Mary Anne Neilsen
Independent statutory agencies and royal commissions administered within the Attorney-General’s portfolio, featured in the Budget—the more notable announcements being the disbanding of the Office of the Australian Information Commissioner from 1 January 2015; the reduction of the number of Commissioners within the Australian Human Rights Commission from seven to six; and the allocation of funding for the Royal Commission into Trade Union Governance and Corruption.
Office of the Australian Information Commissioner
In 2010, the then Labor Government established a new statutory agency, the Office of the Australian Information Commissioner (OAIC), as part of a major reform of its information policy strategy and framework aimed at placing a stronger emphasis on open government and disclosure of information.
The previously free-standing Office of the Privacy Commissioner was integrated into the new arrangements and two new statutory positions were established—the Freedom of Information (FOI) Commissioner and the Australian Information Commissioner (Information Commissioner).
The OAIC has a comprehensive range of powers and functions to provide independent oversight of privacy and FOI and advance information policy and management across Australian Government agencies. The OAIC appropriation for 2013–14 is $10.6 million. At the end of March 2014 the OAIC had 63.3 Full-Time Equivalent (FTE) staff in budget-funded positions. An additional 15.82 FTE staff are funded under Memorandum of Understanding arrangements with other agencies to undertake specific privacy work such as work relating to the eHealth initiative.
From 1 January 2015 the OAIC’s status as an agency under the Financial Management and Accountability Act 1997 will cease and funding for ongoing functions will be transferred to other agencies. The new arrangements for privacy and FOI regulation are forecast to produce a saving of $10.2 million over four years.
From 1 January 2015 an Office of the Privacy Commissioner will be established as an independent statutory position within the Australian Human Rights Commission. It will be responsible for the exercise of statutory privacy functions.
External merits review of FOI decisions, which are currently conducted by the AOIC, will transfer to the Administrative Appeals Tribunal (AAT). A total of $1.8 million will be transferred to the AAT over four years to assist with the processing of FOI reviews.
Other Information Commissioner functions related to FOI guidelines and FOI statistics will be administered by the Attorney-General’s Department. Complaints about FOI administration will be directly dealt with by the Commonwealth Ombudsman.
In terms of the three Commissioner positions, it would seem that the FOI Commissioner (currently James Popple) will transfer to the AAT, the Privacy Commissioner (currently Timothy Pilgrim) to the new Office of the Privacy Commissioner and the Information Commissioner position (currently John McMillan) will be abolished. It is unclear how many of the OAIC staff may be redundant and how many may transfer to other agencies.
These changes would in many respects return FOI and privacy structural regulation to the position prior to the 2010 Labor Government changes.
The Shadow Attorney-General Mark Dreyfus has criticised the changes, stating the cut has come with no consultation and will make a minor saving at the cost of Australians’ access to information about their Government.
The Government’s stated rationale for the measure appears to be strongly based on the perceived advantages of moving external FOI merits review to the AAT, with the Attorney-General arguing:
The complex and multi-level merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.
It is of interest that the disbanding of the OAIC was not one of the National Commission of Audit recommendations, although the Commission did make a recommendation regarding the amalgamation of other specialised merits review tribunals.
The 2013 Hawke Review into the 2010 changes to FOI laws, while noting the reforms had been operating as intended and have been generally well received, did raise questions about the current two-tiered FOI merits review process and recommended that it be ‘re-examined as part of a more comprehensive review of the FOI Act’.
Whether the proposed changes will, ‘lessen the burden on FOI applicants’ as the Attorney-General argues, is not clear. Currently the Freedom of Information Act 1982 provides for a two-tiered system of external merits review of FOI decisions: the first being conducted by the Information Commissioner and if a party is not satisfied, the second being conducted by the AAT. The advantage of the Information Commissioner review is that it can be undertaken without prior internal review, without legal advice and without application fees. These have all been factors contributing to the significant increase in external merits review applications to the Information Commissioner and for the subsequent delays associated with review. The OAIC has recently defended the Office’s record, noting that the completion rate has continued to improve — ‘for example, by 31 March 2014 the completion rate for Information Commissioner reviews had climbed to 4.7 cases per day (from 0.37 cases per day in the first 18 months), the FOI complaint closure rate to 1.1 per day (from 0.21 per day in the first 18 months) and the privacy complaint closure rate to 20.1 per day’.
The proposal to return to separate privacy and FOI regulation may well be viewed positively by those who argue there is a tension between the right to privacy and the right of access to government information. The 2013 Hawke Review noted this potential conflict of interest was raised in some submissions but concluded that the combination of the OAIC functions provides a logical basis for an integrated scheme of information management and policy.
One of the more significant Information Commissioner functions is the provision of strategic advice to the Attorney-General on Australian Government information management policy and practice more broadly. The transfer of responsibilities announced in the Budget appears not to provide for such a role.
Australian Human Rights Commission
The Australian Human Rights Commission (the Commission) is a regulatory agency responsible for the promotion and protection of human rights through education and raising public awareness; handling discrimination and human rights complaints; ensuring human rights compliance; and contributing to policy and legislative development in the area of human rights.
The Commission is currently composed of a President and seven specialist commissioners covering Aboriginal and Torres Strait Islander Social Justice, Age Discrimination, Children, Disability Discrimination, Human Rights, Race Discrimination and Sex Discrimination.
The controversial appointment of Tim Wilson as Human Rights Commissioner in February 2014 was the most recent special purpose Commissioner appointment. This position had previously been left vacant for over 18 months. At Senate Estimates hearings in February 2014, the Attorney-General indicated that the appointment of a Human Rights Commissioner with a focus on freedom was a method of creating a ‘personal freedom’ commissioner position and thereby fulfilling a Coalition election commitment. Media reports prior to the appointment indicated that Senator Brandis saw no reason why the Commission should receive additional funding to cover the $320,000 salary for Mr Wilson.
The Budget includes savings of $1.7 million from the Commission over four years to be achieved by reducing the number of special-purpose Commissioners from the current seven to six. The saving will be achieved by not replacing the current Disability Commissioner Graeme Innes when his first term of office expires in July 2014. It is expected that the position of Disability Commissioner will be amalgamated with another Commissioner position.
The Commission President, Professor Gillian Triggs has expressed her disappointment in this reduction, noting also that Commissioner Innes has made an outstanding contribution to the rights of people with disability and the development of the National Disability Insurance Scheme (NDIS).
The Shadow Attorney-General, Mr Dreyfus has criticised the measure, noting the Government’s decision to appoint Tim Wilson as a Human Rights Commissioner has come at the expense of Australia’s first full time Disability Discrimination Commissioner.
Another less-publicised budget measure affecting human rights, is the cessation of the Human Rights Education Program within the Attorney-General’s Department from 1 July 2014. This will achieve savings of $1.8 million over four years.
On 14 March 2014, the Attorney-General and the Minister for Employment announced the establishment of a Royal Commission into Trade Union Governance and Corruption.  Justified on the basis of delivering on a Government election commitment, the Royal Commission will inquire into the governance arrangements and alleged financial irregularities associated with the affairs of employee associations, including trade unions, and the adequacy of existing laws as they relate to the governance and financial management arrangements of these entities. Hearings before the Commission commenced on 9 April 2014 and the expected reporting date is 31 December 2014.
Funding for the Royal Commission is provided in the Budget with the Government allocating $53.3 million over two years (including $5.3 million in capital funding).
The cost of this measure will be offset by redirecting funding from the Employment, Industry and Infrastructure and Regional Development portfolios.
Funding for the other ongoing Royal Commissions administered within the Attorney-General’s portfolio, namely the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into the Home Insulation Programme is ongoing, although the reduction in funding across the forward estimates reflects the expected dates of completion of the Royal Commissions.
. The new arrangements will require legislative changes including repeal of the Australian Information Commissioner Act 2010 and amendment of the Freedom of Information Act 1982, the Privacy Act 1988 and the Australian Human Rights Commission Act 1986.
. National Commission of Audit, Towards responsible government: phase one, February 2014, p. lxii, accessed 19 May 2014. See also: M Coombs, ‘Amalgamation of merit review tribunals’, Budget review 2014–15, Research paper, 2013–14, Parliamentary Library, Canberra, 2014.
. Merits review is where a person or body other than the primary decision-maker reconsiders the facts, law and policy aspects of the decision and determines the correct and preferable decision.
. The Hawke Review, op. cit., p. 28.
. The Hawke Review, op. cit., p. 19.
. OAIC, Statements: Australian Government’s Budget decision to disband OAIC, op. cit., The information policy advice function currently discharged by the OAIC will cease.
. Senate Legal and Constitutional Affairs Legislation Committee, Committee Hansard, 24 February 2014, p. 81, accessed 19 May 2014.
. Budget measures: budget paper no. 2 2014–15, op. cit., p. 57, accessed 19 May 2014.
. Budget measures: budget paper no. 2 2014–15, op. cit., p. 59.
. The Royal Commission website is available here
. Budget measures: budget paper no. 2 2014–5, op. cit., p. 62.
. Portfolio budget statements 2013–2014: budget related paper no 1.2: Attorney-General’s Portfolio, op. cit., pp. 36, 22, 29 and 30.
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