering a question there which could be very specific to a case which may come before me, so I would prefer not to answer that question at this point.

Senator McKIM: Okay. I will not press you on that. There have been reports that Centrelink have said that they intend to continue doing this if they think that the public record needs correcting. Would it concern you if Centrelink acted in a similar way prior to you receiving and having the opportunity to consider the information that you intend to request very shortly from Centrelink in relation to the specific case that we are discussing here?

Mr Pilgrim : I would hope that Centrelink would continue to operate in a lawful manner. If they believe that they have a legal authority then I am not in a position to prevent them from doing that, but I would stress that, as I said earlier, I think any response in terms of releasing anybody's personal information should be proportional to the issue which they are trying to deal with or trying to resolve and should be very conscious of the sensitivity of much of the information that they hold as an agency and the impacts that can have on individuals.

Senator McKIM: Thank you for those answers. To be clear: at this stage you are yet to determine whether or not to conduct a formal inquiry into this. You would not rule that out, but you want to firstly obtain information informally from Centrelink. Would that be a fair characterisation?

Mr Pilgrim : That is correct. It may be that the answer to the legality of how they were doing it is quite clear on the face of it. If that was the case then that would save a much longer and possibly more drawn out investigative process.

Senator McKIM: Thank you.

CHAIR: Okay. Anyone else? If not, thank you very much, Ms Falk and gentlemen, for your attendance. We will see you next time.