Budget Review 2016–17 Index

Mary Anne Neilsen

A significant but relatively unpublicised budget announcement was the decision to not proceed with new arrangements for privacy and Freedom of Information (FOI) regulation including the proposed abolition of the Office of the Information Commissioner (OAIC). Accordingly Budget Measures: Budget Paper No. 2: 2016–17 provides:

The Government will provide $8.1 million over four years from 2016‑17 to continue the operations of the Office of the Australian Information Commissioner (OAIC).

Additionally, $6.7 million per year for privacy functions will be transferred to the OAIC from the Australian Human Rights Commission, and $0.6 million per year will be transferred from the Attorney‑General's Department for Freedom of Information functions.[1]

The short history of the OAIC has been a rocky and controversial saga. Established as a statutory agency in 2010, the OAIC was part of a major reform of the Labor Government’s information policy strategy and framework. The initial enthusiasm for the establishment of the OAIC as a facilitator of more open government waned to a degree during the Office’s first years of operation, when problems of time delays and backlogs in processing review of FOI decisions became evident.[2] However despite the initial teething problems, the 2013 Hawke review into the 2010 changes to FOI laws reported positively on the OAIC, while raising questions about the efficiency of the two-tiered FOI review process.[3]

The Abbott Government announced the abolition of the OAIC in the 2014–15 Budget, with the measure forecast to produce a saving of $10.2 million over four years.[4] While promoted as part of its commitment to smaller government, the announcement was unexpected to the extent that the disbanding of the OAIC was not one of the National Commission of Audit recommendations.[5]

Under the 2014–15 measure, funding for the OAIC was provided until the end of 2014 and the new arrangements for privacy and FOI regulation were to commence from 1 January 2015, following passage of legislation to implement these changes. Funding transfers to the Australian Human Rights Commission and other agencies to facilitate these changes also occurred as part of the 2014–15 Budget.[6] However significant practical difficulties arose when in October 2014 the Government introduced into Parliament the Freedom of Information Amendment (New Arrangements) Bill 2014, being the legislative response necessary to implement these budget measures. It became apparent shortly after introduction that opposition from Labor, the Greens and several cross bench Senators would mean that the Senate would reject the Bill. While the Bill was passed by the House of Representatives, it effectively remained in limbo until it lapsed on prorogation on 17 April 2016. The failure to pass this Bill meant that the Government was left with an unanticipated arrangement whereby the legislation by which the OAIC has been created, and to which the Government remained bound, continued to operate but without funding to fulfil its operations. The unusual budgetary situation aroused controversy with concerns including the constitutional propriety of the government’s actions in defunding the OAIC whilst the OAIC still remained a legal entity with statutory obligations.[7]

The practical effect of these budgetary arrangements was that the Canberra office of the OAIC was closed in December 2014. In terms of the three Commissioner positions within the OAIC, James Popple resigned as FOI Commissioner in December 2014, and the Information Commissioner, John McMillan in June 2015. From July 2015 onwards, the Privacy Commissioner, Timothy Pilgrim also performed the role of acting Information Commissioner for periods of three months with rolling extensions.

When Parliament’s resistance to the Bill became clear, the Government reinstated sufficient funds through the 2015–16 Budget for the OAIC’s functions to continue, although on a much reduced scale. At the same time some of the OAIC’s functions were taken over by the Ombudsman and the Attorney-General’s Department, as envisaged in the original plan for abolishing the OAIC.[8] Exercise of these functions was already within the power of those agencies and did not require enabling legislation.[9]

The uncertainty of these arrangements was considered unsatisfactory with the Acting Information Commissioner reported as saying that ‘this uncertainty is far from an ideal situation and I hope that soon we will have some clarity about the future of the OAIC’.[10]

The 2016–17 Budget announcement of the reinstatement of funding for the OAIC has therefore been welcomed by the Acting Information Commission[11] and is likely to be welcomed by FOI advocates more widely. Academic Professor Richard Mulgan has recently argued FOI indeed needs an independent advocate in the immediate future, noting ‘powerful enemies are circling’ with the Public Service Commissioner, John Lloyd, and the Treasury secretary, John Fraser amongst others having ‘publicly bemoaned the effects of FOI on the quality of written advice’.[12]  

The decision to reinstate ongoing funding for the OAIC should also be welcomed as being a consistent and necessary as part of the Government’s recent moves to join the Open Government Partnership global group on transparency in government.[13]

The Budget measure however does not completely return the OAIC to its prior position and funding does not match the amount allocated in 2013–14.[14] The Attorney-General’s Portfolio Budget Measures in noting the change states:

FOI funding is provided on the basis of the streamlined approach to FOI reviews adopted by the OAIC since the 2014–15 Budget. Accordingly, funding provided to the Administrative Appeals Tribunal in 2014–15 will remain with the tribunal on the basis that some matters may be considered by the tribunal, where the OAIC determines under section 54W(b) that it is in the interests of the administration of the FOI Act for this to occur.[15]

It is not clear how this ‘streamlined approach to FOI reviews’ will operate and how the division of external review work would be allocated between the OAIC and the AAT. It may be that a stronger emphasis on AAT review as opposed to OAIC review would require further legislative change.[16]

All online articles accessed May 2016. 

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