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.
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. 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.
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. 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.
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. 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.
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. Exercise of these
functions was already within the power of those agencies and did not require
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’.
The 2016–17 Budget announcement of the reinstatement of funding
for the OAIC has therefore been welcomed by the Acting Information Commission
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
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.
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. 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.
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.
Australian Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney-General’s
Portfolio 2016, p.128, p. 261. An Office of the Privacy Commissioner
was to be established as an independent statutory position within the
Australian Human Rights Commission and be responsible for the exercise of
statutory privacy functions. External merits review of FOI decisions, which was
conducted by the AOIC, was to be transferred to the Administrative Appeals
Tribunal (AAT) with a total of $1.8 million to 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 would be
administered by the Attorney-General’s Department. Complaints about FOI
administration would be directly dealt with by the Commonwealth Ombudsman. See
M Neilsen, ‘Law
and Justice: Commissions‘, Budget review 2014–15, Research paper
series, 2013–14, Parliamentary Library, Canberra, 2014.
The OAIC appropriation for 2013–14 was $10.6 million.
Quoted in M Neilsen, Law and Justice: Commissions, op. cit.
All online articles accessed May 2016.
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