The exchange of correspondence between ART and the AG on the deleterious effects on transparency and freedom of information caused by the lack of resources to the Office of the Australian Information Commissioner continues. Here is a further attempt to raise the urgency of this serious problem and gain some recognition from the Attorney General that the problem exists.


The Hon Christian Porter MP
Attorney-General
Parliament House
Canberra ACT 2600

Dear Attorney-General

I refer to your letter of 28/2/2018 ( https://www.accountabilityrt.org/oaic-continued-letter-from-christian-porter-attorney-general/ )   written in reply to the Accountability Round Table’s (ART) letter of  28.1.18 (initial letter can be read here)  concerning the inadequate resourcing of the Office of the Australian Information Commissioner (OAIC) and its consequences.

Attached to ART’s letter was a detailed summary of evidence that had emerged in 2017 from the ANAO Performance Assessment of the OAIC, and the OAIC Annual Report and the OAIC Corporate Plan. That evidence confirmed the significant reduction of the resourcing of FOI functions and major adverse impacts on the capacity of the OAIC

You will appreciate, therefore, that we are very puzzled as to why your reply letter did not address that evidence or the conclusions that followed from it.  Instead, it chose to “reiterate” what had been “asserted in previous Government correspondence”.

Your reply confirmed that the matters referred to in ART’s letter were being taken seriously.

The Circumstances

As the circumstances are not ordinary, and the matters involved are very important, it would be remiss of us not to pursue these matters further.

The matters to which we refer evolved in the context of Australia’s Open Government Partnership membership and National Action Plan 1 (NAP1), in particular, Commitment 3. 1. (for which your Department is the” lead Government Agency”).  Implementation of NAP1 is still in progress.

The required “co-creative consultation” between civil society and Government resulted in the inclusion of the following express commitment in NAP1 –

The Government is committed to ensuring the adequate resourcing of the OAIC to discharge its statutory functions and provided funding for this purpose over the next four years in the 2016 – 17 Budget” (p35)

The need for adequate resourcing of the OAIC was supported by a number of organisations including the Law Council of Australia, Transparency International, the Press Council and ART.

The recent evidence referred to in our previous letter, confirms that the intention of the Government is yet to be been realised.  That is yet to be explained.

The result is that we are yet to have restored the three Independent Commissioner structure of the OAIC or the funding needed to enable it to perform all its statutory functions and any responsibilities placed upon it under Australia’s National Action Plans.

Your letter also refers to the Government’s monitoring of the situation having regard to “the OAIC current fiscal environment and other competing priorities.” No observations are mentioned.

It is difficult to understand how, under adequate monitoring of those areas, it does not become quickly apparent that the very modest Budget provision to the OAIC to adequately perform its statutory functions will be more than covered by the Budgetary and Economic benefits that will flow from the resulting promotion of transparency, empowering of citizens and the fight against corruption– the major objectives of the OGP. [1]

Major consequences

The result has been that Australia is in the fourth year of failing to honour our specific freedom of information commitments as a member nation of the OGP – in particular,

  • “promoting increased access to information and disclosure about government 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” and ensuring
  • “transparency in the management of public finances and government purchases and strengthening the rule of law” [2]

Further, serious concerns have been raised about the” insults to the rule of law and the doctrine of the separation of powers” flowing from the Executive Governments actions.[3]

There is also the failure to honour the long-standing fundamental principle that an adequately resourced OAIC would serve – the public office public trust principle.[4]  We note that the High Court in a recent decision concerning section 44(v) of the Constitution considered, and relied upon, the principle in considering, and rejecting, the argument put for Senator Day that that provision should be interpreted broadly.[5] The High Court held it should be interpreted narrowly.

Considering the overall situation in which Australia finds itself, it would be easy to assume the worst, but one should never forget the old saying about making a choice between “conspiracy” and “stuff up”.

Our hope is that the approach taken in your letter reflected the fact that it was planning to address the matters in this Budget, the appropriate place to deal with it, and the further discussion of the issues was not necessary.

We will be following our usual practice of placing this letter on our website and providing a copy to the Departments of the Prime Minister and the Finance Minister, and to the Australian Open Government Partnership website.

Yours Faithfully

Hon. Tim Smith QC

Chair, Accountability Round Table


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

[1] OGP Articles of Governance   p2   – https://www.opengovpartnership.org/sites/default/files/attachments/OGP_Articles-Gov_Apr-21-2015.pdf

[2] Op cit. p 20/1

[3] Hon  John Dowd AO,QC, President of the ICJ Australia (https://www.accountabilityrt.org/george-brandis-urged-to-respect-rule-of-law-by-former-liberal-attorney-general/  –  stated that

“when a government was seen to be doing executively what it was unable to do by legislation” concerns arise about “insults to rule of law and the doctrine of separation of powers are understandably aroused” and “When this executive function has the effective result of emasculating a statutory body, which can only be abolished by statute, there can be no doubt that the wall of protection separating the executive from the legislature has been breached,”

[4] Sir Gerard Brennan, speaking at the presentation of the ART Parliamentary Awards in 2013 said

“It has long been established legal principle that a member of Parliament holds “a fiduciary relation towards the public” (3) and “undertakes and has imposed upon him a public duty and a public trust” (4).  The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories.  The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by, the interests of the trustee.”

[5]  see Prof. Anne Twomey  https://www.aspg.org.au/wp-content/uploads/2018/03/32_2-APR-Twomey.pdf  – re  interpreting s 44 (v)( the  text linked to footnotes 88 and 89 referring to the reasons in R v Day No 2 2017 HCA 14 [49] and[209]. )