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Legal and Constitutional Affairs Legislation Committee
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner


CHAIR: We will start with the Information Commissioner. Professor McMillan, did you want to make an opening statement?

Prof. McMillan : No, I have no opening statement.

Senator JACINTA COLLINS: Senator Brandis, thank you for that outline of your speech last night. I did managed to briefly glimpse some of what was covered other than the more unfortunate media attention this morning, but we may get to some questions around some of that when we get to the department. With respect to the Information Commissioner, absent an opening statement, I am wondering if you could update us on the circumstances around your office following the lack of progress of the Freedom of Information Amendment (New Arrangements) Bill.

Prof. McMillan : In a submission to this committee in relation to the legislation I foreshadowed that the OAIC was implementing the government budget announcement in May by closing the Canberra office, and that has now occurred. The Canberra office was closed last week, so there are now only two officers of the OAIC located in Canberra—myself and the Freedom of Information Commissioner, Dr Popple—and we are working from established home offices, basically, with the support of the office. The office in Sydney is still continuing. It is discharging primarily privacy regulatory functions. It is also discharging the FOI functions because we have the continuing functions under the FOI Act. The full-time equivalent staffing level in the office in late November was 62 officers.

That is, in brief, the situation we are in. We have implemented the budget announcement, but we are also dealing with the reality that the office continues in existence and we have functions, particularly under the FOI Act, that must still be discharged, and we are in discussion with the department about how those functions will continue to be discharged into the new year—and I can say that I am remaining in office into the new year and still playing an active role in discharging those functions, albeit in a slightly more awkward working environment.

Senator JACINTA COLLINS: What was your staffing level prior to the May budget?

Prof. McMillan : Back in July this year, our full-time equivalent staffing level was 79 officers and, as I say, it is down to 62. In the Canberra office, which, I might say, discharged a mixture of FOI, privacy and information policy functions, we had at various times up to 25 officers, but it is now down just to the two statutory appointees.

Senator JACINTA COLLINS: Without an office and working from home?

Prof. McMillan : Working from home. In an age of technology, it is possible. There are clearly issues about consultation. The office is still in Sydney and so I travel. I was in Sydney for much of last week, for example. In the discussions with the department, we will explore what is the best arrangement. Let me say that this is an unanticipated situation because—

Senator JACINTA COLLINS: Well, not completely unanticipated.

Prof. McMillan : the office was clearly working on the assumption that, with the budget expiring for FOI work at the end of December, we had to implement that decision. We expected that there would be a result on the legislation before the parliament rose, but this is an unscripted situation we are dealing with now, and so we are dealing with it as best we can to ensure that all the statutory functions of the office are discharged.

Senator JACINTA COLLINS: It is not completely unscripted in the sense that, when you were last before us, we discussed that hypothetical. I think it was in relation to the concerns of major media organisations and what might happen in terms of their access to the AAT. Can you inform us of what arrangements will occur in that space, or will you just be continuing as per previous functions?

Prof. McMillan : Over the last few months, we have addressed our FOI caseload in a number of ways, and one aspect of the FOI caseload is complaints about FOI administration by government agencies. We now have an arrangement with the Commonwealth Ombudsman, which has a concurrent jurisdiction in this area, that all FOI complaints are referred to the Ombudsman, and that is announced on both the Ombudsman and the OIC websites. As to information—

Senator JACINTA COLLINS: Sorry, when was that announcement made?

Prof. McMillan : That commenced in November—from 1 November that arrangement came into operation.

Senator JACINTA COLLINS: So all complaints regarding FOI administration now go to the Ombudsman?

Prof. McMillan : Yes, all go to the Ombudsman now. As to applications for Information Commissioner review, there were two aspects to that. Firstly, we had a large unresolved caseload that we have steadily addressed, and that caseload is down to just over 200 cases at last count; but also we were receiving new applications each month for Information Commissioner review. Prior to the government announcement in May, we were receiving an average of 55 applications per month. In the last month it was down to 21 applications. We have a small but very industrious and effective team for dealing with those. Eighty per cent of matters are resolved shortly after receipt by analysis and discussion with parties—a kind of early resolution triaging exercise—and that function continues. The real issue, then, is whether, after 1 January, there is budget resourcing available to the office for the discharge of that function in one or another modified way.

As you have indicated, Senator, there is a power in the FOI Act for the Information Commissioner or a delegate to make a decision that a matter will not be dealt with by the commission and an applicant may instead approach the AAT, the Administrative Appeals Tribunal, for review—section 54W of the FOI Act. The criterion for the exercise of that power is that it be in the interests of the administration of the FOI Act that it be dealt with first by the AAT rather than by a commissioner. After the government announcement, we gave many applicants an option of an exercise of that discretion so they could take the matter directly to the AAT, and some applicants accepted that. Many did not and, as I say, we have an existing caseload of just over 200 cases. As new matters come in, there will obviously be a stronger focus on whether that discretion should be exercised in order to expedite external review of an FOI matter. But, from my description, it is a statutory discretion that requires an individual exercise in each case. So, in short, we are in discussion with the department about the exercise of that function and the administrative support for that function after 1 January.

Senator JACINTA COLLINS: Yes—1 January is not that far away now.

Prof. McMillan : That is right—it is very close.

Senator JACINTA COLLINS: So, if you were offering this section 54W option, why, when we looked into the bill, were we getting such strident concerns from the major media organisations? Had they not yet become aware of it? Were some of their cases not matters to which that option had been offered? What is the explanation?

Prof. McMillan : Thinking has changed over the past four years. When the office commenced, the view was taken—and this is expressed, I must say, in guidelines that I have issued under the FOI Act—that there was a presumption in the act that external review should firstly be undertaken by the OAIC except in exceptional cases, and the guidelines laid out what those exceptional cases may be. And so there were occasional exercises of the discretion. As we had, on the one hand, a growing backload and, on the other hand, far more guidance through OAIC decisions and guidelines, we adopted a more liberal practice with the exercise of that discretion, and in more recent times, since the government announcement, we have adopted an even more liberal practice, essentially accepting an applicant's request that the discretion be exercised to enable them to approach the AAT. So, on the request that media organisations made in the evidence to the committee, if they prefer an AAT review that can be expedited. But not all media organisations do. Many applicants prefer the different setting, until now, of the OAIC.

Can I just make one additional remark in relation to our earlier discussion about the unscripted situation. We are well aware, of course, of the legislative reality that it requires parliament's agreement to alter the scheme, but we had to act quickly in the interests of staff, and many staff chose to leave very early on; and, indeed, if staff choose a redundancy path there are certain time lines that have to be implemented. So the position we have reached in December, where there are only two statutory offers, was just a practical inevitability following the budget announcement, even though we were well aware that it would require parliament's agreement to amend the legislation.

Senator JACINTA COLLINS: We are in an interesting situation then, I suppose again looking into unscripted territory, if the government is unable to pass the legislation.

CHAIR: That is a hypothetical question, Senator.

Senator JACINTA COLLINS: Yes, and I understand that, Chair, but we had that hypothetical essentially when they last appeared before us as well. Perhaps I will go back one further step from what you covered. When do you expect to understand what your financial arrangements will be post 1 January?

Prof. McMillan : I think it is best that the department answers that question.

Mr Minogue : We are in the position, as you say—entirely as you say—not unanticipated, where we have the legislation not progressed. It was not rejected but it was not passed. So the bill still reflects the expectation and outcomes government is seeking to achieve. In terms of what happens after 1 January, that will very much depend upon the success or otherwise of the bill in its parliamentary process, given that parliament resumes on 9 February. If the bill were brought on and passed, government could make decisions in light of that; if it were not, government could make decisions in light of that. That is a long way to say. It is probably too early to predict what the resourcing implications will be until government knows the fate of the bill and makes decisions accordingly.

What I should say, in saying that, is that clearly government accepts the reality that both the office and the statutory office holders are in, that the organisation continues. So the office has continuing functions; the officers have continuing functions. It is resourced to do those functions. Whether the implications of the bill mean government needs to reconsider that is really a matter for government.

Senator JACINTA COLLINS: Let's look for a moment at those resourcing implications then. The budget decision allowed essentially six months for the legislative implementation of that decision. That has not been successful. Come 1 January there are no financial allocations. I asked Professor McMillan—and he suggested, probably quite rightly, the department should answer—when he could expect to understand what financial arrangements will apply from 1 January.

Mr Minogue : And I would not agree that there was no resourcing, because as the office continues the resourcing for the office continues as well. The level of that resourcing government will need to consider in light of the progress of the bill.

Senator JACINTA COLLINS: But can we expect, for instance, that the mini-budget will give us some indication of what those financial arrangements will be?

Senator Brandis: [inaudible] mini-budget, Senator Collins. Mr Hockey has made that very clear. I do not know where you get the—

Senator JACINTA COLLINS: I am sorry?

Senator Brandis: There is not a mini-budget; Mr Hockey has made that very clear. So I do not know where you get the idea that there is a mini-budget. Perhaps that was an intended reference to the MYEFO—


Senator Brandis: Well, that is not a mini-budget.

Senator JACINTA COLLINS: We can debate semantics, but, okay, MYEFO.

Senator Brandis: It is not semantics, because to say there is a mini-budget has a particular meaning, and the Treasurer has said specifically, unequivocally, there will not be a mini-budget. The MYEFO, as you know, Senator, is part of the ordinary calendar of government. It comes out about this time every year as a matter of regularity and the MYEFO, as I understand it, will be released on Monday.

Senator JACINTA COLLINS: So back to my question: can we anticipate that MYEFO will give some clarity to the office about their financial arrangements after 1 January?

Mr Minogue : It is not for me to speculate on the content of that.

Senator JACINTA COLLINS: Professor McMillan, of the funds allocated to you in the budget, up until 1 January, what remains unexpended?

Prof. McMillan : A $1.4 million surplus from this first six months of operation. That is an issue in the discussion, obviously, with the department about—

Senator JACINTA COLLINS: What does that represent in terms of the total outlay for those six months?

Prof. McMillan : I will take that one on notice, if I may, just to give a more precise figure.

Senator JACINTA COLLINS: Mr Minogue might be able to help me out. What was the allocation for the six months?

Mr Minogue : For the first six months of this financial year the OAIC was appropriated $3.3 million, so it is roughly a third of that.

Senator JACINTA COLLINS: There was no appropriation after that, was there?

Mr Minogue : No, the way the budget reflected that funding, the moneys for the rest of the financial year from 1 January were appropriated to the Australian Human Rights Commission. That would have been the effect if the bill had have passed. But the FOI functions would not have continued —

Senator JACINTA COLLINS: Again, how much was allocated to the Human Rights Commission?

Mr Minogue : The Human Rights Commission was appropriated a little under $2.7 million.

Senator JACINTA COLLINS: So one of the options is that allocation going to the Human Rights Commission if the legislation is not passed. Is that correct?

Mr Minogue : In terms of how the government deals with that, the government budgeting process would need to reflect that the Office of the Australian Information Commissioner continues until the legislation passes or it doesn't. Whether or not moneys would continue to be appropriated to the Human Rights Commission or to the Office of the Information Commissioner would be a matter that would need to take account of that reality, which was not what the result of the bill would have been had it passed. It seems to me that you are asking two questions, though. One is the mechanics of where the money goes and the other is the amount. I suspect the answer to both of those questions is reasonably similar, which is that it will depend on the progress of the bill.

Senator JACINTA COLLINS: You are not quite understanding my question at this stage.

Mr Minogue : Sorry.

Senator JACINTA COLLINS: I am looking at an office which has, as I understand it, 62 staff and no funding allocations at the moment from 1 January.

Mr Minogue : That is not right. Funding allocation from 1 January was to be appropriated to the Human Rights Commission for the continuing functions of the office, which are primarily the privacy functions. Those functions are also supplemented by the MoUs that the Privacy Commissioner has with other agencies for particular work. So it is not correct to say there is no funding for those functions. What does not continue or what reflects in the budget and the appropriations was the fact that government had made decisions about how freedom of information matters were to be handled. And, as I say, the bill still reflects government's expectations of how those matters will be progressed, which is why Professor McMillan said that, while it is not unanticipated because the matter did not get on for debate and we have the Senate committee report, we are in—

Senator JACINTA COLLINS: That is a generous interpretation.

Mr Minogue : discussions with Professor McMillan as to how best to deal with those consequences and the fact that the office has continuing functions. But I am not just ducking when I say that it depends on the progress of the bill, because it does. The bill reflects the government's intention. If the matter were brought on and progressed and passed in February it would be pointless to gear up the full FOI machinery again. If the bill is not passed, government can make decisions in light of that. But, as I said, the bill reflects the government's expectations. As Professor McMillan said, FOI complaints have gone to the ombudsman. There are mechanisms to deal with external reviews, and we are in discussion with Professor McMillan about the best way to deal with those, given that it is not just the interests of the department or the office but the interests of applicants as well. And those conversations are continuing.

Senator JACINTA COLLINS: Well, then, going back to my earlier comment, the $2.7 million that was allocated to go over to the Human Rights Commission represents the funds that are available to deal with the interim situation, until we sit again in February, with respect to previous allocations that were to conclude at the end of December.

Mr Minogue : From 1 January the $2.7 million reflects the funding that was marked for the purposes of the continuing functions of the Office of the Information Commissioner.

Senator JACINTA COLLINS: Wherever they be.

Mr Minogue : Wherever they be; exactly.

Senator JACINTA COLLINS: And we may see further information in MYEFO.

Mr Minogue : I could not speculate on that, but in addition there is the—

Senator JACINTA COLLINS: Except we know MYEFO is Monday. Professor McMillan, MYEFO is Monday!

Mr Minogue : There is also that money that Professor McMillan identified—

Senator JACINTA COLLINS: The surplus.

Mr Minogue : that would be applied to that as well.

Senator JACINTA COLLINS: So, the department is not reclaiming that surplus at this stage.

Mr Minogue : Our CFO is sitting behind me, Senator!

Senator JACINTA COLLINS: Discussions are ongoing!

Mr Minogue : And genuinely they are.

Senator JACINTA COLLINS: One other are I would like to cover fairly quickly—

CHAIR: Just before you get off that topic, could I ask you, Senator Brandis—and I should know this, because I was in the chamber—why wasn't the legislation dealt with?

Senator Brandis: You will recall, of course, that there was a very busy legislative agenda in the spring sittings, and it reflects a matter of priorities. Especially some of the more controversial legislation, you will recall, was debated at great length in the chamber, and the place in the queue of this legislation just was not reached.

CHAIR: But, if I recall, the last day we dealt with only one bill. Why was that?

Senator Brandis: You will have to ask Senator Fifield that. All I know is that this bill stood in the queue.

CHAIR: The answer is that the government does not control the agenda in the Senate anymore; it is controlled by—

Senator Brandis: Well, that is certainly true, too. But in terms of trying to order the introduction of legislation, one is of course mindful of the potential difficulties particular bills may face from the opposition and the Greens and the crossbench.

Senator JACINTA COLLINS: Just while we are in the area of general transparency issues: as Senator Brandis said a moment ago, he covered a range of issues last night where he represented that Australia has made significant strides. Perhaps I could ask you about the 2015-16 G20 anti-corruption plan.

CHAIR: Is this general government? Or is this to Professor McMillan?

Senator JACINTA COLLINS: At the moment I am talking to the department, but it relates to Professor McMillan as well, so it is probably best that we deal with it here.

CHAIR: Okay. I was just going to say that if we were moving on then Professor McMillan could leave us, but if it is relevant then we will get him to stay.

Senator JACINTA COLLINS: Yes. So, at the G20, Australia committed to implementing international best practice for public sector transparency in the plan. Do you consider the abolition of the information commissioner to be in accordance with international best practice?

CHAIR: Well, that is an opinion, which you are not allowed to ask about—as you know, Senator.

Senator JACINTA COLLINS: Then I will ask: do comparable jurisdictions have independent FOI watchdogs?

Mr Moraitis : We will have to take that on notice.

Senator JACINTA COLLINS: Was the development of Australia's information commissioner an implementation of international best practice?

Senator Brandis: That is partly a matter of opinion, but I think, as Mr Moraitis said, we can take that on notice. But I might point out, Senator, that, as you know, the plan is to transfer the review of these applications to the Administrative Appeals Tribunal, which of course is an entirely independent body, presided over, as you would be aware, by a former Labor Attorney-General, now President of the AAT, Justice Kerr. So I hope you are not impeaching the complete independence of the AAT in the performance of this, as in the performance of all its functions.

Senator JACINTA COLLINS: I hope we are not going to start this early in the day by suggesting that I am saying things that I am not.

Senator Brandis: No, but the implication was that there is no longer going to be independence.

Senator JACINTA COLLINS: No. I did not say that.

Senator Brandis: Well, that is what I understood you to be saying. If you are not saying that, that is fine. But of course there will be complete independence.

Senator JACINTA COLLINS: The government is yet to announce whether it will or will not proceed to join the Open Government Partnership, which is described as a good way to learn about best practice internationally. Where are we on that issue?

Mr Moraitis : That is a matter for the Department of Finance. That is my understanding. Is that correct?

Mr Minogue : Yes, that is right.

Senator JACINTA COLLINS: So it is exclusively up to Department of Finance whether we join the Open Government Partnership?

Mr Moraitis : That is my understanding.

Senator JACINTA COLLINS: That finishes the section for me, thank you, Chair.

CHAIR: Senator O'Sullivan, do you have any questions for the Information Commissioner?

Senator O'SULLIVAN: No, I do not.

CHAIR: I thank the officers of the Information Commissioner. I wish you all merry Christmas. Nothing personal, but I hope we do not see you till February at the earliest!

Senator Brandis: I think it is appropriate to say, before Dr Popple leaves the table—and I might be a few minutes premature—that this morning His Excellency the Governor-General and the Executive Council will consider the cabinet's recommendation for the appointment of Dr Popple to the Administrative Appeals Tribunal as a senior member for a three-year term.

CHAIR: That is good news.

Senator Brandis: So I would like to congratulate Dr Popple on behalf of the government on that appointment.

CHAIR: I mirror those congratulations. Well done. Have a good Christmas.