The Attorney-General’s letter to ART of 21 May 2015  and the evidence given at the recent Senate Estimates Committee Hearing, confirm that the OAIC remains in deep trouble.  The letter produced below sets out what  ART sees as fundamental concerns – including that if the OAIC is allowed to cease functioning, “Why does it also not follow that the Executive Branch of our Government is repudiating its obligations to respect, carry out and maintain the laws of the Parliament, the Constitution, the Rule of Law and the Separation of Powers?

The letter was sent to the Attorney-General, Treasurer, Minister for Finance and the Prime Minister  on 10 July 2015″


Senator the Hon G.H. Brandis QC

Attorney-General, Minister for Arts,

Vice-President of the Executive Council,

Deputy Leader of the Government in the Senate,

The Senate, Parliament House

CANBERRA ACT 2600

 

Dear Attorney-General

I refer to our correspondence in this matter, including your detailed response dated 21 May which I received on my return from Canberra on 29 May.

Your letter clarified a number of matters including the fact what had occurred by then in relation to the OAIC had been intended by the Government. I note that the letter also maintained that the OAIC “remains responsible for privacy and FOI regulation and continues to exercise its functions under both the Privacy Act 1988 and the Freedom of Information Act 1982”.

While awaiting your letter we had continued our research on the matter and I had written with two  colleagues an article which was published in the Canberra Times and on-line by Fairfax  . The article raised concerns about the reality that for a considerable time, the OAIC had been unable to exercise its functions under the FOI Act and about the lawfulness of what had occurred to cause that to happen.

Shortly afterwards there occurred the Senate Estimates Committee Hearing concerning the OAIC .  It shed some further light on what had occurred as a result of the Government’s actions.

The evidence given made it clear that funding reductions made by the Government in the 2014/5 Budget in relation to the OAIC”s FOI functions, and since continued, had resulted in the staff available to discharge the FOI responsibilities being reduced from 23 to 12.  Further, the Government, in late 2014, had appointed the Freedom of Information Commissioner to the AAT and his position at the OAIC had remained vacant from 1 January.

As a consequence of these actions, the OAIC has had to cease its key interlocking FOI functions of independently monitoring, supervising and guiding the FOI system, and advising the government and of dealing with complaints about the handling of FOI applications.  It has also had had to significantly truncate and change its third interlocking statutory role as independent free-of-charge primary reviewer of refusals of FOI applications.  At the same time, the Government had also provided additional funding for the Ombudsman and AAT to enable them to deal with their resulting additional work.  In addition, your Department has apparently taken over responsibility for the FOI monitoring, supervising, guiding and advice role.

The practical result appears to have been that the Commonwealth FOI system has been effectively returned to its failed 2010 state notwithstanding that the Bill which the law requires to achieve that result,   presented by the Government to Parliament in the latter half of 2014, is still before the Parliament and is yet to be put to a vote in the Senate by the Government.

Evidence was also given at the Estimates hearing about the lawfulness of these actions of the Government. Unfortunately, this evidence has added to our concerns.

I refer, first to the evidence of Mr. Minogue at the Estimates Hearing (transcript p 38).  Asked questions about the legality of the Government’s actions, he said that being unable to proceed yet with its Abolition Bill, the Government’s duty is to respect the fact that the office continues.  He said that the Government had done so by providing funds for its FOI functions. No government witnesses before the Committee sought to deny or qualify that statement or offer a different definition of the Government’s duty.

Proceeding on the basis that that is the Government’s position, we have carefully considered it in light of the evidence now in the public arena.  We regret that we have been unable to identify a basis for saying the Government has been performing the duty described by Mr. Minogue. Rather, it appears from that evidence that not only are the OAIC’s major statutory functions not being performed as intended and legislated by the previous Parliament but the statutory office created by that Parliament can no longer be described as existing.  In particular, the evidence available points to the deliberate removal of the funds needed by the OAIC to discharge its statutory FOI functions including its central and critical overarching statutory responsibility to independently monitoring, supervising and guiding the FOI system, and advising the government,  Further, the Government has chosen to pass those responsibilities to one of its Departments.

If one accepts that analysis, why does it not follow that the Government’s actions are a repudiation of its duty? Why does it also not follow that the Executive Branch of our Government is repudiating its obligations to respect, carry out and maintain the laws of the Parliament, the Constitution, the Rule of Law and the Separation of Powers?

If that analysis and its conclusions are correct, serious concerns would also appear to arise about the advice given to the Government or about the extent to which it has been followed or both. If it was provided by your Department, how does the approach taken “protect and promote the Rule of Law” .

We submit that, on the evidence presently publicly available, the Government, if it has not already done so, should seek independent advice. We suggest that because, like many decisions that Governments need to make, particularly on government integrity system issues, they and their public sector advisors are dealing here with issues in which they inevitably have personal interests that conflict with their overriding public interest responsibilities.  It will be recalled that recently a senior Commonwealth public servant publicly described the FOI system as “pernicious”  .

But to achieve a complete understanding and resolution of these issues, full disclosure by the Government to the people of Australia is required of all matters and evidence relevant to these issues. In doing that, the Government would be doing no more than is required to address its fundamental fiduciary obligations as our public trustee – to serve the public interest.

First, we submit that the people of Australia are entitled to a full statement from the Government of

  • the government’s s justification for the way it has been handling the funding of the OAIC since May last year, and
  • if there is a basis in law on which it believes it has been acting, to fully explain what that is.

We submit that such a statement should also address whether Mr. Minogue’s definition of the duties of the Government accurately states the Government’s position and if not, what that position is.

A related issue requiring clarification arises from your response to a question in the Estimates Hearing about the “legality of the arrangement” under which complaints about the handling of FOI applications are no longer handled by the OAIC but are done by the Ombudsman (p41) and whether you sought legal advice.  You responded –

 “Well, it is such an obvious proposition that I would not have needed to. But, as a matter of fact, whenever briefs come to me from my department, as a matter of routine, the legal implications of any recommendation are canvassed.”

We submit that the people of Australia are entitled to full details of the “obvious proposition”.  As to that, we submit that, if you had in mind the fact that the Ombudsman already had some legal authority to handle complaints, while that may be relevant to whether the Ombudsman has a concurrent statutory jurisdiction, we suggest  it is  not relevant to the issue that is in question here. For, the duty of the Government is to respect the fact that the statutory OAIC Office and its primary function in the complaints area, still exists in law and the Government has, so far, failed to secure passage of the Bill it has before the Senate which it needs to end the existence of the OAIC or any of its statutory functions.

We also submit that, a bona fide question having arisen as to the lawfulness of the Government’s actions the people of Australia are entitled to expect full details from you and your colleagues in the Government, in compliance with your fiduciary obligations as our public trustees, of the relevant department brief and/or briefs received by you.

There is another related matter. In your letter dated 21 May, you stated that when the term of Office of the Information Commissioner, Professor McMillan ended “alternative arrangements would be made”.  We submit that the people of Australia are entitled to full disclosure of the following matters.

  • The “alternative arrangements” intended?
  • With Professor McMillan’s early departure, what steps is the Government undertaking to ensure the position is filled without further diminishing the capacity of the OAIC to perform its statutory functions?
  • Is the Government intending to appoint a person to fill the position of the Freedom of Information Commissioner, a vacancy created six months ago by the Government appointing the then Commissioner, Dr. Popple to the AAT.

In raising these matters, we submit that what we are seeking is no more than a Government should provide in satisfying its fundamental democratic obligation to be accountable to the people of Australia, the people who entrusted it with the powers it has been exercising.

At the same time, we also urge the Government, to resolve to withdraw the OAIC Abolition Bill and to enable the OAIC to perform its statutory role and functions by restoring its level of resources to at least what they were in 2013/14 and by filling the two Commissioner vacancies.   We tend to forget that good government depends on open government – as does maximising economic growth and addressing the risk of corruption. Doing so, would also enable the Government to honour its election commitment to put the “national interest first” and “restore accountability and improve transparency measures to be more accountable to you” (“Our Plan”, p49).

We ask that the above matters be addressed before Parliament resumes on 10 August this year.

As with our original letter, we will forward copies of this letter to the Treasurer and the Minister for Finance, their portfolios being affected by these issues.  In addition, in light of the evidence that has emerged, we will also write to the Prime Minister. We will also follow our practice and place this letter on our website.

 

Yours Sincerely

 

The Hon Tim Smith QC

Chair Accountability Round Table