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Legal and Constitutional Affairs Legislation Committee
20/10/2015
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner

[12:04]

ACTING CHAIR ( Senator Jacinta Collins ): Do you have an opening statement that you would like to make?

Mr Pilgrim : No, I do not have an opening statement.

Senator JACINTA COLLINS: You are here in your capacity as Acting Australian Information Commissioner. Are you also the Privacy Commissioner and the Freedom of Information Commissioner at the moment?

Mr Pilgrim : I am the Acting Australian Information Commissioner. My reappointment as the acting commissioner commenced yesterday for three months, from 19 October. I was reappointed for a 12-month period as the Australian Privacy Commissioner, so I hold that position as well.

Senator JACINTA COLLINS: At what point in time does that one expire?

Mr Pilgrim : That was a 12-month appointment from 19 October as well. I am not the Freedom of Information Commissioner. However, I should point out that as Acting Australian Information Commissioner I exercise the functions under the Freedom of Information Act as well as under the Privacy Act.

Senator JACINTA COLLINS: You refer to the functions under the act; is there also a requirement under the act for that position to be filled?

Mr Pilgrim : That is a question I think you would best direct to the department.

Senator JACINTA COLLINS: I am in the hands of the minister here as to whether we want to deal with questions to the government in relation to the Office of the Australian Information Commissioner now or whether we want to wait until we are with the department.

Senator Brandis: We are really in your hands, because you can ask whatever relevant questions you choose and we will deal them, assuming them to be proper questions, as well as we may.

CHAIR: I think what Senator Collins is saying is that this session of the estimates is with the Office of the Australian Information Commissioner. We have a session immediately following this with the general department. But it seems to me that it would be wise to ask Senator Brandis now, while we are on the job.

Senator JACINTA COLLINS: It is not necessarily a question to Senator Brandis. As Mr Pilgrim indicated, it may well be for the department. Is there are a requirement under the act to fill the position of Freedom of Information Commissioner?

Senator Brandis: Strictly speaking, Senator Collins, that is a question—

Senator JACINTA COLLINS: It is not me. This is Mr Pilgrim's comment.

Senator Brandis: But you have adopted it and put it as a question. Strictly speaking, that is a question of law. There is an act that creates a statutory office, and it is for the executive government to fill that statutory office. Whether there is an obligation under the act to fill the statutory office I am not in a position to tell you, because I do not have the act readily to hand. The act creates an office. But, in any event, the context here is that in the 2014 budget, as a measure to reduce the size of government, the government decided to streamline the external merits review system. In furtherance of that policy it proposed to abolish the Office of the Australian Information Commissioner and transfer its functions to other agencies. However, that act has not been through the parliament, because it has not commanded the support of a majority in the Senate.

Senator JACINTA COLLINS: I appreciate all of that background, Minister.

Senator Brandis: That is the context here.

Senator JACINTA COLLINS: The question I asked is: does the act provide that the executive government fill the position?

Senator Brandis: That is not the question you asked. You asked whether there was an obligation to fill the position, and that is a question of law. I would have to look at the act.

Senator JACINTA COLLINS: Can the department assist?

Senator Brandis: No, because you cannot ask anyone questions of law. You can ask what the act provides. You can ask what the act says, and we will dig out a copy of the act and we will read you the relevant provisions if—

Senator JACINTA COLLINS: That would be very helpful.

Senator Brandis: Do we have a copy of the act here?

Mr Minogue : I have a copy of the Freedom of Information Act. But—if I can respond consistent with the Attorney's response to your question—strictly speaking that is a question of law, which, as the Attorney says, we cannot go to. I think the position with the bill being still before the parliament—

Senator JACINTA COLLINS: I am just asking what the act provides for.

Mr Minogue : As the Attorney said, the act creates an organisation with three commissioners.

Senator JACINTA COLLINS: It does provide that those three positions be filled?

Mr Minogue : No. It creates an organisation with three commissioners.

Senator JACINTA COLLINS: I will look at the act myself.

Senator Brandis: I would recommend you do that.

Senator JACINTA COLLINS: Again, I should say, on this particular issue, I will look at it myself.

Mr Pilgrim : If I may add, it is in the Australian Information Commissioner Act, not in the Freedom of Information Act.

Senator JACINTA COLLINS: Fine.

Mr Minogue : To give you more detail, section 5(1) of the Australian Information Commissioner Act2010 provides that:

The Office of the Australian Information Commissioner is established by this section.

Section 5(2) says:

The Office of the Australian Information Commissioner consists of:

(a) the information officers; and

(b) the staff …

Then, most relevantly, section 6 states.

Each of the following is an information officer:

(a) the Information Commissioner;

(b) the Freedom of Information Commissioner;

(c) the Privacy Commissioner.

Senator JACINTA COLLINS: That is in terms of who are information officers, and you are linking that to what earlier provision?

Mr Minogue : Section 5.

Senator JACINTA COLLINS: What does section 5 provide?

Mr Minogue : Section 5(1) provides:

The Office of the Australian Information Commissioner is established by this section.

That is the creation of the statutory entity.

Senator JACINTA COLLINS: Including the three information officers?

Mr Minogue : Subsection (2) says:

The Office of the Australian Information Commissioner consists of:

(a) the information officers …

They are relevantly identified as the Information Commissioner, the Freedom of Information Commissioner, and the Privacy Commissioner.

Senator JACINTA COLLINS: Yes, the three information officers.

Mr Minogue : Yes.

Mr Pilgrim : Mr Pilgrim, let me go back. Your appointment on 19 October was for three months as the Acting Information Commissioner—

Mr Pilgrim : That is correct.

Senator JACINTA COLLINS: and 12 months as—

Mr Pilgrim : The Privacy Commissioner.

Senator JACINTA COLLINS: It is the Privacy Commissioner that is intended, under the bill, to be absorbed into the Human Rights Commission; is that correct?

Mr Pilgrim : To be located within the Human Rights Commission, yes.

Senator JACINTA COLLINS: How are your negotiations going regarding funding?

Mr Pilgrim : There are no current negotiations undergoing at the moment about funding. We have the funding that was allocated to us in the current budget, and we are working with that. That funding has been provided for this current budget period, subject to what happens with the bill that is before the parliament.

Senator JACINTA COLLINS: This is the $1.7 million we traversed previously?

Mr Pilgrim : That is part of the budget for the 2015-16 financial year. We received an additional $1.7 million to assist us undertaking a streamlined FOI function.

Senator JACINTA COLLINS: Do you have an understanding about how long this funding is expected to be required for? Is it just simply for the financial year?

Mr Pilgrim : The funding we have at the moment is for the current financial year.

Senator JACINTA COLLINS: Is it the amount provided to deliver the streamlined service until the middle of 2016?

Mr Pilgrim : It is. That is the $1.7 million, but we have in total $8.5 million out of appropriation, because the money that was originally provided to go to the Human Rights Commission was returned to the OAIC, plus there is some additional funding we received in the budget process.

Senator JACINTA COLLINS: How does that compare to the funding when you were not operating on a streamlined basis?

Mr Pilgrim : The appropriation for the 2013-14 financial year for the OAIC was just slightly over $10 million.

Senator JACINTA COLLINS: What is happening with staffing?

Mr Pilgrim : In what context?

Senator JACINTA COLLINS: What are the staffing arrangements that apply to the streamlined operation whilst we are in this legislative limbo?

Senator Brandis: Are you asking about staff numbers? Is that the point of your question?

Senator JACINTA COLLINS: In part.

Senator Brandis: What else are you asking?

Senator JACINTA COLLINS: There would be staffing issues associated with Mr Pilgrim performing at least two, possibly three, streamlined roles. There would be staffing issues associated with what offices are currently operating, and there would be—

Senator Brandis: Senator Collins, these may be things that you have thought about, but you need to make the witness aware of what specifically you want him to tell you. You could ask about numbers; you could ask about gradations, I suppose, but what is it specifically you want to know?

Senator JACINTA COLLINS: I am asking in general terms first, and I can come to more specific—

Senator Brandis: That is too general. We are not sure what you are after. Can you make your questions a little more specific, please?

Senator JACINTA COLLINS: I think Mr Pilgrim would respond quite easily, without your assistance, to a general question, which is: what are the staffing implications of operating now under the streamlined funding arrangements and functions that presently apply? I can go more specifically, as I need to, to the specifics of staffing numbers and other issues, but they are issues I will get to, Minister—and can I thank you for your assistance.

Senator Brandis: I am just trying to help, but the more particular you make the questions, the less confusion there will be in the answers. Why don't we start with staffing numbers? Would that be a good place to start?

Senator JACINTA COLLINS: It could be, yes.

Mr Pilgrim : In response, on staffing numbers: currently we have 61.9 full-time-equivalent staff covering the whole of the operations of the OAIC. That is in comparison to the figures we had in May 2014 prior to the announcement, where we had 83.01 full-time-equivalent staff for the office.

Senator JACINTA COLLINS: 83.01?

Mr Pilgrim : Yes. Sorry to be precise!

Senator JACINTA COLLINS: That might be too precise for the minister.

Mr Pilgrim : We can round it down if you like.

Senator JACINTA COLLINS: I would like to know who contributes to the 0.01 factor.

Mr Pilgrim : Sometimes so would I!

Senator JACINTA COLLINS: You have given me that comparison. You say 'covering the whole of the operations'. Can you break that up for me?

Mr Pilgrim : I can, slightly problematically, so I apologise for this. I will move to a headcount because I have the figures for the breakdown of each of the functions by a headcount. Currently, we have 42 people allocated to undertake the privacy functions, and I can go into a bit more detail in a moment about that. We have approximately nine staff undertaking the FOI IC review function, and I stress that it is just the IC review function. We have approximately another 20 staff who we would generalise as 'support staff', but that includes, I should mention, the four staff in the executive—me, the two assistant commissioners and our assistant. Those 20 people also include our staff working in our communications and media area—there are approximately six there—and that includes work on our website and our publications. It also covers the staff who handle our inquiries line and our legal work.

Senator JACINTA COLLINS: And the education function that previously existed? What is happening there?

Mr Pilgrim : We still do undertake work in terms of education across several of our functions. Primarily we have been focusing on the privacy function in recent months because, as you would be aware, last year there were significant changes to the act, so a lot of our activities in the limited education work we undertake were in terms of our privacy functions.

Senator JACINTA COLLINS: I am interested particularly in relation to your FOI education functions with regard to Commonwealth agencies. What has happened there?

Mr Pilgrim : In terms of Commonwealth agencies, we have not undertaken any specific programs of education work. We rely on the current guidelines that were developed by the office some time ago to provide guidance to government agencies in terms of the application of the FOI Act. We look to decisions that we make and publish to provide, again, guidance about how I—and the commissioners before me—interpret matters in terms of IC reviews. We have on occasion, I think, participated—and I might look to one of my colleagues here—in some of the work that has been undertaken through AGS in educating the broader public sector.

Senator JACINTA COLLINS: Yes, I would like you to expand on that, please.

Ms Toohey : We participate in a number of forums with the Australian Government Solicitor, both in Sydney and in Canberra. AGS run the forums, but we certainly participate and generally have a standing part of the session there. We also issue a newsletter on a regular basis, which outlines new decisions that we have made under the FOI Act, and obviously we have regular publication material about the OAIC review decisions that we put out.

Senator JACINTA COLLINS: I will come back to this point, because my time is finishing at the moment, particularly on some of the staffing issues. With respect to these AGS forums, are they broad forums or are they forums specifically dealing with the handling of FOI matters?

Ms Toohey : They are generally FOI and privacy forums, so they are specifically for staff that work in agencies that handle FOI requests and privacy matters.

Senator JACINTA COLLINS: How many of those have occurred?

Ms Toohey : Recently? Certainly this year we have attended at least three. They are generally quarterly.

Senator JACINTA COLLINS: And you would be attending each one? Would that be your understanding?

Ms Toohey : I and/or my staff attend those.

Senator JACINTA COLLINS: Would I need to ask the AGS which agencies are participating?

Ms Toohey : Yes, I do not have attendance lists. Sorry.

Senator JACINTA COLLINS: Chair, I will come back to my questions.

Senator RHIANNON: I want to take up some issues to do with FOI and the Office of the Australian Information Commissioner, OAIC. I will just start with some letters that I was given. The correspondence started on 17 August, with a letter to the Attorney-General from the International Commission of Jurists, and the response from the office of the Attorney-General is dated 9 September and signed by Paul O'Sullivan. I found that quite informative about some issues that I wanted to raise here. First, in the letter from Mr John Dowd, he stated—

Senator Brandis: Sorry, Senator. Do you have a copy of that letter?

Senator RHIANNON: Yes, certainly. There are the two letters there. It is your response to the ICJ letter. The ICJ letter, signed by Mr John Dowd, states:

… while the law requires that the statutory body continue in existence, it is a clear breach of the doctrine of the Separation of Powers for the executive branch of government to prevent the ongoing effective discharge of the functions of that body.

My question is: do you agree with that statement of principle?

Senator Brandis: I have not seen the letter, so let's wait until we see the context of what Mr Dowd is saying. But all of this, of course, is against the background—I think I mentioned this before you arrived in the hearing room—of the government's announced intention to legislate to abolish this particular position so as to streamline the process. So I think—if I may say so, with respect—it is a bit of a false comparison to equate interference by the executive government in the performance of a statutory agency with transitional arrangements pending parliament's decision to abolish that statutory agency.

Senator RHIANNON: But surely, while that body exists, there is the requirement that it be given the resources to undertake its work.

Senator Brandis: Senator Rhiannon, I am not sure whether you were here, but Mr Pilgrim did run through the budget and the financial resources that have been provided during the transitional period, including $1.7 million in this financial year and other appropriations that, if you like, I am sure Mr Pilgrim would not mind reciting for you again.

Senator RHIANNON: Maybe just to stick with you for a moment, Attorney-General: the letter from your department did appear to be significant—

Senator Brandis: Well, I have not seen a letter. I am not going to be answering questions about a letter I have not seen.

Senator RHIANNON: I appreciate that, but I have not finished. I thought it would be useful, while we are waiting for the letter, to explore the background of why I am asking the question.

Senator Brandis: Well, I do not need to know. You ask your question and I will answer it. The reasons you choose to ask your question is a matter of interest only to yourself. This is an interrogative process, not a stream of consciousness.

Senator RHIANNON: I do not think that was very necessary, because what I was about to say—and in some ways you have just indirectly answered it—is that the letter did read as though there had been a change in thinking, and that is what I was trying to explore: whether there was a change in thinking.

Senator Brandis: I am extremely happy and ready and willing and able to answer any question you want to put to me, but if it is a question about a letter you will have to wait until I see the letter.

Senator RHIANNON: Thank you. I will go on to another matter, which takes up some questions on notice that I had asked previously and would just like some clarification on. The numbers of these questions on notice are—

Senator Brandis: Sorry—I do not mean to interrupt your train of thought—but I have the letters now, so if you want to go back before you leave that topic—

Senator RHIANNON: Okay; thank you. The O'Sullivan letter reads as though there has been a change in thinking.

Senator Brandis: Do you want to direct my attention to any particular passage?

Senator RHIANNON: I gave you that quote, which—

Senator Brandis: Which paragraph?

Senator RHIANNON: It comes from the second page, third paragraph from the top, second line:

… while the law requires that the statutory body continue in existence, it is a clear breach of the doctrine of the Separation of Powers for executive branch of government to—

Senator Brandis: No, I think you are confusing yourself, Senator. That is not in the letter from Mr O'Sullivan; maybe it is the letter—

Senator RHIANNON: No, sorry: it is in the ICJ letter. That is what my question was about in the first place.

Senator Brandis: Sorry; you referred me to Mr O'Sullivan's letter.

Senator RHIANNON: I apologise.

Senator Brandis: That is fine. So, in the letter from Mr Dowd—on page 2, is it?

Senator RHIANNON: Yes, page 2, third paragraph. It starts on the second line.

Senator Brandis: Yes; I am with you now. Let me just read that. Okay.

Senator RHIANNON: When you then read your response to this letter, you gain an impression that the thinking of the government may have changed. So, my first question is—

Senator Brandis: I am sorry: before we go on, what part of Mr O'Sullivan's letter on behalf of my office are you referring to?

Senator RHIANNON: Again, on the very top of page 2: 'As the bill is still before the parliament, the OAIC remains responsible for privacy and FOI regulation and the government is ensuring those arrangements are in place for the continued exercise if the IC functions'—

Senator Brandis: It actually says 'that' arrangements, not 'those' arrangements. That is an important material difference. Nevertheless, I have the sentence. Now, what is your point, Senator?

Senator RHIANNON: My point is that that is very different from how it has been presented from your government in past months with regard to these officers.

Senator Brandis: On what basis do you say that? What particular statements on behalf of the government are you referring to?

Senator RHIANNON: I am referring to the run-down of these officers and the lack of resources for them to undertake their work, considering that your legislation has not gone through the Senate, that those officers have continued to exist but have barely been able to do their work.

Senator Brandis: There is a series of false premises in your—it was not even a question, really; it was a statement. But I will assume you are inviting me to respond. There is a series of false premises in what you put to me. First of all, the officers are in being until the legislation passes the parliament. Secondly, the functions are being discharged by Mr Pilgrim as the acting commissioner. Thirdly, I understood you to be saying that the functions are being discharged at a lower level. That is not right. Fourthly, you said that there had been a depletion of resources. Had you been in the hearing room when Mr Pilgrim ran through the budget available to him, you would have heard what resources are being provided. But, nevertheless, all of that having been said, I think that you would allow, Senator Rhiannon, that during a period when the statutory repeal of a body is imminent it is quite sensible to configure the budget in such a way that reflects the fact that its statutory repeal is imminent.

Senator RHIANNON: You seem to be stretching the definition of 'imminent'. You have been aware—

Senator Brandis: It is in the hands of the Senate. I accept that. But your broader point, if I understand you correctly, that there is some variance between the principle as expressed by Mr Dowd and the way that these arrangements have been made by the Commonwealth I do not accept at all. What Mr Dowd says is not a description of the arrangements that the government has put in place for this body in the period between the current budget and its expected statutory repeal.

Senator RHIANNON: It would be good to go on to pin down the details here. Remaining in that paragraph at the top of page 2, in the letter from Mr O'Sullivan, it talks about FOI regulation. What is that referring to, please?

Senator Brandis: What the paragraph says, so that we may understand it in full, is this:

As the Bill is still before the Parliament, the OAIC remains responsible for privacy and FOI regulation and the Government is ensuring that arrangements are in place for the continued exercise of the Information Commissioner functions.

By the way, that is a complete refutation of the assertion made by Mr Dowd:

In July 2015 Mr Timothy Pilgrim PSM was appointed as the acting Information Commissioner for a three-month period—

and that has now been renewed, as you have heard—

while the Government considers options for the future of the Information Commissioner position. Mr Pilgrim is performing the functions and exercising the Commissioner powers under the Privacy Act 1988, Freedom of Information Act 1982, and the Australian Information Commissioner Act 2010.

That is the position. What is your question?

Senator RHIANNON: My question is: what is FOI regulation referring to at that point?

Senator Brandis: It is referring to the FOI functions provided for by the act.

Senator RHIANNON: So, it refers to all aspects of the act. Thank you. Then it says in the last sentence in that same paragraph:

Mr Pilgrim is performing the functions …

What are the Information Commissioner functions referred to in that passage? I am interested in whether they differ in any way—and, if they do, in what way—from the OAIC responsibilities for FOI regulation. Could you clarify, please?

Senator Brandis: I think the paragraph speaks for itself but, given that you suspect there may be something that is not apparent from the face of what I have quoted to you, I will consult Mr O'Sullivan, who is the author of the letter, to inquire of him whether or not what you are putting to me is correct. So I will take that question on notice.

Senator RHIANNON: I understand that the first assistant secretary, Mr Minogue, may have assisted with that letter, so would he be able to expand on that letter?

Mr Minogue : That letter, I suspect, would have come through the department in the normal process. In terms of expanding on it, I think that the way the Attorney has described it is accurate. The FOI Act provides for rights and responsibilities, and the Information Commissioner is responsible for overseeing the framework as to how the Commonwealth discharges its responsibilities there. I think the reference to 'the regulation' and 'the functions' is a generic reference to the act, how it is exercised and the rights and responsibilities. What Mr Pilgrim has said, previously, was how they are going about those functions.

Senator RHIANNON: Can you explain how they differ from the OAIC responsibilities for FOI regulation? Can you clarify that, please?

Mr Minogue : I am misunderstanding. The OAIC has responsibilities and powers under the act.

Senator RHIANNON: But we are referring here to the Information Commissioner.

Mr Minogue : The way the act is structured, the Information Commissioner has certain powers as the head of the OAIC, just the same as every agency has a CEO or secretary who is the accountable officer in public governance legislation. Apart from those head of agency powers the Privacy Commissioner, the Information Commissioner and the Freedom of Information Commissioner were each able to exercise each other's powers but for those head of agency functions. Mr Pilgrim is now the acting Information Commissioner, so he can exercise all the powers of all the commissioners.

Senator RHIANNON: The letter from Mr Dowd also takes up the issue of statutory mandate. In Mr O'Sullivan's reply, that is not covered. It would be useful for that to be clarified.

Senator Brandis: What are you referring to in the letter from Mr Dowd? What words that Mr Dowd uses are you inquiring about?

Senator RHIANNON: I will come back to that one, Attorney-General. I have lost my paragraph number and, rather than hold us up, I will move on to other questions.

CHAIR: I am afraid your time has finished, but you can come back later.

Senator XENOPHON: Attorney, given that Prime Minister Turnbull promised to be truly consultative and support 'open government', has any consideration been given to reconsidering the legislation before the Senate to abolish the Office of the Australian Information Commissioner?

Senator Brandis: I am glad you acknowledge how committed to being very—

Senator XENOPHON: I quoted from Mr Turnbull.

Senator Brandis: Well, it is true.

Senator XENOPHON: There is a distinction. I am sure he means it but I just quoted him.

Senator Brandis: Thank you for saying so, Senator Xenophon, because indeed he does mean it. Mr Turnbull is very committed to being very consultative and is a great believer in open government.

Senator XENOPHON: And a truly Liberal government.

Senator Brandis: It should not be forgotten that as a brilliant young man Mr Turnbull was the successful counsel in the famous Spycatcher case. So Mr Turnbull has a long track record of commitment to these values.

Senator XENOPHON: That is right—and a truly Liberal government consistent with a Nationals agreement, as Senator Cameron reminded me. Has any consideration been given to at least amend or in any way change policy positions in respect of the current bill before the Senate to abolish the Information Commissioner?

Senator Brandis: Mr Turnbull made it clear shortly after he became the Prime Minister, that the policies of the pre-existing government remain the policies of the pre-existing government unless—

Senator XENOPHON: Of the current government, you mean.

Senator Brandis: The policies of the Abbott government remain the policies of the Turnbull government unless a decision is made to change them.

Senator XENOPHON: Attorney, did you see the piece in The Australian yesterday by Sean Parnell, the FOI editor? Are you familiar with that?

Senator Brandis: I did not see Mr Parnell's piece.

Senator XENOPHON: In Mr Parnell's piece he asserts:

A lack of political support for FOI is prompting ministerial offices and agencies to clam up. Broad exemptions covering deliberative matters and cabinet confidentiality are used more often, internal review is less fruitful, and the demise of the OAIC has seen a return to adversarial external reviews — pitting applicants against government lawyers — which act as a deterrent.

He paints a fairly bleak picture that the FOI regime and the manner in which it has been dealt with has led to a much more adversarial approach, which seems to go against Prime Minister Turnbull's position that there will be an open government under him. Do you think those criticisms by Mr Parnell are fair?

Senator Brandis: I have not read the article. I will trust you to have given me an accurate quotation from the article. No, I do not agree.

Senator XENOPHON: He says some things that are quite critical of you, but I am not going to read them out. I thought that would be unnecessary and ungracious of me.

Senator Brandis: That is fine. You are a very gracious man, Senator Xenophon. I am often in awe of your graciousness.

CHAIR: Except when he sues other senators.

Senator Brandis: He has never sued me. Mr Parnell is entitled to his views. I do not share them.

Senator XENOPHON: I have not issued proceeding against any of my Senate colleagues, Senator Macdonald.

CHAIR: I apologise.

Senator XENOPHON: There is no need to apologise. There is a provision under the Defamation Act that covers how these matters are dealt with using concerns notices.

Senator Brandis: I have always found you to be a most delightful colleague, Senator Xenophon.

Senator XENOPHON: You know you are going to ruin my vote in South Australia?

Senator Brandis: I am very Machiavellian.

Senator XENOPHON: You are! The serious point is this: you have a situation where independent commentators are saying the FOI system has become much more adversarial.

Senator Brandis: Which independent commentators?

Senator XENOPHON: Sean Parnell.

Senator Brandis: Is he an independent commentator? I thought he was a journalist.

Senator XENOPHON: In my eyes he is. Some journalists can be independent.

Senator Brandis: Is he not the FOI editor of The Australian? How is he an independent commentator when he is, in effect, a stakeholder?

Senator XENOPHON: In my eyes he is independent.

Senator Brandis: I do not agree with that characterisation. He is entitled to his views. I do not share them. He comes at this debate with a particular interest, as he is perfectly entitled to do. But I think it is a bit rich to say he is an independent commentator.

Senator XENOPHON: Perhaps Mr Pilgrim can tell us this: has there been an increase in FOI appeals going to the AAT? It seems to me the very valuable role the Information Commissioner's office has had is to head those matters off, to deal with them expeditiously, to deal with them in a less adversarial manner, obviating the need to go to the AAT—with some significant cost savings for taxpayers.

Senator Brandis: I will let Mr Pilgrim reply of course, but before he does I will just make a point about the AAT. The whole point of the AAT is to provide a non-adversarial forum. The AAT is constructed—and the whole philosophy of the AAT is—to have a dispute resolution forum in relation to the review of ministerial or administrative decisions which is not characterised by an adversarial style of dispute resolution.

Senator XENOPHON: Mr Pilgrim, are there more matters going to the AAT? Are you aware of a trend where an increasing number of matters are going to the AAT?

Mr Pilgrim : If we are talking about appeals to the AAT over decisions made by my office, I would need to check those figures—or perhaps we would have to approach the AAT for those exact figures. I can give you the figures on how our office has been going in resolving FOI matters that have come to us. Would you like some of those?

Senator XENOPHON: Please provide them on notice.

Mr Pilgrim : I am happy to either provide them on notice or provide them now.

Senator XENOPHON: If it will take less than a minute, that would be okay—I just want to sneak one more question to the Attorney in before the lunch break.

Mr Pilgrim : I will give you a brief idea. We finalised 482 Information Commissioner reviews in the financial year just finished. Of those, 61 were closed so that the applicant could go to the AAT. But the figure I would like to mention is that there were 119 matters that were conciliated with agencies through the work of our officers. So we are seeing an increase in the matters that we are able to conciliate with agencies without them having to go to formal decisions.

Senator Brandis: That, by the way, Senator Xenophon, is a success story—obviously. Far from the situation as characterised by some members of the committee, these streamlined arrangements seem to be working very well.

Senator XENOPHON: That is predicated on having the Information Commissioner in place.

Senator JACINTA COLLINS: It is predicated on a few other things too.

Senator XENOPHON: Attorney, I just want to put this question to you on notice—

Senator Brandis: Senator Collins is catching up with the conversation at this point. Go ahead, Senator Xenophon.

Senator JACINTA COLLINS: I am afraid your commentary just belittles you, Minister.

Senator XENOPHON: Has the government done a cost-benefit analysis of the potential downside risks of abolishing the office in the longer term, including the cost of having additional FOI appeals in the AAT? Is it not the case that the government risks dramatically driving up the cost of FOI appeals by abolishing the Office of the Information Commissioner which can deal with these matters at a fraction of the cost to government?

Senator Brandis: No, I do not agree with that at all. In fact one of the reasons for this policy was to remove what was a cumbersome arrangement where there was a double level of merits review unique in Commonwealth administration, where all other decision making is reviewed by a single level of merits review through the AAT. It is, among other things, part of the government's successful policy of consolidating in a uniform structure within the AAT single-level merits review applying uniform dispute resolution principles—non-adversarial principles, by the way—across the whole of government.

Proceedings suspended from 12:45 to 13:47

CHAIR: Welcome back everyone to the continued hearings of the Senate Legal and Constitutional Affairs Legislation Committee looking at the 2015-16 estimates. We are dealing with the Office of the Australian Information Commissioner.

Senator JACINTA COLLINS: Senator Brandis, can I take you back to the letter by your chief of staff to Mr Dowd. Is that his correct title?

Senator Brandis: Whose correct title?

Senator JACINTA COLLINS: Mr Dowd's.

Senator Brandis: I do not have the letter in front of me. What do you say his title is?

Senator JACINTA COLLINS: I am not sure. I am asking you. It is just the 'Hon. John Dowd'.

Senator Brandis: Mr Dowd was but I think no longer is a justice of the Supreme Court of New South Wales. So if I am right in understanding him to be a retired justice of the Supreme Court of New South Wales, I think his formal title would be the 'Hon. John Dowd'.

Senator JACINTA COLLINS: In Mr O'Sullivan's response, which I think Senator Rhiannon tabled earlier for us, the second last paragraph indicates that Mr Pilgrim was appointed as the Acting Information Commissioner for a three-month period 'while the government considers options for the future of the Information Commissioner position'. Are you able to inform the committee further on what that consideration process involves?

Senator Brandis: No. I do not know what Mr O'Sullivan had in mind when he wrote that sentence, but I will ask.

Senator JACINTA COLLINS: Going back to questions in relation to how the Office of the Information Commissioner is currently functioning, Mr Pilgrim, what is the current caseload?

Mr Pilgrim : Are you focusing mainly on FOI or the privacy caseload or both?

Senator JACINTA COLLINS: Both, thanks.

Mr Pilgrim : Currently, on hand, on the FOI side, we have 211 matters. Currently, on the privacy side, we have 3,000 matters.

Senator JACINTA COLLINS: How is that tracking with past caseloads?

Mr Pilgrim : For the privacy caseload, our caseload has been going up over a number of years—I will just give you some figures and make one explanation in terms of the privacy caseload. In the 2014-15 financial year, we received 2,840 privacy complaints. That was down on the previous year, which was 4,239. However, in that previous year we did have quite a number of complaints coming in from one major data breach matter so that did increase the figures quite significantly. However, overall the privacy complaints have been trending up for quite a number of years now.

For the FOI matters: in the 2013-14 financial year, which was the one prior to the announcement about the changes for the office, we had received 524 applications for an Information Commissioner review. In the 2014-15 financial year just finished, we received 373 applications for Information Commissioner reviews.

Senator JACINTA COLLINS: Sorry, 373 applications.

Mr Pilgrim : For Information Commissioner reviews under the FOI act.

Senator JACINTA COLLINS: And your caseload is currently 211.

Mr Pilgrim : That is correct: 211 on hand, yes.

Senator JACINTA COLLINS: Is it true that the Information Commissioner is unable to deal with all the appeals which come before him and is referring many on to the AAT?

Mr Pilgrim : We get applications in, not appeals as such, under the legislation, so there are applications for the Information Commissioner to undertake a review of a decision by an agency. I mentioned some of these figures just before the break to Senator Xenophon and I can go through them again. We finalised in the 2014-15 financial 482 matters that were applications for an Information Commissioner review. Of those, 128 were the subject of an Information Commissioner decision—that is, either the former commissioner or me making a formal decision. Of those matters, 61 were closed.

Senator JACINTA COLLINS: Yes, I remember that figure.

Mr Pilgrim : Sixty-one were closed under section 54WB, which then provides for the applicant to go off to the AAT for review. So 61 matters were closed under that particular section of the act.

Senator JACINTA COLLINS: What I am dealing here then is with the assertion that some of these 61 may be being closed earlier than they might otherwise, because of limited resourcing.

Mr Pilgrim : The section that allows us to do that is where there is a decision taken that is in the good administration of the act that we think those matters can be best resolved if they go off to the AAT.

Senator JACINTA COLLINS: Has there been a change in practice with respect to those provisions since your resourcing has been streamlined?

Mr Pilgrim : I think that what we have been doing has been, as I said earlier, taking some new processes to handle the IC reviews. We have been conciliating, as I said before the break, quite a number of those. We had some 115 that we have managed to conciliate an outcome in without having to go to a formal decision. In terms of the matters where they have been closed so that applicant can go to the AAT, we have looked on issues in terms of whether or not there is a likelihood that we can reach a decision that will not be appealed. Where it looks like there would be an appeal to the AAT, we have talked to the parties about closing it under that provision so that it can go to the AAT. I might ask Ms Toohey if she wants to expand on any of the other reasons we do those closures.

Ms Toohey : I note that, in last year's statistics, the first half of the year were also in light of the fact that we were expecting to close in December.

Senator JACINTA COLLINS: I recall past discussions, I think, where that process has been described as a means of managing the quota.

Ms Toohey : It was also a case of potentially adding months on to someone's application when they were going to end up in the AAT anyway. You will see certainly from more recent stats that the number has stabilised around 12 to 14 per cent. As the commissioner has just mentioned, it is generally matters where we think the matter will not be finalised by our process where the parties are interested in litigating the matter. They are the matters that we generally refer to the AAT, after consulting with both parties.

Senator JACINTA COLLINS: So, prior to the current government's policy decision, what was the percentage rate?

Ms Toohey : I have not got it in front of me. It was smaller; I certainly can affirm that.

Senator JACINTA COLLINS: Could you take that on notice for me, please. When you say 'it stabilised to between 12 and 14 per cent', how high did it get?

Ms Toohey : They would have been the highest stats we have had.

Senator JACINTA COLLINS: So it has not swung back?

Ms Toohey : No. Essentially it has been around the 12 per cent mark since we started looking at matters on the basis of their complexity—how large they were, whether they were going to be resolved and dealt with by the process that we provided.

Senator JACINTA COLLINS: Going to my earlier questions about education and best practice guidelines on managing FOI, has the AGD already taken responsibility for FOI policy?

Mr Pilgrim : The functions for FOI policy as part of the planned disbanding of the OIAC did see those functions going to the Attorney-General's Department.

Senator JACINTA COLLINS: So that still has occurred?

Mr Pilgrim : That still has occurred, yes.

Senator JACINTA COLLINS: To what extent does that also relate to the functions around educating decision makers on FOI matters?

Mr Pilgrim : I think, in terms of the role of the commissioner, prior to that decision, that was certainly the role of the information commissioner. As I said before the break, there were a number of ways in which we had undertaken that, and some of those functions would have gone over to the Attorney-General's Department with the resourcing.

Senator JACINTA COLLINS: Can you describe those for me?

Mr Pilgrim : I think it might be best to ask the department if they would like to talk about some of the functions they see themselves undertaking.

Senator JACINTA COLLINS: No, Mr Pilgrim, with respect, what I am asking you is: what was it that the information commissioner did in the past that you now believe resides with AGD?

Mr Pilgrim : In the past we did have a role of providing education. As I said, we did run an information contact officer's network, where we brought together representatives from the various government agencies that were responsible for both FOI and privacy. We met a few times during the year, when we would have a half-day seminar to brief them on decisions, guidelines and policy decisions we were taking. That is a role we are no longer undertaking, and I am not in a position to say whether the Attorney-General's Department sees themselves taking that on.

Senator JACINTA COLLINS: I am not asking you that side of the question. I will come to that with them later.

Mr Pilgrim : Also there is the role we see as being educative, through the publishing of our decisions, my decisions, and that is ongoing for me.

Senator JACINTA COLLINS: That is still occurring.

Mr Pilgrim : We also have a continuing role working with agencies to the degree that we can. In that regard, we do have one to one meetings with agencies ourselves, still, to work through some of the issues we are finding with their particular agencies. There is the guideline process, which is a function of the information commissioner. That function had transferred over to the Attorney-General's Department; however, under the current act, which is still in place, the information commissioner is required to handle the development and the publishing of those guidelines. That is something I am talking to the Attorney-General's Department about at the moment, about how we can best work to review those guidelines.

Senator JACINTA COLLINS: Okay. So with the guidelines, who takes responsibility for them now—AGD or you?

Mr Pilgrim : I think we will be working together about reviewing the guidelines, for the reason, in part, that some of the responsibility was to transfer to the Attorney-General's Department—some of the resourcing was to transfer to the Attorney-General's Department—but I, under the Freedom of Information Act, hold the power to actually publish guidelines. So it will be a joint exercise.

Senator JACINTA COLLINS: So the publishing of them still resides with you?

Mr Pilgrim : The issuing of them still resides with me, yes.

Senator JACINTA COLLINS: Just like the responsibility to appoint an information commissioner under the act still resides with the Governor-General?

Mr Pilgrim : The Governor-General—all under the act, yes.

Senator JACINTA COLLINS: Yes, I think that is section 14 in the act. Senator Brandis, I was wondering if you were able to describe to me Mr Dowd's position as the 'Australian president' of ICJ Australia? Let me get the exact term. It was described in the media on one basis. What standing does that position actually have?

Senator Brandis: I am not really aware. I know that the international—

Senator JACINTA COLLINS: I thought you were an expert in all such things.

Senator Brandis: I am really only here to answer questions about my portfolio and I will confine myself to that. But the International Commission of Jurists, which is what ICJ stands for for these purposes, is an international body of lawyers who take an interest in legal issues and, in particular, as I understand it, what might broadly be called rule-of-law issues.

Senator JACINTA COLLINS: And?

Senator Brandis: I am not a member of the International Commission of Jurists and I have had no professional or personal dealings with them. I know Mr Dowd slightly. Please do not take me as an authority on what is the charter of the ICJ, but that is my understanding of what their role is. It is a voluntary association.

Senator JACINTA COLLINS: Like a professional association, which seems to have an Australian division.

Senator Brandis: No, I would not describe it as a professional association. Again, I do not claim to be an expert, but I think that you do not have to be a lawyer to be a member of it, for example; but its focus is on legal and constitutional issues. So it is not a professional association in the way that, for example, the Bar Association is a professional association.

Senator JACINTA COLLINS: Its title describes it as an 'International Commission of Jurists', so I am trying to understand what the standing of such a commission might be.

Senator Brandis: I do not know. And in particular I do not know what the provenance of the word 'commission' is. It would not have the same meaning as it would have in our domestic law. But—

CHAIR: I am trying to google it in case that is helpful to Senator Collins. I am sure that will tell you everything you need to know.

Senator JACINTA COLLINS: Actually if it helps the committee I have found a footnote—it may be part of a letterhead—of the honourable Dowd, which contains a description to the effect:

The International Commission of Jurists, founded in Berlin in 1952, is an international non-governmental organisation with consultative status to the United Nations, UNESCO, the Council of Europe, and the Organisation of African Unity. Its headquarters are in Geneva, with autonomous national sections and affiliates around the world. The Australian Section was founded in 1958 by the then Chief Justice of the High Court of Australia, Sir Owen Dixon, OM, GCMG.

Senator Brandis: GCMG.

Senator JACINTA COLLINS: GCMG, yes.

CHAIR interjecting

Senator Brandis: There was a question but—

CHAIR interjecting

Senator Brandis: It was quite interesting; it must be said, Senator Macdonald.

CHAIR: I could have got it from google without the help of either of you.

Senator JACINTA COLLINS: It was just that it was raised earlier.

Senator Brandis: I think, Senator Collins, that I now know more about the International Commission of Jurists than I have ever known before.

Senator JACINTA COLLINS: There you go.

CHAIR: That is lucky. You can ponder that, Minister, while—

Senator JACINTA COLLINS: How much more time do I have?

CHAIR: The bell has just gone.

Senator JACINTA COLLINS: I will come back to this later then.

Senator RHIANNON: I want to return to the letter that was circulated to the Attorney-General signed by Paul O'Sullivan. The final sentence of the final paragraph states: 'Additional resources will be provided to the OIAC for the continued exercise of its functions in 2015-16'. It is the words 'FOI functions' that I am after some details on. Can you identify the 'FOI functions' that it is intended the OIAC should continue to perform?

Senator Brandis: [inaudible] functions relating to FOI to be performed by the OAIC.

Senator RHIANNON: Could we have details about that? In Mr O'Sullivan's letter, in the two bottom paragraphs—and this may be a straightforward answer, Attorney-General—the three functions that are identified are: the external merits review of FOI decisions; investigations of complaints about FOI processing for agencies; and the issuing of FOI guidelines and annual reporting on FOI statistics. Are they three of the functions that were referred to in that letter?

Senator Brandis: I am not the author of the letters, Senator. If you want me to anatomise the FOI functions as they are conferred by the act, that is one question. What Mr O'Sullivan may have had in mind when he used that phrase is really a question best directed to him.

Senator RHIANNON: Will I go to Mr Minogue—if it is correct that you also had input into this letter, are you able to confirm—

Senator Brandis: Mr Minogue did not say that; Mr Minogue said that the letter may have been circulated through the Attorney-General's Department, which is a slightly different thing.

Senator RHIANNON: I am not verballing anybody; I am just trying to find out if you are not in a position to assist, Attorney-General. It really is quite a straightforward question.

Senator Brandis: You are asking me what the author of a letter, who was not me, meant by a phrase they chose to use, and I really think the only person who can answer that question is the author of the letter.

Senator RHIANNON: With all due respect, Attorney-General, this is from your department about a most critical issue, and we are trying to understand what this means, considering many of these functions have been attended to in quite a minimal way.

Senator JACINTA COLLINS: No, there is a response by his chief of staff, not the department, to a letter that was written to him.

Senator Brandis: That is correct, Senator. It is not a letter from the department; it is a letter from the Attorney-General's office . It was not written by a departmental officer; it was written by my chief of staff, Mr Paul O'Sullivan. I am not the author of this letter and I will, as I indicated before, take the question on notice so I can make an inquiry of Mr O'Sullivan's response to you question.

Senator RHIANNON: Thank you for taking it on notice—so just to elaborate on what would be useful to take on notice and gain a response, I repeat: there are three functions identified in those last two paragraphs on the first page—the external merits review of FOI decisions; investigation of complaints about FOI processing for agencies; and the issuing of FOI guidelines and annual reporting on FOI statistics. Looking at the OAIC website, it also lists the independent monitor of FOI matters and responsibility for regulating and providing advice on the operation of the Freedom of Information Act 1983. Could you take it on notice if those five points are what is covered when the word 'functions' is used.

Senator Brandis: I will ask Mr O'Sullivan what he was referring to when he used the word 'functions', but it is not for me to speculate on what the author of a letter may have meant by the use of the words he chose to use.

Senator RHIANNON: So you are agreeing to take it on notice?

Senator Brandis: I have said I would take it on notice.

Senator RHIANNON: I would like to move on to clarifying some information that was supplied in questions on notice from earlier this year—this is question number AE15/078. In response to a question at an earlier estimates—this is December 2013—I noted in my question that we had heard that the FOI workload was increasing by 10 to 15 per cent per year. I asked in February-March this year: was there anticipation that the workload would decrease? The answer that I received was:

Yes. It is anticipated that the number of applications to the Administrative Appeals Tribunal (AAT) will be less than the number of applications for external review received by the Office of the Australian Information Commissioner.

It goes on to say:

This is due to two major reasons—

and this is where my question goes to—

(1) the requirement for internal review will improve the quality of decision making …

What evidence do you base that response on? I will say it again:

…the requirement for internal review will improve the quality of decision making …

How did you determine that that would occur before it had happened?

Senator Brandis: To whom is your question directed, Senator?

Senator RHIANNON: As you often come in, Attorney-General, and take over the questioning, I thought that you would be very capable of giving direction on this matter and assisting the committee.

Senator Brandis: I think the conclusion is made on a judgement about the best governance arrangements.

Senator RHIANNON: Surely, Attorney-General, even for you that is not an answer. An assumption has been made there. It is implied that there is evidence.

Senator Brandis: No, it is not.

Senator RHIANNON: It says:

… the requirement for internal review will improve the quality of decision making …

Senator Brandis: That is a judgement.

Senator RHIANNON: Yes, and I am asking what the judgement is based on. That is quite a straightforward question.

Senator Brandis: I will take that on notice, because that judgement was, no doubt, contributed to by the thinking of a number of people, which, I venture to imagine, was based on their experience of governance arrangements.

Senator RHIANNON: There were two major reasons stating why the assumption is made that there will be a decrease. The second one is: 'The application fee for external merits—

Senator Brandis: It is not an assumption; it is a prediction, or an expectation.

Senator RHIANNON: The English language is very delightful, Senator Brandis.

Senator Brandis: No, it is a very important difference. That was not an input into the decision. That was an expectation of the outcome of the decision.

Senator RHIANNON: If you dispute that this is an assumption, I will look forward to hearing your answer. The second reason given is:

… the application fee for external merits review is an appropriate mechanism to ensure that genuine applications are able to be pursued.

What is the evidence for coming to that assumption?

Senator Brandis: It is not an assumption and nor does it say there is evidence. I would characterise the proposition stated in the sentence you have read aloud as a judgement.

Senator RHIANNON: But what is it based on?

Senator Brandis: I will take it on notice, but I dare say it is based on the experience of governance of those who contributed to the decision.

Senator RHIANNON: And what is that experience? Has this been done before? Are they drawing on something practical?

Senator Brandis: I am advised by very experienced senior public servants. I am advised by very experienced and skilful policy advisers, as is any minister, and decisions about governance arrangements that are made are invariably informed by the views that emerge from those sources, as well as the judgement of ministers.

Senator RHIANNON: So you will take it on notice to—

Senator Brandis: I will, out of courtesy to you. I cannot imagine that I will be elaborating beyond that. When you say 'evidence', to me, as a lawyer, I think of evidence as empirical data of some description. But it is not only empirical data that informs policy choices. Often it is judgement, experience, intuition, values or the various other factors that go into ultimate policy choices.

Senator RHIANNON: But surely, Attorney-General, considering the enormity of these changes, it is only reasonable to put it on the public record when such an emphatic statement is made that it is an appropriate mechanism. I look forward to your response. I am running out of time, so it is only fair that I move onto the next question.

Senator Brandis: You used the phrase 'enormity of these changes'. I do not think the changes are particularly enormous. The purpose of the changes is to streamline a process and avoid unnecessary duplication by having a double review system, uniquely, in Commonwealth ministerial review.

Senator RHIANNON: But if fewer people are able to interact with the system that is something that should be explored. I now refer to question No. AE15/068 and the answer to 1a. The English is not fantastic, but I think we can get the meaning of it:

The Attorney-General’s Department notes that AAT application fees may be reduced fee to $100 in cases of hardship …

Could I ask for figures here, please. How many reduced fees have been issued? What was the total number, and what was the percentage overall?

Senator Brandis: I will take that on notice, and I apologise for the evident absence of an indefinite article somewhere in that sentence.

Senator RHIANNON: Please also take on notice how many applications were successful overall and how many were knocked back. Could that be in numbers and percentages, please.

Senator Brandis: Yes.

Senator RHIANNON: Finally, there is question No. AE15/077. This was about gaining some data on the number of FOI requests for 2014. The last quarter, from 1 October to the end of the year, was 3,042. But it was noted that some agencies had not reported their figures for this quarter, so I was just after the total figure for that year, if that could also be taken on notice, please.

Senator Brandis: Yes.

Senator RHIANNON: Thank you.

Senator JACINTA COLLINS: Can I ask Mr Pilgrim some questions around FOI and ministers using—I want to use the right word here—non-official means of communication. Are you aware of the advice that was tabled in the Senate Finance and Public Administration Committee yesterday by Mr Allan McKinnon with respect to non-official communication systems?

Mr Pilgrim : No, I am not aware of that advice.

Senator JACINTA COLLINS: Mr Pilgrim, this has been an issue, as I understand it, in the UK and in the United States. Have you addressed this issue at all?

Mr Pilgrim : No, I have not considered that issue at this point.

Senator JACINTA COLLINS: Would you see it as a concern if the use of non-official means of communication, which involves the destruction of documents, were being used to the effect that future searches under the FOI Act would not be possible?

Mr Pilgrim : I think there are couple of overlapping issues there, and one would be relating to the Archives Act for which I do not have responsibility.

Senator JACINTA COLLINS: You don't?

Mr Pilgrim : Not for the Archives Act, no.

Senator JACINTA COLLINS: Who does?

Mr Pilgrim : The National Archives office has responsibility for the Archives Act. To try to not prolong the conversation, it is not a matter that I have actually turned my mind to at this point in time, so I do not know that I would be in a position to be able to answer your question directly at this stage.

Senator JACINTA COLLINS: Have you got a copy of that advice yet?

Mr Pilgrim : It has just been provided to me, yes.

Senator JACINTA COLLINS: It might be easier for me to ask you on notice to consider that advice with respect to FOI matters. I will ask my following question on notice as well, which is: will you consider conducting an own motion investigation into this issue?

Mr Pilgrim : I will certainly look at the advice and see what response we can provide. In terms of an own motion investigation, I will take that on notice and have a look at the advice in the first instance.

Senator Brandis: You should point out, Senator Collins, that the advice you have given was tabled by me last night in the Finance and Public Administration Estimates Committee, without having been requested to do so, because the government believe in open government. We, of our own motion, put this material before the parliament so that the parliament can know the advice the Prime Minister got.

Senator JACINTA COLLINS: We certainly have that piece of advice, but that piece of advice is but one part of that story. You will recall that Mr McKinnon referred us—

Senator Brandis: The questions are about the advice. This is the advice.

Senator JACINTA COLLINS: to the Australian Signals Directorate. I have questions well beyond just the advice, Senator Brandis, as indeed did the opposition last night.

Senator Brandis: Please do not try to muddy the waters here, Senator. This is the advice. The Prime Minister sought advice on this issue that you have raised. This is the advice that he received.

Senator JACINTA COLLINS: Senator Brandis, I am not muddying any waters, with respect. If anything, I suspect your attempt to narrow it down to this one piece of advice is—

Senator Brandis: This is all it is, Senator. This is the advice.

Senator JACINTA COLLINS: Yes, this is the advice that the Prime Minister received with respect to a particular issue. It is not the only relevant issue with respect to the matter.

Senator Brandis: I am just making it plain that this is the only advice the Prime Minister has received.

Senator JACINTA COLLINS: I have not even asked that question. Mr McKinnon referred us to the ASD last night. I think it is also an issue pertinent the Office of the Information Commissioner in relation to FOI, thus I am asking questions.

Senator Brandis: You are entitled to your opinions, Senator Collins. I am merely pointing out that this is the only advice the Prime Minister received. It was put on the public record by the government last night, not at the urging of the opposition, but in order to avoid the very thing you are trying to do now and suggest that there is some other dimension to this other than the mere fact of this advice.

Senator JACINTA COLLINS: There are many other dimensions to it.

Senator Brandis: There you go again, Senator Collins.

Senator JACINTA COLLINS: I am not going anywhere. I have asked a question. Mr Pilgrim, have you taken that question on notice?

Mr Pilgrim : I will take that on notice, Senator.

CHAIR: Thank you, Senator Collins, and thank you, Mr Pilgrim, and your team. I appreciate your help.