It’s good news that the Federal Government and civil society completed and lodged, with the (International) Open Government Partnership, Australia’s first National Action Plan (NAP) on 8th of December last year  to improve and strengthen transparency and openness in Government.

Over the next two years, the Federal Government and civil society will be engaged in the “cooperative consultation” involved in implementing this first NAP. We reproduce below, our letter to the Prime Minster, Malcolm Turnbull, congratulating and thanking those involved in reviving our commitment to the OGP and developing our first NAP and  discussing

  • the promising start made in the preparation of the NAP,
  • challenges we face in its implementation and
  • Budget measures needed for the implementation of the NAP to be successful.

Read on to see what the National Action Plan requires the government to do, and how it can be implemented.


The Hon Malcolm Turnbull, MP

Prime Minister

Parliament House

Canberra

Re the Implementation of our NAP

Dear Prime Minister

I write, on behalf of the Accountability Round Table (ART), to congratulate and thank you, your colleagues, and the members of your Department, for reviving Australia’s commitment to the Open Government Partnership (OGP) in November 2015 and the production in the following 12 months of Australia’s first National Action Plan (NAP) in partnership with us – civil society.

While the NAP could, and should, have been significantly better, the approach taken was a responsible one and a comparison of the first draft of the NAP with its final version demonstrates a real, effective and significant “co-creative consultation” between the Government and civil society. We understand that it is regarded as one of the best first NAPs produced by the member nations of the OGP

ART particularly welcomes the NAP’s recognition of the value and importance of the OAIC not only in its FOI statutory roles but also in its significant new roles, including as a Lead Agency, spelt out in the NAP for the implementation of 4 of the NAP Commitments.  (see Appendix A).  We also welcome the statement made in the NAP statement confirming this recognition and a commitment to adequately resource the OAIC contained in the NAP material for “Commitment 3.1: Information management and access laws for the 21st century”:

“The implementation of Australia’s information access laws is overseen by the National Archives of Australia (and the Independent Office of the Australian Information Commissioner (OAIC). The Government is committed to ensuring the adequate resourcing of the OAIC to discharge its statutory function, and provided funding for this purpose over the next four years in the 2016 – 17 Budget”.

In light of the history in recent years of the OAIC, the NAP’s public recognition of its value and the Government’s express commitment are very encouraging. Unfortunately, that same history suggests that the risk may remain that, as occurred in the last three Budgets, the resourcing issue may be overlooked or ignored again in the next Budget Process, notwithstanding this recent public commitment. In addition, that action has meant that Australia has been, and, until the resourcing is addressed, will continue to be, rejecting significant commitments we made as a participating nation in the OGP. (See Appendix B)

The statement that the Government acted in the last Budget with the intent of providing the necessary funding over the next four years in the current Budget adds weight to that concern. An examination of the publicly available information does not support such an intention. Nor does an application of the “Pub Test”. (For details, including ART’s submissions to the Auditor-General, see Appendix C; see also the evidence given by Commissioner Pilgrim in a recent Senate Estimates Hearing, see Appendix D) There is also another important aspect that may not have been addressed yet and which must not be overlooked.  For the OAIC to be able to perform its important roles in the implementation of the NAP it must be provided with the people and the financial resources needed over the next two years to perform not only all its FOI statutory functions but also its NAP roles. If the present levels of resourcing are maintained, it will not be able to do so.

We have wondered whether specific resource commitments may not have been made because of concern not to pre-empt the decisions for the next Budget. But in budgetary terms, the additional funding is not large; in presenting the Bill to abolish the OAIC in 2014, the Government referred to a saving of $2.6 million per annum.

Since the 2014 budget, the OAIC budgetary issues appear to have been ignored or overlooked within the Government. Factors contributing to that inevitably continue; for example

  • the political reality of priority tending to be given to the big Budget items.
  • the reality that matters critical to the integrity and functioning of our Commonwealth Democratic Government have tended to be put to one side in the Parliament, the media and the public debate.

Have we also been overlooking the fact that Australia is now a fully participating nation in the OGP, and has in place the Interim Working Group to facilitate our co-creative Government/Civil Society Partnership including in Budget matters?

Approaching the issues from that perspective, the challenge facing our Partnership now is the implementation and success of its NAP.  It will be critical that an adequate Budget provision be made. We submit that that is the first task that needs to be addressed in the implementation of the NA P.

But as a participating nation in the OGP, we should be handling this issue in a new way, one that gives effect to the co-creative partnership that is now in place between Government and Civil Society.

There isn’t time to await the implementation of the NAP Commitment (Commitment 5.1) to create the proposed multi-stakeholder forum. But that should not be a concern because the Interim Working Group (IWG) which played such an important, expeditious and valuable role in the development of the NAP is still in existence and Commitment 5.1 expressly provides for its operation to continue until the proposed multi-stakeholder forum is created.

The IWG should be convened as soon as possible to review what are the budgetary requirements to enable the OAIC, and all relevant Government Departments and other agencies involved, to discharge their statutory and NAP responsibilities and put together a Budget proposal to be considered by the people and organisations identified in the NAP as the participants in the implementation phase.  The IWG should remain involved in the Budget process until the Budget is finalised.

We urge all to bear in mind that, if we fail to adequately address the OAIC resourcing issues, we will be continuing the breaches of our commitments as a participating nation in the OGP.

I will forward copies of this letter to the Finance Minister, the Treasurer and the Attorney-General and to my local member, the Member for Kooyong.

We will also follow our usual practice of placing this letter on our website.

 

Yours sincerely,

The Hon. Tim Smith QC

Chair, Accountability Round Table

https://www.accountabilityrt.org/about/


Appendix A – OAIC involvement in the implementation of the NA P

Commitment 2.1: Release high-value datasets and enable data‑driven innovation

The lead agency is the Department of the Prime Minister and Cabinet. The Government actors comprise Commonwealth Government agencies, the OAIC and state and territory and local governments.

Commitment 2.2: Build and maintain public trust to address concerns about data sharing and release

The OAIC is in a group of lead agencies with DPM and C and the Bureau of Statistics (page 29-30)

Commitment 3.1: Information and management and access laws for the 21st century

(the Commitment containing the stated commitment to adequately resource the OAIC)

The lead agency is the Attorney-General’s Department. The Government actors identified are – the National Archives of Australia, the OAIC and DPM and C

Commitment 3.2: Understand the use of Freedom of Information:

The information laws across jurisisdictions and raise awareness about the public’s right to access government information

The OAIC is the lead agency.


Appendix B – Australia’s OGP Commitments 

  • Australia’s OGP Commitments affected by a continued failure since July 2014 to fund the OAIC to perform its statutory functions include the following: “consistently and continually advance open governance for the well-being of their citizens,”
  • “Make concrete commitments, as part of a country action plan, that are ambitious and go beyond a country’s current practice”,
  • promoting increased access to information and disclosure about governmental activities increase the availability of information about governmental activities at every level of government”,
  • providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process”,
  • having robust anticorruption policies, mechanisms and practices ensuring transparency in the management of public finances and government purchasing and strengthening the rule of law”
  • “Implementing the highest standards of professional integrity throughout our administrations”

( pp3, 3, 17 ,20 and 21 of the OGP Articles of Governance; http://www.opengovpartnership.org/sites/default/files/attachments/OGP%2520ArticlesGov%2520Apr%252021%25202015_0%5B1%5D.pdf )


Appendix C– the realities of the 2016 – 17 Budget

ART made submissions during the NAP consultation process about the need to increase the resourcing of the OAIC to enable it to perform its critical role within our FOI system. ( e.g. https://www.accountabilityrt.org/open-government-partnership-national-action-plan-art-submission-1-recognising-the-role-of-the-oaic/ ) It has also made submissions to the Performance Audit of the Auditor General and the OAIC in the FOI area ( https://www.accountabilityrt.org/freedom-of-information-not-so-free-now-part-2-art-and-the-audit-of-the-implementation-of-the-freedom-of-information-act-1982/ ) in the discharge of their obligations in the FOI system. It was prepared by an ART Committee comprising two former Auditors-General (Mr Des.  Pearson and Mr Michael Blake) and the Chair.

Applying the “Pub Test”, we have a situation where the funding provided in the 2016 – 17 budget will continue to fall well short of what is required to enable the OAIC to discharge its statutory functions.  For in the 2016 – 17 Budget period:

  • the OAIC’s major statutory functions that had been transferred to the Ombudsman and to the Attorney-General’s Department were to be returned to the OAIC,
  • the Budget funding was not materially increased and the stated anticipated increase in staff for 2016-7 was a mere three people,
  • nothing has been done since that Budget to appoint three people to each of the three critical independent Statutory Commissioner positions in the OAIC. Instead we are still relying upon one person to perform each of those roles – the Privacy Commissioner. He has been appointed to be the Information Commissioner and is being relied upon to exercise his power in that position to address the functions of the FOI Commissioner even though he lacks the legal qualifications that the legislation requires for anyone to be appointed to the position of FOI Commissioner.
  • nothing has been mentioned about re-opening of the necessary Canberra Office which closed following the loss of funds in 2014-5 forcing the then Information Commissioner to work from home.

In addition, the conduct of the Government in failing to fund the OAIC to perform its statutory FOI functions has been allowed to continue by the Attorney-General and the Government notwithstanding serious issues that have been raised about its conduct breaching fundamental constitutional  principles, the separation of powers and the rule of law  ( https://www.accountabilityrt.org/george-brandis-urged-to-respect-rule-of-law-by-former-liberal-attorney-general/) .  They are yet to be answered by Government.

You will appreciate our concern about the adequacy of the resourcing of the OAIC being overlooked or ignored in the next Budget.


Appendix D. Recent evidence given at Senate Estimates Committee hearing 28 February 2017 (48 – 51 )- http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/6aee39c2-452e-44fb-87dd-7e3638a03b83/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2017_02_28_4796.pdf;fileType=application/pdf .

In his evidence, Commissioner Pilgrim confirmed that the OAIC had approximately 69.48 full-time equivalent staff compared to the 97 staff at the time the abolition of the OAIC was announced. He went on to refer to the “main jurisdictions” at present being “Information Commissioner reviews” and “complaints under the Privacy Act”.

It also appears from his evidence that OAIC statutory functions that had since the 2014-15 Budget been passed to the Attorney-General and his Department, and per the 2016-17 Budget statements were to be returned, have not been.  He said

“… I would point out that one of the functions that we did have prior to that particular decision being taken was a role under the Information Commissioner Functions Act. We are not undertaking those functions at this point in time because much of that work – in terms of advising government on the handling of data more broadly, which was the intent of those particular provisions – is being undertaken through the Prime Minister’s Department, and we participate as part of a number of committees in that work.” (P 49).

It is likely that the latter activity referred to has taken place in the context of the development of the NAP- cf. Appendix A.  Plainly the OAIC has been an important participant in that process.

It remains unclear what the Attorney-General’s Department has been doing in performing those particular OAIC statutory functions since they were passed to it in or about 2015.

It seems reasonably clear form Mr Pilgrim’s evidence that the OAIC has not been addressing its statutory “freedom of information functions”.  That was, and is, a significant role. This is borne out by an examination of the definition of the “freedom of Information functions” (section 8 Australian Information Commissioner Act 2010;   http://www.austlii.edu.au/au/legis/cth/consol_act/aica2010390/s8.html ) It lists 9 substantial specific functions in addition to the one that it has been attempting to perform – the review of decisions under the Freedom of Information Act 1982 (paragraph (h). It would appear from the evidence that is available that most, if not all, of the other 9 have not been addressed for several years. This was to be expected because of the failure to restore the funding required to enable them to be performed. If we had been doing so, we would have been honouring, directly and indirectly, the commitments listed in appendix B.

We submit that the reality is that it will be critical to not only reverse the present situation, but also to increase the resources provided to the OAIC and so enable it to discharge its statutory functions and specific roles in the implementation of the NAP.