George Brandis to Josh Frydenberg on OAIC Oct 12, 2017
Tim Smith to George Brandis on OAIC. December 6th 2017
Submission to Attorney General: OAIC matters raised by ART – The evidence! December 7th 2017
OAIC Continued… Letter from Christian Porter, Attorney-General March 22, 2018
Resourcing of OAIC – Response of ART to the Attorney General May 7, 2018
Agencies spend big to block FOI requests
The federal government recently released for comment its second national action plan on transparency, information access and open government. The plan was originally designed, among other things, to help prevent governmental and corporate corruption and to promote both a more transparent system of political donations and “21st century” information laws, but instead has many of the government’s civil society partners fearing the door to open government is in danger of swinging shut.
The Human Rights Law Centre has accused the government of setting the bar too low to achieve any meaningful change.
“The commitments are vague and mostly lack specific, measurable outcomes,” the centre said in a submission on the draft plan. For example, it said the plan commits only to “investigate options” for ensuring political donations are disclosed more quickly.
“This stops short of committing to any action,” it said. “This is not a goal to pursue but a step in a process.” Similarly, and “even less ambitiously”, it said, a commitment on strengthening the national anti-corruption framework is merely to “continue to consider and access all options”.
“The government could engage in no reform at all and still technically comply with such commitments,” the centre said.
There are other moves afoot that also contradict the government’s avowed openness.
It is relying on a legal loophole to avoid appointing a freedom of information commissioner, leaving the FOI system clogged by long delays and growing government expenditure devoted to blocking access.
Under existing law, Australia is supposed to have three officials managing public access to information: the Freedom of Information Commissioner, the Privacy Commissioner and, overseeing them both, the Information Commissioner, under the banner of the Office of the Australian Information Commissioner (OAIC).
But for almost four years, the FOI commissioner’s job has been vacant.
The Abbott government tried to abolish the whole office in the harsh 2014 budget, but the Senate refused to pass the legislation. Instead, the government simply cut its funding, leading then information commissioner John McMillan to spend several months working from home before he left office in July 2015.
With FOI commissioner James Popple having resigned in December 2014, privacy commissioner Timothy Pilgrim was left to cover all three jobs.
Pilgrim resigned recently and, on August 16, Angelene Falk was appointed as his replacement, serving officially as both privacy and information commissioner, but not as FOI commissioner.
Late last year, South Australian Centre Alliance senator Rex Patrick pointed out that the law required three commissioners and demanded the government appoint a new official to oversee FOI.
It was the second time his party had pressed the point.
His former leader, Nick Xenophon, to whom Patrick was an adviser before taking the Senate seat when Xenophon retired, had written to then attorney-general George Brandis in March last year, urging him to appoint an FOI commissioner, instead relying on a workaround in the legislation that lets the first two commissioners also handle FOI reviews.
Brandis had replied that the government was satisfied with the arrangements and planned to leave the position vacant for now. Having struggled to receive satisfactory responses to a range of information requests, Rex Patrick wrote a follow-up letter in late November.
This time, he devised an unorthodox tactic to try to embarrass Brandis into action. He indicated that unless the government was prepared to rectify the situation, he would ask the Senate to ban Brandis from sitting in his chair as government Senate leader.
Brandis was irate. He telephoned Xenophon, who by then was out of parliament. Brandis demanded he get Patrick to back off, but Xenophon told him to take the matter up with his successor. So, Brandis did, calling Patrick to a meeting and asking him to hold off at least temporarily, leading Patrick to believe change was afoot.
Change was afoot – though of personnel rather than policy.
Soon after, Brandis announced he was quitting parliament to become Australia’s high commissioner to Britain, stepping down from his government roles and prompting a ministerial reshuffle.
With the new attorney-general, Christian Porter, based in the house of representatives, Patrick’s Senate trick would not work.
“He outfoxed me,” Patrick says of Brandis.
Patrick has now drafted a private member’s bill demanding the government uphold the spirit of its own legislation. It seeks to enforce the appointment of three separate commissioners – with none allowed to act in the other roles – and to tighten up the FOI review powers.
It also seeks to apply a time limit for reviewing FOI decisions and to have them automatically transferred to the Administrative Appeals Tribunal after that – at no cost to the applicant.
The bill also seeks to have the National Archives of Australia publish annually exactly how much it spends on legal expenses to fight applications for access to information.
In answers to questions at Senate estimates hearings, the archives revealed that in the past four years, it and other agencies had spent almost $927,000 blocking applications for archives’ information. Other agencies have also paid to oppose applications at the Administrative Appeals Tribunal, including the Home Affairs Department, which has fought bids relating to minister Peter Dutton’s use of ministerial visa discretion.
Rex Patrick is concerned the government isn’t funding the information commissioner’s office properly.
“I don’t understand why a government that claims to be genuinely interested in openness and transparency and promising access to information would allow there to be a bottleneck and would not properly resource a crucial office like that,” he tells The Saturday Paper.
In January this year, the Accountability Round Table, a respected non-government organisation, wrote to Attorney-General Porter to protest the “inadequate resourcing” of the office, noting funding had halved since 2014 from $5 million to just over $2 million, despite it still having to handle FOI reviews.
The letter noted the findings of an Australian National Audit Office investigation of the handling of FOI, completed in 2015–16 and published last year, which revealed that while 88 per cent of initial FOI applications were processed within 30 days, the average time for reviewing decisions was 372 days.
The audit noted that increasingly the information commissioner’s office was using its discretion to reject review applications.
The office said decision-makers may have taken a tougher line on whether an application lacked substance “given the backlog of matters”.
The ANAO said: “The exercise of a discretion not to review an application should be based on the merits of the application rather than the discretion being used as a workload management tool.”
It found there was “very limited quality or verification of the reliability” of FOI data from the rest of government and that exemption claims had increased 68 per cent over the previous five years, with claims for exemption citing “certain operations” and “national security” increasing 318 per cent and 247 per cent respectively.
Responding to the Accountability Round Table’s letter, Porter said the government had diverted $500,000 a year back to the office from the Administrative Appeals Tribunal.
He also indicated he was happy with the single-commissioner model and that “the OAIC has continued to operate efficiently whilst ensuring that all of its FOI functions have been fulfilled”.
The Round Table wrote again in May but there has been no change to the arrangements.
Christian Porter told The Saturday Paper the government was considering Patrick’s bill but that it considered current funding was “appropriate”.
“Funding and resourcing decisions for all government agencies are determined by government as part of general budget processes,” Porter said, adding that the office had been operating efficiently under a single commissioner since 2015.
Just before parliament rose last month, Rex Patrick tried his Senate manoeuvre again, this time in seeking access to documents on Australia’s multibillion-dollar submarine contract.
On August 13, he asked the Senate to ban the then defence minister and now foreign minister Marise Payne from sitting in her frontbench seat unless she provided the documents.
Payne had refused, claiming “public interest immunity” – a kind of protective secrecy blanket that governments are using increasingly often to refuse to release information.
Patrick needed opposition support. Labor agreed to back him in demanding the documents, but not to embarrassing the minister.
Labor frontbencher Kim Carr said it opposed the move as “a party of government”.
“We would ask that the government take note of that because what comes around goes around in these circumstances,” he said.
In other words, we won’t do that to you if you promise not to do it to us.
Patrick calls that “extremely disappointing”.
“They indicated a fear for high standards of transparency and oversight should they form government,” he says.
When asked about civil society’s concerns about the national action plan on open government, Finance Minister Mathias Cormann told The Saturday Paper: “The second national action plan builds on the lessons and successes of the first plan, with a series of further commitments to enhance accountability, transparency, public participation and innovation across government. It was developed through extensive consultation with stakeholders.”
One of those stakeholders is Fiona McLeod, who chairs the Accountability Round Table and is civil society’s co-chair on the government working group that signed off on the draft. McLeod says she hopes when the third plan is developed, by whoever forms the next government, it will drive things forward more substantially. She says civil society groups look forward to developing the current draft into “solid commitments that are ambitious and coherent”, including a national integrity commission, a First Nations Voice to Parliament, more open contracting, better human rights protections and greater access to information.
McLeod says openness is crucial to stable democracy.
“When you have a wall of silence which you can’t penetrate, then you develop a mistrust of the motivations for government actions and you create mistrust in the institutions of government,” she says.
McLeod is a realist. She says while the draft plan is missing a lot, it is still positive, taking small steps.
And when we’re in a “pre-election moment”, they’re “not likely to be ambitious”.
This article was first published in the print edition of The Saturday Paper on Sep 8, 2018 as “Out of commission”. Subscribe here.