The Hon Malcolm Turnbull, MP
CANBERRA ACT 2600
Dear Prime Minister
I Chair the Accountability Round Table .
I refer to our previous correspondence of 10 October 2015 concerning the Open Government Partnership. May we thank you and your government for confirming on 17 November 2015 Australia’s commitment to the OGP, and for starting the process to establish Australia’s National Action plan in partnership with the people of Australia.
In the letter of 10 October, we also sought action by the government to withdraw its Bill to abolish the OAIC and restore the OAIC’s funding so as to enable it to discharge its statutory obligations.
These obligations are fundamental to a proper FOI process. They include considering complaints, conducting reviews of refusals of FOI requests, monitoring the operation of the FOI system, guiding departments and agencies in their performance of their obligations under that system, including providing guidelines, and providing independent advice to government.
These considerations were, however, put aside when, on 9 February 2016, the Attorney-General stated at a Senate Committee hearing that the Government’s policy was still to abolish the OAIC. If that remains the case, there are serious matters that need to be addressed.
You will recall that the OAIC, was a best practice statutory body established in 2010 to address the failed state of the FOI system, a key part of Australia’s open government. It had received a positive assessment in the Hawke Report in 2013. And it appears to be widely accepted at the highest level of government elsewhere that maximising open and accountable government has significant benefits for the community. (e.g. see the Speech of the UK Prime Minister at the OGP opening)
In advancing a policy to abolish the OAIC, and achieving its de-facto abolition by denying it funds, the Government, and therefore Australia, have been, and are, in direct conflict with the commitments spelt out for all members of the OGP in the Open Government Partnership: Articles of Governance (p.20 ).
In addition, serious questions have been raised about the de facto abolition of the OAIC being inconsistent with s 61 of the Constitution (which concerns the duties of the Executive Branch of the Commonwealth Government) and the principles of the separation of powers and the rule of law. (See Canberra Times: Abbott skirts parliament and muzzles the FOI watchdog) ; Canberra Times: Time for Turnbull to step up on open government) ; see also the letter of the Hon John Dowd AO Q.C to the Attorney-General on OAIC . A specific commitment made by the government and Australia on joining the OGP was that of “strengthening the rule of law”. (Articles of Governance: p.21)
On 20 October2015 the Attorney-General said that the approach to funding the OAIC was ”quite sensible” when “statutory repeal is imminent”. But it was not. At that time, it had been clear for some 12 months that the Senate was not prepared to pass the Bill. The Attorney offered no evidence that any relevant circumstance had changed.
The OGP Articles of Governance provide, at p 33, for an Independent Reporting Mechanism. This incorporates an assessment of the performance of “each participating government on development and implementation of action plans”. Any such assessment must conclude that the government’s conduct in relation to the OAIC is fundamentally at odds with the principles of the Open Government Partnership.
In all the circumstances, we are left wondering whether the problem may be that under the pressures of modern government, the Government has overlooked the above realities and the necessity to abandon its attempted abolition of the OAIC.
Whatever may be the explanation, we ask that special steps be taken to ensure that, in the present budget process for 2016-2017, the issue is addressed by restoring the funds to the OAIC that will enable it to discharge its statutory duties over the whole of that financial year.
I will in due course forward a copy of this letter to the Attorney-General and the Treasurer.
We will follow our usual practice of placing our correspondence on the ART website.
Hon Tim Smith Q.C.