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Legal and Constitutional Affairs Legislation Committee
28/05/2015
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner

[12:01]

ACTING CHAIR ( Senator Jacinta Collins ): I think I will start with the most recent budget with the background of the earlier discussions we have had.

Prof. McMillan : With the indulgence of the committee, I would like to make a brief opening statement which will touch on issues of budget planning and current work. It may feed into the questions. I will make an opening statement about OAIC developments since the OAIC last appeared before of the committee in 2015. The committee will be aware that there is a bill currently before the parliament to disband the OAIC and introduce new arrangements for review and oversight of FOI administration—that is, the Freedom of Information Amendment (New Arrangements) Bill 2014.

The budget for 2015-16 recently announced by the government provides funding directly to the OAIC for the forthcoming financial year, including transitional funding for FOI review and oversight functions. Specifically, the budget for next year will provide roughly $1.7 million for the FOI function and $6.8 million for the privacy function. The OAIC receives additional funding through privacy related MOU arrangements with other government departments.

Specifically, as to FOI work, The OAIC has continued to discharge a reduced and streamlined FOI review and oversight function. I will just give some statistics: since 1 January, that is in a five-month period, the Privacy Commissioner any myself have together published 34 IC review decisions and made one vexatious applicant declaration. In the first 10 months of this financial year, we have received and resolved a much larger number of IC review matters. Indeed, we have resolved 433 IC review matters, many of those on an early resolution basis after analysing applications and talking to the parties and, in some instances, discontinuing a matter so that it can be recommenced by the IC review applicant before the Administrative Appeals Tribunal.

We also continue to deal with telephone and written inquiries on FOI matters. There were 569 in the January-March quarter his year, and also extension of time requests and notifications, of which there were 523 in the same quarter. We no longer deal with FOI complaints. We have been referring any we receive to the Commonwealth Ombudsman since 1 November last year and the Attorney-General's Department has taken over statistical reporting advice and guidelines.

As to office arrangements, the committee will be aware that the Canberra office of the OAIC was closed in December 2014 and that all privacy and FOI functions are now handled in the Sydney office. Personally, I work in both the Sydney office and from a home base in Canberra with OAIC assistance and IT support. I focus principally on FOI matters and I also discharge other meeting and liaison functions in Canberra. Just briefly on the discharge of the privacy function, the OAIC has continued in a regular and dynamic fashion—for example, taking a leading national role in the annual Privacy Awareness Week, issuing a large number of privacy publications, guidelines and statements, and handling a large number of privacy inquiries. There were close to 20,000 in the first 10 months of this year and, in the same period, we received nearly 2,500 privacy complaints and 87 data breach notifications. That concludes my opening statement.

Senator JACINTA COLLINS: Thank you, Mr McMillan. Do I take it from that that you are still working from your kitchen?

Prof. McMillan : No, there was never any suggestion I was working from my kitchen. I have a very effective home office, I might say, in Canberra. It is well set up for handling matters in a digital age, but I also work, generally in alternate weeks, in the Sydney office.

Senator JACINTA COLLINS: Okay. I am just going to start on the funding arrangements that you have appraised us of. The transitional FOI funding of 1.7—how does that compare to what would have been allocated for the functions to FOI prior to the government's policy change?

Prof. McMillan : Commissioner Pilgrim will deal with the budgetary comparisons.

Mr Pilgrim : If I put it in terms of staffing levels, it might be useful in that regard. In the current staffing levels, we have nine people who are working on FOI, and that is in comparison to 12 months ago when we would have had approximately 23. The funding levels we have received should allow us to have an ongoing staffing level for FOI of approximately 11-12 people for the next 12 months.

Senator JACINTA COLLINS: So you will go from nine up to 12?

Mr Pilgrim : That is correct.

Senator JACINTA COLLINS: Which is about half of the capacity that previously existed?

Mr Pilgrim : Less than half that originally existed within the office.

Senator JACINTA COLLINS: All of this occurring whilst there has been no change to the legislation?

Prof. McMillan : Correct.

Mr Pilgrim : Yes.

Senator JACINTA COLLINS: So, despite the government's inability to progress this legislation during the last parliament, the transitional funding does not provide funding adequate to meet the provisions of the current act?

Prof. McMillan : I will comment initially on that. The figures that I have provided indicate that there is quite a dynamic output from the commission at the moment. Indeed, over the last four years there has been a steady improvement in output at a time of diminishing resources. For example, in the IC review—

Senator JACINTA COLLINS: Well, this is the diminishing resources, which is exactly the point I am getting to.

Prof. McMillan : Yes, and I will comment on that in one moment. In the IC review space, for example, on average we receive 30 applications per month and resolve 40 per month. So, we have eaten substantially into a backlog that we had and reduced it nearly by half, and we are continuing to deal with IC review matters in an efficient way. But let me add that it is not an ideal context—

Senator JACINTA COLLINS: No, it is not ideal.

Prof. McMillan : in which to be discharging that function, and it is correct, as you say, that there was a higher staffing at an earlier time. And that certainly enabled the office to discharge a broader range of liaison functions with government, the publication of guidelines and other materials and an occasional own motion investigation, although we did complete one in December last year—in record time, I might add. It is an awkward environment, but the office is highly productive nevertheless in the FOI space.

Senator JACINTA COLLINS: There is no question that the office is not attempting to function under very non-ideal and awkward circumstances. But my concern is that, despite the past discussions we have had about the government acting in this way in the absence of legislation passing the parliament to reform the act in light of their policy agenda, this is now round 2. You have been given insufficient funds in this budget to meet your functions.

Mr Pilgrim : If I may add something to what Professor McMillan said earlier, the 23 staff that I mentioned we had 12 months ago also undertook, as Professor McMillan suggested, a role in writing guidance material for government agencies, and those functions have been transferred over to the Attorney-General's Department. So, the allocation we have is looking specifically at the streamlined IC review process work that we are undertaking, as opposed to those other, broader functions which are now being dealt with within other agencies.

Senator JACINTA COLLINS: Yes, but the streamlining of the FOI function is the point at issue in relation to the reform of the act, and what the government is essentially doing here by stealth is redirecting functions to AG's when it has no legislative basis for doing so.

Senator O'SULLIVAN: A point of order: I think this is quite an unfair process. You are making statements that, if adopted by the witnesses, would be an expression of an opinion, and I really think you are wandering into space you should not be in.

Prof. McMillan : I was going add that I have no comment to make on that—on what is a better, or preferable, working environment. My comment only is that with the resources available to the commission and with the statutory functions that we have we are working hard to discharge the function as efficiently as possible, and in my view with some success.

Senator JACINTA COLLINS: Well, in response to Senator O'Sullivan's point of order, I am not attempting to have you give an opinion. What I am seeking to clarify is: prior to the Commonwealth changing its policy position about how statistics, advice and guidelines are developed and operated, those matters were within the functions of the Office of the Australian Information Commissioner. Am I correct?

Prof. McMillan : That is correct, yes.

Senator JACINTA COLLINS: And do those functions still reside in the act?

Prof. McMillan : In a general sense only. The act confers a number of quite specific functions on the office with respect, for example, to IC reviews, and it confers a number of general functions—providing advice, assistance training, education. It is fairly flexible as to how an office discharges those functions.

Senator JACINTA COLLINS: But at the moment—from what you are saying, and correct me if I am wrong—those functions have been streamlined to AG's.

Prof. McMillan : The short answer is yes, but let me say that towards the end of 2014 the office updated 15 of the 17 chapters in the published guidelines and has made no active amendment of the guidelines since. But certainly it is on my agenda to complete a rewrite of the other two chapters some time within the next couple of months, in consultation with the department.

Senator JACINTA COLLINS: To conclude that process.

Prof. McMillan : Yes.

Senator JACINTA COLLINS: Well, I would put to you that one of the most significant roles that has been raised with us in relation to your functions, or one of the most significant concerns that has been raised about the streamlining, is the removal of your role in providing advice to government departments about the appropriate handling of FOI matters, and significant concern about that role being managed by AG's.

Senator Birmingham: That sounds like you have put an opinion—

Senator JACINTA COLLINS: No, I am about to ask a question that relates to—

Senator Birmingham: There was a lengthy pause at the end of your sentence.

CHAIR: I was waiting for a question.

Senator JACINTA COLLINS: Than you, Senator. Senator Macdonald is a bit more used to my wanting the witness to understand the direction I am coming from, and the question—

Senator Birmingham: I doubt that—the prejudiced position you were coming from. But that is fine, Senator Collins.

Senator JACINTA COLLINS: Senator Birmingham, I know you are very new at this, but you do not need to go down that path.

Senator Birmingham: No, I am not that new.

Senator JACINTA COLLINS: You are newer than you think. Anyway, the question—

Senator Birmingham: I suspect I have spent more hours sitting on this side of the table than you probably did.

Senator JACINTA COLLINS: You need a bit more practice on estimates, I am afraid.

Senator Birmingham: Very polite of you.

Senator JACINTA COLLINS: Well, I was not the one who started insulting—

CHAIR: Senator Collins, ignore interjections, even from the minister, and ask the question, please.

Senator JACINTA COLLINS: I mean, I am used to Senator Brandis, but now Senator Birmingham is taking lessons. It is a bit amusing.

CHAIR: Please ask the question.

Senator JACINTA COLLINS: The question is: with the transitional funding you have received, given the concerns that I just indicated, is there any chance that you will return to that role, or that function?

Prof. McMillan : In a limited way, the function of providing advice and guidance to agencies and to the public will continue. The published guidelines was one method through which we provided that guidance. And those guidelines, I must say, have reached an advanced stage and are substantially up to date. We also provide that guidance through the telephone and written inquiry service, and, as indicated, we have received over 500, for example, in a three-month period.

Senator JACINTA COLLINS: Sorry; just so I understand you there: is that providing advice—

Prof. McMillan : Well, people ring for advice.

Senator JACINTA COLLINS: No, that is not advice to departments.

Prof. McMillan : Yes, departments frequently ring the advice service to ask for advice. Roughly 75 per cent of the IC review applications we receive are resolved on an early resolution basis, and in quite a number of cases that is after consultation with an agency and an applicant in which, in an informal fashion, there is OAIC staff commentary on the decision of an agency and its handling of an FOI request. Commissioner Pilgrim and I also take the opportunity in our IC review decisions to comment on agency handling of FOI requests. In a couple of recent decisions, for example, I have given advice on when deletions can appropriately be made, when agencies should get on the front foot and discuss a matter with an applicant before it gets to the stage of needing a formal review decision.

Senator JACINTA COLLINS: It would be helpful for us to understand—particularly if the government does actually ever get close to re-presenting its legislation to the Senate, which they have been loath to give an indication on for quite some time now, but perhaps when Senator Brandis returns it can be a direct question I ask him, again—when you describe the continued streamlined FOI process, what that streamlining now means in terms of your continued operations as opposed to how you were previously operating. What has transitioned to A-G's and indeed what has gone over to the Ombudsman?

Prof. McMillan : If the committee would like, I would be quite happy on an uncontentious basis to outline the way the office has discharged the function. Let me say, we have undertaken some quite innovative steps to streamline matters and these will be of lasting significance for FOI review, whatever model is adopted by the parliament, and this is reflected in recent IC review decisions in which we have adopted a template model that enables easier resolution, drawing attention to the issues and quicker disposition of cases. So I would be happy to prepare something which explains our work.

Senator JACINTA COLLINS: That would be great but please, I do not want you to spend too much energy on developing something that is going to, under your resources, direct you away from your principal functions. I suspect I do not have a great deal more time and I know other senators have questions, but can you tell me who presently occupies the position of Freedom of Information Commissioner?

Prof. McMillan : That position is currently vacant—since Dr Popple resigned on 31 December 2014.

Senator JACINTA COLLINS: Is there a process that you are aware of to fill that position?

Prof. McMillan : I am not aware of any process. It is probably a question better directed at the department.

Mr Minogue : Decisions in relation to appointment of statutory office holders are a matter for government.

Senator JACINTA COLLINS: That is not my question. My question is: is there a process to select a new FOI Commissioner?

Mr Minogue : Any announcement in relation to a process or otherwise would be a matter for the Attorney to—

Senator JACINTA COLLINS: No, it is not a matter for the Attorney. I am asking a process question and whether a process has commenced. That is a matter—

Senator Birmingham: If the Attorney has something further to add, I will make sure he does. Otherwise, I will take the question on notice for you.

Senator JACINTA COLLINS: I think that is probably the better path than to suggest that is a question you cannot answer.

Senator XENOPHON: Further to Senator Collins' line of questioning in relation to the issue of process, are you aware that there is a process in place to replace the Freedom of Information Commissioner?

Mr Minogue : I will take that on notice.

Senator XENOPHON: No, the question is: are you are aware that there is a process?

Mr Minogue : I am not aware of a process.

Senator XENOPHON: So, the direct answer to the question is you are not aware that there is a process in place. Are you aware that that process is being planned to replace the Freedom of Information Commissioner?

Mr Minogue : I think that is the same question.

Senator Birmingham: I think I did deal with that in response to Senator Collins. It really is a matter that if there is something the Attorney wants to tell the committee, he will be back in a little while and can inform the committee in that regard.

Senator XENOPHON: Minister, perhaps I can ask you, given we were in the trenches together when you were in opposition about freedom of information: are you concerned that there does not to appear to be a process in place to replace the Freedom of Information Commissioner since the former commissioner resigned at the end of last year?

Senator Birmingham: I am not aware of exactly what steps the Attorney may or may not be taking but, no, I am not concerned at this stage.

Senator XENOPHON: Do you think it is desirable that a Freedom of Information Commissioner be appointed sooner rather than later?

Senator O'SULLIVAN: Point of order. That is again asking for an expression of opinion.

Senator XENOPHON: Point of order, back through you, Chair. I am asking it of the Minister. I am sure he is a servant of the public, but he is not a public servant.

Senator Birmingham: I am quite confident that the Attorney is appropriately administering the act.

Senator XENOPHON: I asked you: do you think it is appropriate that, as a minister, it is better to have a Freedom of Information Commissioner appointed sooner rather than later?

CHAIR: No, you are not allowed to ask ministers matters of opinion—

Senator O'SULLIVAN: Good second attempt.

Senator XENOPHON: I will not pursue that. Thank you for your guidance. Can I ask you, Professor McMillan, at the moment—I think it may have been covered, but if you can refresh my memory—how many staff does your office have?

Prof. McMillan : The full-time equivalent is, say, 61 staff members at the moment.

Senator XENOPHON: The fact that the Freedom of Information Commissioner has not yet been appointed, there is not a replacement, does that impede you in any way in terms of the exercise of your work?

Prof. McMillan : Formerly, there were three commissioners who could make IC review decisions—and only a commissioner can make an IC review decision. Since Dr Popple's departure, it has meant there are only two commissioners, Commissioner Pilgrim and myself, who can make IC review decisions. Since Dr Popple's departure, we have published 34 decisions and been involved in disposing of a much larger number.

Senator XENOPHON: Would it be fair to say that in the absence of another commissioner that does axiomatically mean that there is, all things being equal, a greater workload for the two of you?

Prof. McMillan : Yes. More hands on deck means greater distribution of work among those who are available.

Senator XENOPHON: Does that in itself lead to an increased backlog or a more cursory approach? I am not in any way being critical. Does that mean that you need to cut your cloth accordingly to try and deal with the workload?

Prof. McMillan : We have addressed the staff reduction by exploring other options for earlier resolution of cases and indeed have been successful in reducing the backlog. The backlog of unresolved matters was standing at around 350, 18 months ago. It is down to under 200 at the moment. As I indicated earlier, we receive 30 IC review applications per month and resolve 40; so there is a steady and efficient handling of cases. Of course, there is some reduced work as well. We now refer all FOI complaints to the Commonwealth Ombudsman. And, as indicated, the department has picked up the tasks of statistical reporting and preparing for further amendments to the guidelines.

Senator XENOPHON: This perception that the government appears to be seeking to dissolve the agency through lack of funding and resources rather than through legislative change. You do not think that affects what you are doing?

Prof. McMillan : Yes, it does affect what we are doing in a number of ways. In a physical sense, it affects us because we do not have an operating office in Canberra. Although clearly we still discharge functions in Canberra—

Senator XENOPHON: Thank goodness for your home office, Professor.

Prof. McMillan : As indicated, I work in a slightly awkward arrangement but, I would hope, an effective arrangement, from my home base in Canberra but also from the Sydney office.

Senator XENOPHON: I take it your home office is not open for business? You do not have people wandering in and out—members of the public or anything like that?

Prof. McMillan : No and—

Senator XENOPHON: Because there are privacy issues with that.

Prof. McMillan : nor did we, I might say, when we had an office, because of office security arrangements. As I said, it is an awkward arrangement. There is a reduction in the number of staff. There is certainly less that we can do. But we have particularly focussed on dealing with IC reviews—that is, usually applications about agency denial—in the most effective and efficient way possible.

Senator XENOPHON: Just a couple more questions. I am a little rusty in my constitutional law having done it 39 years ago. It has been put to me that there is a legal issue here where there is an argument that the government is bound to uphold the law, and the law states that your office is the independent government agency but it is being sought to be dissolved through a lack of resources. Have you sought, or considered seeking, legal advice as to the appropriateness at law of that approach?

Prof. McMillan : No.

Mr Minogue : I might make a comment on that proposition, if I may.

Senator XENOPHON: It was a very tentative proposition.

Mr Minogue : In terms of seeking to dissolve the office by lack of resources, I think in its proper context what the government did in the budget last year was it made a decision about the future of the office and indicated its intention that that office should not continue. The privacy functions and the FOI functions should be carried on in other ways in other agencies. In terms of the funding for that, moneys were reappropriated back to the Office of the Information Commissioner as a result of the fact that the bill did not pass parliament. So government, through this budget, is respecting the fact that the bill has not passed and respects the fact that the office continues. It appropriated back to the office funding for both the privacy functions and the FOI functions for this financial year—

Senator XENOPHON: But not enough to have an office. You have the commissioner working out of home.

Mr Minogue : and for next financial year an additional $1.7 million has been appropriated in recognition of the fact that the office continues and the FOI functions continue.

Senator XENOPHON: But that funding does not include having a separate office. You still have the commissioner working from his home.

Mr Minogue : How the Office of Information Commissioner structures itself is, to some extent, a matter for it. Certainly, there is less funding. But what I should also draw in the issue of the constitutionality or otherwise, without expressing a legal view, is the functions that were transferred to the Ombudsman's office are already within its statutory functions. The functions that were transferred to the department do not need a statutory basis for the department to do. Advice, statistics and reporting are functions that a department of state can do in its capacity as a department of state. In terms of the relativities, yes, the Office of the Information Commissioner is working differently, recognising the fact that government has introduced legislation which has not yet passed and also recognising that the government made funding decisions in relation to that. I just think it is important for me to put on the record that what the government is doing is recognising the fact that the office continues, that it has reappropriated FOI related moneys back to that office for the remainder of this financial year and appropriated additional funding for next financial year in recognition of the fact that the bill has not yet passed.

Senator XENOPHON: We are still one commissioner short. I am trying to—

Mr Minogue : On that, I should also say that the money for that commissioner was transferred to the AAT. So Dr Popple, on resignation from the Office of the Australian Information Commissioner, was appointed as a senior member of the Administrative Appeals Tribunal, which has had in its jurisdiction external review of FOI matters.

Senator XENOPHON: But that is the appellant.

Mr Minogue : It is an external review tribunal and very effective at that—

Senator XENOPHON: The fact is the commissioners have an extra workload. That is acknowledged. In the absence of—

Mr Minogue : And as Professor McMillan said, they have been incredibly efficient and sophisticated about how they have gone to that task.

Senator XENOPHON: Professor McMillan, there is a processing backlog, isn't there?

Prof. McMillan : Currently we have just under 200 applications on hand. Honestly, the backlog is nowhere near as serious as it once was. For example, all new applications are now opened and allocated within between 30 to 60 days. A large number of matters are resolved quite quickly and efficiently by all the different early resolution techniques, but matters that are disputed will often take up to a year to resolve.

Senator XENOPHON: This question has been put to me by some frustrated journalists, by one in particular who was concerned about this: is there anything to suggest that politicians, departments or agencies are taking advantage of the relative lack of resources and any processing backlog to either refuse or delay FOI requests knowing that your office does not have the resources it hitherto had in order to conduct timely assessments and appeals? This is not a criticism of your office at all but what has been put to me is that there might be some who are playing the system knowing that there is a backlog there.

Prof. McMillan : I will make two points in response. Firstly, there has in my view been a general improvement in FOI administration, across government agencies over the last four years. There is much greater consistency in FOI administration across government. The second point is we certainly see instances in our IC review matters of exemption claims that are not strong.

Senator XENOPHON: Made at the last minute?

Prof. McMillan : They are exemption claims that are explained in statement of reasons as the act requires, but we go back to agencies on an informal basis and often question and test those claims. In many instances, agencies withdraw them; in other instances, they persist with the claim. Sometimes those claims are upheld on IC review matters and sometimes they are not. There is certainly room for improvement in more astute decision making by agencies. Whether that reflects a considered view to game the system and claim an exemption and let time run, I have no direct evidence of that. Certainly, I have said on other occasions that when there are delays in FOI review, it does provide an opportunity for an agency to make a decision that is rather flimsy but will survive until the external review body has the opportunity to look closely at it.

Senator XENOPHON: Thank you, and a consummate diplomat, Professor.

Senator BILYK: Why hasn't the government brought on the FOI bill in the parliament? It is dated 2014—is it not?

Senator Birmingham: As you know, we have many legislative measures before the chamber at one time and that becomes a matter of prioritisation for the government and the manager of government business, based upon what we believe will be the most effective delivery of the government's policies with the finite sitting hours of the Senate.

Senator BILYK: When you have got the numbers?

Senator Birmingham: If I can draw an analogy, one that I hope does not provoke Senator Xenophon too much, the government made a budget decision last year to abolish the National Water Commission and reallocate some of its functions to different agencies of government; a decision not dissimilar to this one. That was intended to take effect at the end of the last calendar year. That did not prove legislatively possible in that time frame. However, that legislation did pass the Senate during the budget week and the House of Representatives this week, giving effect to that budget measure. I am sure when the time in the program allows and, indeed, the chances of success look real, this legislation will be given the priority, amongst all of the other bills the government is seeking to deal with.

CHAIR: Can I clarify, you said you have got the numbers?

Senator BILYK: No, when you have got the numbers, I said.

CHAIR: Yes, meaning the numbers there—does that mean the Labor Party is—

Senator BILYK: No, I asked when it would be brought on. The minister made his response and my response to him was when you have got the numbers, question.

CHAIR: But we do not have the numbers in the Senate, as you know.

Senator BILYK: No, you do not, that is exactly right. I think you have just answered my question for the minister.

Senator Birmingham: We would welcome your cooperation on more things, Senator Bilyk, as always.

Senator BILYK: I think you have just answered my question.

CHAIR: You have just answered your own question, Senator Bilyk. That is why I was a bit confused.

Senator BILYK: No, I know what the numbers are on it, but thank you for that. Does the OAIC act oblige the government to appoint a freedom of information commissioner?

Prof. McMillan : My view is, no, but I will see if the department has an answer.

Senator BILYK: I am interested in what the obligation is under the act.

CHAIR: Again, for obvious reasons, you put officials at a difficulty—

Senator BILYK: The minister could answer.

Senator Birmingham: I think—

CHAIR: Senator Bilyk and Minister, please! You put the officials at a difficulty. That is why we do not usually allow for legal interpretations or matters of opinion to be asked of officials, and I should not have allowed the question.

Senator BILYK: Can I put the question to the minister?

CHAIR: I do not know that the minister is in a position to give legal advice either.

Senator BILYK: The minister can tell me if he is not in a position, can he not?

CHAIR: No. You do not ask questions seeking legal advice or opinions, even from ministers.

Senator RHIANNON: Chair, the member is not doing either. She can ask the question and the minister can choose.

CHAIR: Okay. Ask the question again.

Senator BILYK: The question was: does the OAIC Act oblige the government to appoint a Freedom of Information Commissioner?

CHAIR: If that is not seeking legal interpretation, I am not sure what is. But if the minister feels that he wants to answer, he can. But it is asking for a legal interpretation, which is not allowed under the standing orders.

Senator BILYK: The act either says it does or it does not.

CHAIR: Well, you should read the act and come to your own conclusions.

Senator BILYK: I am asking the minister.

CHAIR: It is asking the minister to interpret the act.

Senator BILYK: I came to the conclusion that it did.

CHAIR: Okay. That is fine. That is your conclusion.

Senator BILYK: But I want to know what the minister thinks.

CHAIR: Does the minister agree with you? I do not know. Do you, Minister?

Senator Birmingham: Senator Bilyk, it would be my understanding that the act provides for the appointment of such a commissioner, not necessarily requires the appointment of such a commissioner. But, again, if the Attorney, based on sound advice, has any information to the contrary, I am sure that will be provided on notice.

Senator BILYK: Thank you. It was not really that hard to answer, was it? What is the present caseload—

Senator Birmingham: I never suggested it was.

Senator BILYK: You did not; the chair did.

Senator Birmingham: But I do concur with the chair that standing orders and the approach to Senate estimates should, of course, be upheld.

Senator BILYK: And it was.

CHAIR: Senator, I do not make the standing orders. My role is to try and administer them.

Senator BILYK: You do interpret them quite broadly sometimes, Chair, though, let us be fair.

CHAIR: Change the standing orders; do not change the chairman.

Senator BILYK: That is a good point, Chair. I might look at changing the standing orders in regard to how chairs are allowed to interpret questions asked by senators. What is the present caseload of the OAIC?

Prof. McMillan : It is better to give the statistics for the first 10 months of this reporting year, and referring only to applications—

Senator BILYK: I just have a point of clarification, Professor. Regarding the first 10 months of the year, are you talking about the calendar year?

Prof. McMillan : No, the financial year—the reporting year. I will speak only of applications for IC review, that is, for review generally of refusals of access. In that 10-month period, the OAIC has received 304 applications for IC review. It has finalised 433 and it currently, as at the end of April, had 199 matters on hand.

Senator BILYK: Is it correct that you, as the IC, are unable to deal with all the appeals which come before you, and so are referring many on to the AAT?

Prof. McMillan : There will always be a list of matters that still require resolution. But certainly we now use more actively that power in the FOI Act to discontinue a matter so that it may be the applicant has the option of recommencing proceedings in the AAT. Just to give figures on that, in the 2013-14 reporting year, that power was exercised on 41 occasions. In the 10 months of this reporting year, it has been exercised on 56 occasions. So there has been an increase. Let me say, we always invite submissions from the parties before we make a decision to discontinue a matter, and we sometimes do not go ahead with an initial intention or proposal to discontinue a matter. We place the matter back in the IC review stream.

Senator BILYK: After having spoken to the various parties, in consultation with the parties?

Prof. McMillan : In consultation with the parties. Ultimately it is the decision of the office, but we take account of the submissions of the parties.

Senator BILYK: In the 2015 budget the government states that the OAIC will continue to process FOI appeals in the interim but that the complaints handling will now be handled by the Ombudsman and FOI policy developed by the AGD, even though the legislation under which these functions are given to the OAIC has not been repealed. This is probably one for you, Minister. Is this in compliance with the law?

Senator Brandis: Is what in compliance with the law?

Senator BILYK: The process in the interim with the funding changes that complaints handling will now be handled by the Ombudsman and FOI policy developed by the AGD, even though the legislation under which these functions are given to the OAIC has not been repealed?

Senator Brandis: Yes.

Senator BILYK: Okay. Did you seek any legal advice, or any advice on the legality of that arrangement?

Senator Brandis: Well, it is such an obvious proposition that I would not have needed to. But, as a matter of fact, whenever briefs come to me from my department, as a matter of routine, the legal implications of any recommendation are canvassed.

Senator BILYK: Has the OAIC been referring complaints to the Ombudsman?

Prof. McMillan : Yes.

Senator BILYK: Is there a legal basis for making such a referral?

Prof. McMillan : Yes. The Ombudsman has a jurisdiction to handle FOI matters—as part of its general jurisdiction, I might say—and the FOI Act provides that the OAIC may transfer a complaint to the Ombudsman, and that matter has been well notified on our website since late last year.

Senator BILYK: How many complaints have been referred to the Ombudsman?

Prof. McMillan : I will have to take that on notice.

Senator BILYK: If you could take that on notice.

Prof. McMillan : I do not have the exact figure with me. We used to get about 70 to 80 complaints per year, and the Ombudsman gave evidence the other day before the Finance and Public Administration Committee of a small increase it has received in FOI complaints.

Senator BILYK: If you could take that on notice, that would be great. Has the AGD already taken responsibility for FOI policy and the development of guidelines?

Prof. McMillan : I will allow the department to answer that.

Mr Minogue : In addition to Professor McMillan's comments or responses earlier this morning about the recent updating of the majority of the aspects of the guidelines and his intention to finalise further updates, yes, the department has been undertaking some work in relation to the general policy aspects of the FOI Act. It always had policy responsibility for FOI; that is within the Attorney's responsibilities under the admin arrangements orders. But I can say we have started being active in that space and, within the last several months, I have spoken at an FOI forum, hosted by the Australian Government Solicitor with the Privacy Commissioner also speaking at that function, and I have been involved in at least three meetings with agencies in relation to specific FOI matters on which they sought advice, or indeed systemic issues—and that is just me personally; the team has been doing other work through their normal engagement with agencies, both at a policy level and at a practitioner level.

Senator BILYK: Where was that forum, Mr Minogue?

Mr Minogue : I am trying to remember the location; it was here in Canberra. It was at the Hotel Realm, probably a month or so ago.

Senator BILYK: Who else was at that forum? Who was invited to that forum?

Mr Minogue : It was conducted by the Australian Government Solicitor, who gives legal advice to agencies on FOI matters. It was hosted by the CEO of AGS, Ian Govey. The keynote speaker was the Privacy Commissioner, and I spoke following Mr Pilgrim. Then there were a range of speakers from a legal advice or practitioner perspective, and I think the audience were either legal advisers or FOI practitioners in agencies.

Senator BILYK: Has the AGD developed any new explanatory materials regarding the FOI Act?

Mr Minogue : No we have not.

Senator BILYK: Has the AGD been working on changes to FOI guidelines?

Mr Minogue : No, and the reason for that is, as Professor McMillan said, the majority of the guidelines were only recently updated, and the office has plans to update the remaining chapters.

Senator BILYK: Thanks. Chair, that is all I have got there.

CHAIR: Senator Rhiannon.

Senator RHIANNON: Professor McMillan, why do you work at home? Were you refused an office in Canberra?

Prof. McMillan : No. The order of events was that the Canberra office was closed in early December and at a time when I expected that my term would end on 31 December. It was then unclear for some months thereafter as to whether the legislation would be enacted by the parliament, and so while I had a brief discussion with the department and a more extended one with my own office about working arrangements, it was always uncertain what my continuing tenure was and it seemed impractical to undertake substantial work to establish new office arrangements. I add that my term expires in another five months, at the end of October, which is why I have not actively sought to make some alternative arrangement. In the meantime I have instituted a working arrangement that I think is effective.

Senator RHIANNON: Was it required for your home office to be set up by the department to allow you to do all this work?

Prof. McMillan : No. I had support from the OAIC and our IT section, which is located within the Human Rights Commission. They visited my home and helped me set up an effective technology environment. But I go to Sydney in alternate weeks and arrange my work accordingly.

Senator RHIANNON: So you are still full-time?

Prof. McMillan : Still full-time.

Senator RHIANNON: How many days do you spend in Sydney and how many days in Canberra?

Prof. McMillan : I try to do an alternate week arrangement. In the weeks that I go to Sydney I usually try and work there for three days, sometimes it has been four. I also have other responsibilities in Canberra—I inspect documents, I attend meetings, I give presentations.

Senator RHIANNON: I noticed in some of the coverage about these very unusual arrangements that we have that reference was made to how the work is being carried out, specifically with regard to section 61 of the Constitution which, as you are probably aware of, sets out that the executive government's power extends to the execution of the laws of the Commonwealth. Are you executing, giving effect to implementing—however we want to define the word 'executing'—the law that covers the OAIC?

Prof. McMillan : If I can speak here both as a statutory office holder and also as a former public law academic, I am well aware of the requirements of the Constitution and of my statute, and I have never had any personal concern about whether I have failed to discharge my statutory responsibilities under the statute and under the broader constitutional framework.

Senator RHIANNON: Do I conclude from that that you are saying that these unusual arrangements are not impacting on your statutory duties?

Prof. McMillan : I gave a slightly convoluted answer because I wanted to avoid getting into giving an opinion on constitutional arrangements. But let me say quite honestly, I am satisfied as a statutory office holder that I am discharging my functions in a lawful fashion.

Senator RHIANNON: Did anyone from your office attend the International Conference of Information Commissioners in Chile last month?

Prof. McMillan : No.

Senator RHIANNON: Have you attended previous meetings of this body?

Prof. McMillan : Yes. The international conference is held every two years, and I had previously attended a conference in Germany in 2013 and in Ottawa, Canada, in 2011.

Senator RHIANNON: What is the effect of this lack of representation at such gatherings, please?

Prof. McMillan : I attended the earlier sessions because I felt that it was useful in an international context that there be contact between an Australian information commissioner and the information commissioners of other countries. I found the links that I established to be vibrant and useful. Equally, I decided not to attend the conference this year and to focus on other responsibilities and I am satisfied, as much as I can be at a personal level, that I am still discharging the responsibilities of the office.

Senator RHIANNON: Was that influenced by the expected change; that you shortly did not expect to be in the job?

Prof. McMillan : Yes, Senator. If the circumstances of the office had not changed then I probably would have sought permission from government to attend the international conference. I decided not to seek permission and to instead remain in Australia and continue in discharging responsibilities here.

Senator RHIANNON: You have replied to a couple of senators who have asked issues about the backlog and I just wanted to clarify some matters. I understood that the backlog of review applications—you said 200 at one point and then 199.

Prof. McMillan : Yes, sorry, I was rounding up at one stage.

Senator RHIANNON: Understandable. What I have in my notes, which said, 'appears to be a contradiction,' so I just want to clarify it. This was in your opening statement so I may have got it wrong. Earlier on you said you no longer deal with FOI complaints, they are referred to the Ombudsman.

Prof. McMillan : Correct.

Senator RHIANNON: Then later I had that you were principally on FOI matters. So, could you clarify, please?

Prof. McMillan : As Information Commissioner I have responsibilities under the FOI Act, the Privacy Act, and in relation to information policy advice to government. But I concentrate on my responsibilities under the FOI Act at the moment, though I am still in consultation with Commissioner Pilgrim and other staff members about other matters and we still hold weekly executive meetings. I participate in the work but I concentrate on FOI review functions, but they are being discharged differently to the way they were being discharged, for example, a year ago.

Senator RHIANNON: Just going back to the numbers. At one point when you were talking about the numbers—I think it was when you said the 200 figure and you said of the 200 applications, 'it is not as serious as it was'. It still sounds like a lot. It still sounds like to the person who is waiting that there are a lot of people waiting.

Prof. McMillan : The number in the queue at the moment, 199, has to be seen in context of a steady workload into the office of, on average, 30 IC review applications per month. It has to be seen in the context of a backlog that was close to around 350 at one stage. Also, in the legislative context, it will necessarily take a matter of weeks to resolve any new matter. It will quite often take many months to resolve a disputed matter. I have said on other occasions that there is no doubt that, since the amendments to the FOI Act in 2010, there has been a substantial increase in applications for IC review and also for FOI requests that we classify as more complex. For example, they relate to a request for policy advisings in government. This is partly a response to the removal of application and review fees in the 2010 amendments.

I have said on other occasions and in submissions to government that, whatever transpires in the future, the FOI scheme needs amendment so that it better adjusts the tension and the pressures that government agencies feel, and the expectations and aspirations of applicants, and reflects also other measures available to people to obtain information from government other than through FOI requests. I agree that circumstances are not ideal at the moment, but, independently of legislation before this parliament, I have advocated the need to review quite a number of features of the FOI arrangements.

Senator RHIANNON: Professor, how many matters have you passed to the AAT in the last 12 months?

Prof. McMillan : In the last 10 months of this reporting year, we have discontinued 56 under a provision of the act that says I can discontinue the matter and the applicant can then commence the proceedings afresh in the AAT. We do not refer the matter to the AAT; we simply discontinue. The short answer is 56 in the last 10 months.

Senator RHIANNON: Is it possible, out of those 199, to inform the committee how many are from individuals trying to ascertain information about their own circumstances and how many are from organisations?

Prof. McMillan : I do not have those figures at hand, and my guess is that we do not have those.

Mr Pilgrim : No. We will take on notice whether we can do that.

Senator RHIANNON: Thank you. If the government wishes to eliminate what it describes as a two-level merits review for FOI decisions, are there alternatives to what is proposed in the FOI amendment bill? Can you comment about the structure of such arrangements in other states? Are there other ways to do this?

Senator Brandis: That really asks the witness to reflect on alternatives to the government's policy, and therefore it really is a question about policy. I would respectfully suggest that that is not a proper question.

CHAIR: If that is the case, it is not.

Senator RHIANNON: Thank you, Attorney-General. Professor, how have the developments of the last 12 months impacted on the office generally? I also want to go to the privacy functions. To what degree has that been limited? How has it changed?

Prof. McMillan : My short answer is that, clearly, the arrangements are, as I have said, awkward in some respects and undesirable, but at the same time the office has focused intensely on how to discharge its statutory responsibilities. In relation to IC review matters, I think we have been very successful in dealing with those now on a more streamlined and efficient basis. There are other activities I have undertaken in the past that the office does either less or not at all at the moment. Complaint investigations is one example.

Senator RHIANNON: Thank you.

CHAIR: Thank you, Senator Rhiannon. We will resume at five past two and will go straight on to the National Archives of Australia.

Senator Brandis: Before you adjourn, I wonder if I could just add one small piece of information to an answer I gave in the arts estimates yesterday in answer to some questions from Senator Bilyk. During the course of questions on the subject of appointments, I did foreshadow an announcement quite soon that a senior person with Labor Party connections would shortly be appointed to a very senior role within my portfolio, and apparently that got some bored journalists a little excited. So I am delighted to inform the committee that this morning His Excellency the Governor-General has agreed to the government's recommendation to appoint the Hon. Robert McClelland, a former Attorney-General, as a Justice of the Family Court of Australia. Justice McClelland will be sworn in on 16 June at the Sydney registry, where he will replace the Hon. Stuart Fowler. The government and I wish Justice McClelland well in what will no doubt be a distinguished judicial career.

CHAIR: Thank you. Can I add the congratulations of the committee to that. I am quite sure Justice McClelland's appointment is related to his ability and his competence, rather than his Labor Party connections.

Senator Brandis: It has got nothing to do with his Labor Party connections. He is a very competent lawyer, and he served the Australian people as the Commonwealth Attorney-General for some seven years, which is not an irrelevant fact either.

Proceedings suspended from 13:06 to 14:06