On 31 May 2017 there was a discussion between members of Accountability Round Table and the Department of the Attorney-General concerning Australia’s the OGP National Action Plan that resulted in our first submission on proper resourcing of the Office of the Australian Information Commissioner.
Continuing this discussion, we reproduce below, our second (16th October 2017) submission on the matter. In it, we call for
- the funding required to enable the OAIC to be adequately resourced is restored, and
- instead of the present Privacy Commissioner also carrying the roles of Information Commissioner and Freedom of Information Commissioner, (three commissioners in one), a new Information Commissioner and a new Freedom of Information Commissioner should be appointed.
This submission has also been forwarded to the Prime Minister’s Department and that of the Minister for Finance and to the civil society representatives on the Open Government Multistakeholder Forum.
Australians have the right to the best privacy protection, the best management of government information and Freedom of Information that three Commissioners dedicated wholly to their roles can provide.
Submission – Advancing the consultation on the Commitment to adequately resource the OAIC (Commitment 3.1); a response from ART to the Attorney-General’s Department.
We greatly appreciate the carefully considered Response of 27 July 2017 (Attachment B) to ART’s submission concerning the resourcing of the OAIC. It has been helpful in identifying, directly and indirectly,
- the common ground between the ART and the Government and
- the matters put by ART and not challenged by the Government,
relevant to the performance of the express Commitment in Commitment 3.1 to ensure “the adequate resourcing of the OAIC to discharge its statutory functions….”.
In Attachment A, we have attempted to identify and discuss the stated and unstated common ground. Also discussed are unresolved matters. Those of particular and urgent significance are summarised below.
The adequate resourcing is yet to occur. It concerns both monetary and human resources. In addition, this situation poses major difficulties for the implementation of at least eight of the other NAP Commitments for which the OAIC is either a lead agency or a “government actor”.
We submit that there are at least two critical and connected issues which need to be carefully considered, further discussed and resolved. They have been preventing the OAIC discharging its statutory FOI functions and us meeting our OGP commitments. They comprise
- the halving of funding made available for the FOI functions in and since the 2014 – 15 Budget, and
- the concurrent abandonment of the critical effective OAIC independent Commissioners leadership group enacted by the Parliament.
- The funding issues.
The justification advanced in the Response appears to be that the level of funding “reflects the streamlined approach adopted by the OAIC to its FOI functions in recent times”. For that to be a correct analysis, one needs to be able to point to a cause preceding the funding policy so that the latter could reflect the former. None has been advanced. We submit that It can’t be; for it has been the funding policy that has led to so-called “streamlined” approach.
The adverse consequences flowing from this inadequate resourcing are discussed further in Attachment A
- The handling of the key resource – the three independent statutory Commissioners.
Since the 2014 – 15 Budget, The Parliament’s original statutory leadership structure for the OAIC has been rejected. Instead of three independent Commissioners – Information, FOI and Privacy- we have
- Privacy Commissioner Pilgrim, also appointed Information Commissioner, and
- Commissioner Pilgrim called upon to perform the FOI Commissioner’s functions even though he cannot be appointed FOI Commissioner because he does not have the legal qualifications required by the legislation for that Office. He is able to do that because, the Information Commissioner has, under the relevant legislation, the power to exercise the Information Commissioner’s functions and
- the periods of appointments have ranged from acting to, currently, two years not the five years of the first OAIC Commissioners.
The justification advanced in the Reasons is as follows:
“The OAIC has been operating efficiently with a single person undertaking the role of Australian Information Commissioner and the Australian Privacy Commissioner, whilst ensuring the FOI functions are fulfilled, since July 2015. This has ensured the objectives of the Freedom of Information Act 1982 are being effectively realised.”
Nothing is said in the Response about the other critical aspect – the standard and quality of performance in implementing the Freedom of Information Act 1982 (FOI Act).
There is also no mention of the Australian Information Commissioner Act 2010 (AIC Act) even though it and the FOI Act operate together to spell out our FOI system and the OAIC’s FOI objectives and functions. When both are considered, the reality that has to be addressed is that there has been virtually no performance of the combined objectives of the OAIC and AIC Acts since the 2014 – 15 Budget. Attention on FOI matters has been focused on the handling of FOI refusal reviews and complaints.
The Response goes on to provide some relevant statistics. They are confined, however, to the handling of FOI reviews and complaints – inevitably, because there have been no other FOI functions under the present legislation being performed.
The reality is that, since the 2014 – 15 Budget, the primary role of the OAIC has been to address Privacy issues and, in the lesser FOI role, to deal with FOI refusal reviews and complaints about the handling of FOI applications. The imbalance between the operation of the Privacy Functions and the FOI functions is apparent in the last published Annual Report and on the website.
For several years prior to the 2014 – 15 Budget, with the OAIC resourced as intended by Parliament, we had an FOI system which, in its terms and performance, had been pursuing objectives similar to those of the OGP.
When the 2014-15 Budget was handed down, Australia had been a participating member of the OGP for 12 months. With the inadequate funding that followed and the replacement of the statutory Commissioner leadership structure by reduced and compromised arrangements, the OAIC has been in no position to carry out the statutory FOI functions identified in the AIC Act 2010 and so unable to attempt to address Australia’s commitments spelt out in the Articles of Governance of the OGP, in particular,
- “consistently and continually advance open governance for the well-being of their citizens” (OGP Articles of Governance – P3)
- “promote transparency” (op. cit. – page 20)
- promote and “increase access to information and disclosure about governmental activities at every level of government”
- provide “access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process”
With the changes that began in 2014 – 15 “progress has stopped “ and we have continued to fail to address our commitments as a participating member of the OGP.
- Potentially significant changes?
In late 2015, however, the Government advised the OGP that Australia was committed to the OGP and published Australia’s first draft OGP National Action Plan (NAP). In the next 12 months, the Government and civil society engaged in developing and finalising that Plan.
In 2016, the Government announced in the Budget process that it was no longer seeking to abolish the OAIC. In that Budget, no steps were taken to restore adequate resources to the OAIC. But, as noted above, the issue was the subject of discussion and agreement for the NAP published in December 2016 resulting in inclusion of the commitment by the Government to ensure “the adequate resourcing of the OAIC to discharge its statutory functions…”.
This commitment, however, is yet to be addressed and the absence of action is yet to be explained. As we see it, we continue to remain in breach of our OGP commitments.
As a participating member nation of the OGP, Australia is committed to “acknowledge that open government is a process that requires ongoing and sustained commitment”. It is also committed “to lead by example …”. 
We appreciate that it is possible that with the many heavy and distracting demands on Government and Parliament, these matters may have been overlooked. But the issues have been on the table since the attempt to abolish OAIC was made in 2014-15 and that attempt was publicly abandoned in the first half of 2016.
If we are serious in our commitment as a participating nation in the OGP, should we not acknowledge the omissions and rectify them as soon as possible?
We submit that it is never too late to rectify these failings of our obligations as a member nation of the OGP. What is required is clear – we should ensure, as soon as it can be arranged, that
- the funding required to enable the OAIC to be adequately resourced is restored, and
- new Information Commissioner and Freedom of Information Commissioner appointed.
From a budgetary perspective, the cost of this commitment would be very modest.
Australia’s need for such action will only increase with further delay. Our delay has also created a major concern.
- The OAIC’s performance of new obligations under Our National Action Plan
The OAIC resourcing limitations will also have a significant impact on the capacity of the OAIC to discharge its new responsibilities in the implementation of 9 of the NAP’s Commitments, all of which involve the OAIC exercising its FOI statutory functions.
Our NAP has committed the OAIC to take a “lead agency” role in 2 NAP Commitments (2.2 and 3.2), and a “government actors” role in another 7 Commitments (including commitment 3.1 in which the specific OAIC resourcing commitment has been made by the Government). (See Appendix A)
We understand that specific resourcing has not, as yet, been provided to any Government Departments or entities for the performance of their roles in the NAP and matters have been proceeding on the basis that those involved will find the resources needed from within their present budgets.
Assuming that there is a basis for presuming that that is feasible for the departments and entities involved in the implementation of the NAP, plainly that presumption cannot be applied to the OAIC. For the OAIC funding and leadership structure is such that it is unable to perform most of its own FOI major statutory functions, and would have to
- more severely compromise or abandon those it does try to perform at present (FOI refusal reviews and complaints), and
- significantly cut back on the performance of the its Privacy functions.
The reality appears to be that we are still falling well short of honouring the commitments that we have undertaken in joining the OGP and will continue to do so without adequate funding being provided and restoration of the statutory Independent Commissioner leadership group.
The need for a special allocation to the OAIC should have been addressed in the last Budget but it appears to have been overlooked, and continues to be overlooked. It should include provision for three independent Commissioners.
We submit that speedy provision of this additional resourcing is also essential for the performance of the NAP.
It is also essential if we are to restore our credibility as a participating member of the OGP.
Hon Tim Smith QC Chair
Accountability Round Table
Appendix A – NAP Commitments expressly involving the OAIC
1.2 Beneficial Ownership Transparency;
With Treasury as the lead agency, the OAIC is one of four Commonwealth Government Actors including Attorney General’s Department and the balance comprise all state and territory governments
2.1 Release high-value datasets and enable data driven innovation and enable data-driven innovation
O AIC included in government actors with Commonwealth government agencies and state, territory and local governments.
2.2 Build and maintain public trust to address concerns about data sharing and release
O AIC a lead agency with PM and C and Australian Bureau of Statistics with Govt actors comprising 12 government departments and agencies and state and territory governments
3.1 Information Management and access laws for the 21st century
O AIC is a government actor with the National Archives of Australia and Prime Minister and Cabinet – lead agency Attorney-General’s Department
3.2 Understand the Use of Freedom of Information
The OAIC is a lead agency together with all other Australian Information Commissioners and Ombudsmen and the only “Government Actor”
3.3 Improve discoverability and accessibility of Government Data and Information.
The lead agencies are PM and C, Department of Finance, National archives of Australia and Department of environment ‘n energy¶. The government actors comprise all Commonwealth entities and therefore include the OAIC.
4.3 Open Contracting
The lead agency is the Department of Finance. The government actors are all Commonwealth entities and therefore include the OAIC
5.1 Delivery of Australia’s Open Government National Action Plan
The lead agency is the Department of the Prime Minister and Cabinet and all Commonwealth entities are the government actors presumably including the O AIC.
5.2 Enhance public participation in government decision-making
The lead agency is the Department of Industry, Innovation and science. The government actors comprise all Commonwealth entities and therefore include the OAIC – and specifically includes the Australian Charities and not-for-profits Commissions. Australian charities.
Attachment A. – The Common Ground and matters still to be resolved
Budgetary funding History –
- Funding History – Common ground?
Drawing on the Attorney-General’s Response, we appear to be in agreement that the appropriation to the OAIC in 2014/15, provided in anticipation of the abolition of the OAIC, was not materially increased in the following year. Instead, new substantial privacy functions were allocated to the OAIC and additional funding was provided for the privacy functions in 2015/ 16.
Following the decision not to abolish the OAIC in 2016, the Government announced that it would restore the OAIC’s statutory functions that had been transferred elsewhere in anticipation of the abolition of the OAIC (e.g. to the Ombudsman and Attorney General’s Department) without materially increasing the funding provided to it. This resulted in the responsibility for considering FOI complaints returning to the OAIC from the Ombudsman but the responsibilities that had been moved to the Attorney-General’s Department remained there to be more recently removed to the Prime Minister and Cabinet Department. This situation has been continued in the recent 2017 – 18 Budget and in the next anticipated Budgets.
Thus, we have continued to underfund the OAIC for the performance of all its statutory functions under both the Freedom of Information Act 1982 (FOI Act) and the Australian Information Commissioner Act 2010 (AIC Act) while requiring it to increase its Privacy functions and take back responsibility for dealing with FOI complaints.
This analysis is supported by the absence in the Response of references to the AIC Act funding and any suggestion that the OAIC has, under the present funding arrangements, carried out other statutory functions under sections 8 of the AIC Act and s 8F of the FOI Act.
- Reasons advanced for the Government’s OAIC funding position – Choices or oversights?
(i) Not requested? It is said in the Response that
“the Government considers requests for funding in each Budget in accordance with whole of Australian Government considerations”.
There being no suggestion that either the OAIC or the Attorney-General’s Department have made requests for additional funding to the Government, it is reasonable to proceed on the basis that neither has in fact done so.
Is it sought to suggest that the reason for the Government not restoring the funding needed to enable the OAIC to perform all its statutory functions has been that it did not receive requests from a relevant government department or agency or authority?
Proceeding on the basis that, in ordinary circumstances, requests would normally be made by statutory bodies to Government for needed budget allocations, is there an explanation for the lack of any such request by the OAIC or the Department?
- The following special circumstances should be noted. The Government, 5 months before the relevant Budget, in December 2016, had publicly committed itself in Australia’s first NAP to “ensuring the adequate resourcing of the OAIC to discharge its statutory functions…” The NAP had, at that time, been lodged with the 0GP and published by the Government. The Commitment to adequately resource the OAIC was made in Commitment 3.1.
- This Commitment had been made as a result of the “co-creative” consultation process between the Government and Civil Society in producing the NAP. The Civil Society organisations supporting that Commitment included the Law Council of Australia, the Australian Press Council, Transparency International, Civil Society Network and the Accountability Round Table.
- Under the terms of Commitment 3.1, there were, and are, 2 Government Departments that are parties to that commitment – the Attorney-General’s Department as the Lead Agency and the Department of the Prime Minister and Cabinet, as a “Government Actor”.
- The Ministerial Forward of the NAP (p. 3) quotes the “Minister responsible for co-coordinating Australia’s involvement in the Open Government Partnership on behalf of the Prime Minister”, Senator Mathias Corman, as follows “The Government is committed to strengthening our approach to open government into the future, in partnership with civil society”
These circumstances explain the absence of a formal request by the OAIC or the Department.
(ii) “Whole of Australian government” considerations?
Is this statement made as part of an additional explanation for the Government not increasing the resourcing of the under-resourced OAIC? What is a “whole of Australian Government consideration”? It cannot be suggested that that issue of the adequate resourcing of the OAIC is not a whole of government issue.
Was that not one of the considerations that prompted members of the present Government to recommit Australia to the OGP in late 2015 and so take up the ultimate leadership responsibility under the Open Government Partnership (OGP) to ensure that Australia meets its obligation as a participating member of the OGP including to –
- “.. consistently and continually advance open government for the well-being of their citizens”
- “Increase the availability of information about governmental activities” (op. cit. P 20). This includes to
- “commit to promoting increased access to information and disclosure under governmental activities at every level of government (ibid)
- provide “access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process” (ibid) and
- “Implement the highest standards of professional integrity throughout our administrations” (op. cit. P.21)
and to ensure that “open government is a process that requires ongoing and sustained commitment” – (op. cit. P.22).
The NAP express commitment in Commitment 3.1 to “ensuring the adequate resourcing of the O AIC to discharge its statutory functions…” was plainly and publicly placed on the Government and civil society agenda for six months prior to the subsequent Budget being published – and it continues. At no time prior to the Budget was anything said that it would not be honoured. But that is what has happened.
Is it conceivable that, despite its present and long-term importance, under the pressures of the Budget Process, what had become a simple non-controversial task could have been lost and forgotten – particularly when the budgetary provision required for the funding of the OAIC is so modest by Budgetary standards.
(iii) Other reasons – prior streamlining of performance of OAIC functions?
In the Response, it is said that
“the OAIC’s FOI funding reflects the streamlined approach adopted by the OAIC to its FOI functions in recent times”
Efficiency, or “streamlining, as it is referred to in this context, is an admirable goal if the functions and obligations accepted by the government are adequately addressed. But is this put forward as the explanation for the significant and numerous functions spelt out in the AIC Act that have not been addressed since 2014/15 and are still not being addressed?
To be a valid proposition, however, the sequence of events referred to require that the streamlined approach preceded the reduced funding. The opposite is the reality and the “streamlined approach” a necessity imposed by the reduction in funding.
What came first was the relevant significant reduction of resources (financial and structural) for the FOI/OAIC activities that commenced with the 2014/15 financial year, and since maintained) leading to the OAIC ceasing to carry out most of its FOI functions and to adopt a “streamlined” approach in one particular area only – its FOI refusal review function. The particular streamlining that occurred was to make use of the power given by S. 54W of the FOI Act to reduce the volume of FOI refusal review cases brought by citizens to be considered and determined by the Information Commissioner, leaving citizens to consider whether to go to the AAT.
(iv) Impact of the streamlining. It appears to be common ground that by so proceeding, the OAIC has effectively reduced the number of cases it would otherwise consider and decide.. It is not suggested, however, that that streamlining has enabled the OAIC to pick up and perform other FOI functions. Rather it has been a procedure adopted to cope with the reduced resources – financial and structural.
In assessing the overall pros and cons of this “streamlining”, it is necessary to look at its impact on all the operations of the OAIC. We submit that when that is done, that there have been significant negative consequences. They include
- Adding an additional preliminary step to the FOI refusals review process: an initial examination of all the applications before the OAIC sufficient to enable it to be determined whether it should be fully considered by the OAIC or terminated so that the applicant can consider whether to take it to the AAT pursuant to section 54W;
- Denying FOI review applicants, and the Government departments and agencies involved, the benefit of a consideration of the review and ruling by the OAIC in a non-adversarial process by an independent statutory body without any financial charge and, if unsuccessful, the opportunity for the parties to make a better-informed judgement about whether to pursue the review in the AAT;
- Leaving the review applicants whose applications have been declined by the OAIC under section 54W in a situation where the only way to seek a review is to go directly to the AAT without having the benefit of the exploration of the relevant issues by the OAIC at a hearing and a cost of $860.00 to proceed. There they will also have to cope with an adversary process in which the government department or agency has legal or otherwise experienced representation while the citizen seeking a review has to incur the cost of engaging legal representation or seek legal aid.
There will also have been a significant loss for practical overall management in that, prior to the introduction of the “streamlining” phase, when the OAIC had been reviewing refusals of FOI access it was also directly gathering information about the operation of the FOI system relevant to its statutory functions, for example, the monitoring of the operation of the FOI system, deciding when to exercise the power to conduct an own motion reviews of the performance of government agencies and departments and providing guidelines and independent advice to Government. Exercising the s.54W power, will result in the OAIC not having complete information from those examples because the s. 54 process will fall well short of the enquiry needed for information for these purposes.
There may also have been wider general burdens placed on our legal system resulting from this particular form of “streamlining” for example, an additional burden on the legal aid budgets, and, where legal aid is not available, leaving the citizen seeking a review unrepresented and seriously disadvantaged, the workload of the AAT increased and the proceeding in the AAT made more challenging for all involved.
In assessing the “streamlining” approach, we also need to bear in mind what the Hawke Report in 2013 said about the performance of the OAIC reform that, “in essence, the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent.”  In addition, the creation of the OAIC in 2010/11, as originally funded and staffed, anticipated the commitment we made when we first joined the OGP in 2013 of
- ” promoting increased access to information and disclosure about governmental activities.” and
- “providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process.” 
What we presently have is a significant retreat from that commitment.
But, with a relatively modest Budget allocation, all these matters can be addressed by the OAIC with its statutory leadership structure restored and sufficient funding to enable it to discharge all its statutory functions under the FOI and the AIC Acts.
In conclusion, we note there is also a serious question as to whether Parliament in enacting S54W(b) intended that it could be used when the Executive Branch adopted a policy of limiting the resources needed to enable the OAIC to discharge its statutory functions. The language used in the section rather points to an intention that the power given be available to deal with special cases, for example, involving the interpretation of the legislation of transferring such applications to the AAT. We note that the Auditor-General has expressed serious concern about this use of s54W.
- The government policy and approach to the appointment of the OAIC Commissioners -common ground?
The Response records that the proposal of the Government is
- not to appoint different individuals to the three Commissioner positions,
- to continue with one person, Commissioner Pilgrim, originally appointed to the OAIC as the Privacy Commissioner, to fulfil the role of Information Commissioner as well, and
- not to fund or appoint a Freedom of Information Commissioner.
For some time now, the Government has relied on Commissioner Pilgrim to discharge the three Commissioner roles. He was Privacy Commissioner before the attempt to abolish the OAIC began. He was appointed Acting Privacy Commissioner when his term expired, and Acting Information Commissioner after the departure of Professor McMillan in 2015. He is currently serving a 2-year term in both positions.
Why has Commissioner Pilgrim not been appointed FOI Commissioner? The reality is that he cannot be appointed because he lacks the legal qualifications the legislation requires . But as Information Commissioner he is given the power by the legislation to exercise the FOI functions (along with the Information and Privacy functions – presumably to enable Information Commissioners to participate with the other Commissioners when necessary).
But that reality does not justify the failure to have a Freedom of Information Commissioner appointed with the requisite qualifications.
It is a further Executive Government downgrading of the model that the Parliament created. Reality cannot be avoided. Why is this not another rejection of the fundamental constitutional principles of the Separation of Powers and the Rule of Law by our Executive Government – in addition to the actions initially taken by the Executive Government of limiting funding when it was unable to secure the passing of its Bill to abolish the O AIC.
(ii) Reasons advanced for the Government’s present position?
The stated reasons appear to be the following –
“The government’s view is that the OAIC has been operating efficiently with a single person undertaking the role of the Australian Information Commissioner and the Australian Privacy Commissioner, whilst ensuring that FOI functions are fulfilled since July 2015. This has ensured that the objectives of the Freedom of Information Act 1982 are being effectively realised.”
We note that while it refers to the objectives of the 1982 FOI Act being effectively realised, it makes no reference to the AIC Act. Is this an implicit acknowledgement that the operation of the OAIC has been limited to what are described as the objectives of the FOI Act. That acknowledgement is reasonably accurate, bearing in mind that the impact of the funding reductions and the abandonment of the legislated Commissioner structure has been to
- effectively exclude the AIC Act functions from the FOI activities of the OAIC,
- limit its activities to the original objectives of the Freedom of Information Act 1982 plus the Privacy functions and
- take the FOI system back to where it was before the OAIC legislation was enacted,
The creation of the OAIC in 2010 originally advanced open government and increased the availability of information about governmental activities. The changes made in and since 2014- 15 mark the retreat from those objectives.
The Response also stated that
“The Australian Government proposes to leave the FOI Commissioner position vacant at this time. While ongoing funding was announced in the 2016 – 17 Budget, no funding was provided to fill the vacant FOI Commissioner position. “
(iii) Reasons advanced for the abandonment of the Commissioner structure? The justification for not appointing an FOI Commissioner and having one person performing the role of all three statutory Commissioners, appears to rely primarily upon the alleged efficient operation of the OAIC by a single person. Saving of funds is mentioned as also is realising the objectives of the FOI Act 1982 – but not the ACI Act 2010. That is understandable – what was done was contrary to those objectives.
(iv) Assessment. Of course, efficiency in any organisation is important. But so too is the quality of the discharge of the statutory functions of the organisation – here the responsibility of the three Statutory Commissioners. The AIC Act (sections 7 to 12 inclusive) spells out the functions of each of the Commissioners and sets up a structure under which the Information Commissioner is the Commissioner with overarching responsibility and the three Commissioners are to operate like a team in discharging responsibilities and sharing them under the leadership of the Information Commissioner.
A significant benefit of the reforms brought in with the AIC legislation has been that it established an independent statutory decision-making system that would address the challenge of providing access to government information to the community while at the same time protecting the right of individuals to privacy. The three Commissioner structure was, and is, central to addressing that challenge. It was and remains a best practice model. The 2013 Hawke Report was positive about its operations and identified aspects for further action to strengthen its remit.
Nothing was done by the Governments that followed the Hawke Report to consider and take up the recommendations of that Report. Instead, since the 2014/15 Budget, they first attempted to abolish the OAIC. While the OAIC still exists, the subsequent actions taken by Government after the failed attempt to abolish the OAIC, have effectively implemented the Government’s agenda. Not only have we lost a best practice model, we now have a model that can only damage community and government confidence in, and acceptance of, the Information system that remains. That will continue until the OAIC is provided with the three Statutory Commissioners and is adequately funded to perform all its statutory functions
The Response states that the present system “has ensured that the objectives of the Freedom of Information Act 1982 are being effectively realised”. The 2010 legislation, the AIC Act, at the centre of the matter, is not mentioned. If it was in fact intended to refer to that legislation as well, the objectives of both Acts are plainly not being met.
If, however, this Response is intended to be applied literally, it acknowledges that the action taken since the 2014 – 15 Budget has effectively taken the work of the FOI system back to the objects of the original Freedom of Information Act 1982.
We agree that that appears to be what has in fact occurred; for the actions of the Government since that Budget have, in practical terms, rejected the objective of strengthening the FOI system by giving effect to the AIC Act. In so doing, we have rejected our major commitments as a member nation of the OGP.
Have we also failed in another significant respect? For when the then Government’s attempted abolition of the O AIC by passing legislation to do so, and in 2014 and the years that followed, failed to obtain the consent, the Executive Branch of our Government has used its control of the Budget to prevent the OAIC performing its AIC Act functions.
As noted above, serious questions were raised publicly when this approach was taken by the Executive Branch of our government about whether this involved a contravention of two of Australia’s key constitutional principles– the separation of powers and the rule of law.  There is yet to be a public response from Government.
Finally, as already mentioned, we must bear in mind that as long as we allow a return to the objectives of the FOI act 1982 and the practical operation of our FOI legislation to be essentially confined to those objectives, we remain in on-going serious breach of our commitment as a member nation of the Open Government Partnership – in particular, the commitment to “promoting increased access to information and disclosure about governmental activities…” and “to consistently and continually advance open governance for the well-being of … citizens” .
We should remember the words of Minister Cormann, in the “Ministerial Forward to our first Open Government National Action Plan –
“The launch of this National action plan represents the start of the process of delivering more open government.”
- How should we proceed from here?
(1) Guiding principles. They are to be found in common-law principle and the guiding principles of the OGP.
(a) Common Law Principle; There is an ancient fundamental ethical and common-law, the public office public trust principle which requires that those in Government we entrust with power must give priority to the public interest over any personal or political interests.  This principle should also be respected by anyone in civil society who becomes involved in our Australian Open Government Partnership .
(b) The OGP’s objectives, principles and values. If these are addressed, the common law Public Office Public Trust principle will also be addressed. The objectives, principles and values of the OGP are set out in its Articles of Governance. Central commitments are identified above (fn.4). They include the requirement that participating nations be “ambitious” in addressing the OGP commitments and their NAP commitments.
As members of a participating nation in the OGP, we should be seeking and implementing steps that improve, strengthen and make more proactive our information system. For that we must consider what is the status quo and how it may be improved, strengthened and made more effective. This must also inevitably involve
- providing the resourcing (financial and structural) required to enable the information system to work at its optimum level and
- adopting best practice on the structure of relevant organisations.
As already noted, we are not looking at a major Budgetary challenge; at the time of the 2014 – 15 Abolition Budget, it was anticipated that the money saved by abolishing the OAIC would be a little over $2.5 million,
We must, from the outset, face the reality that the approach to the Information system since 2014 – 15 is a marked retreat from the OGP objectives. So too is the approach that has been taken to the specific Government commitment included in our first NA P of “ensuring the adequate resourcing of the OAIC to discharge its statutory functions…”
Since the lodging of our NAP with the OGP, the Government has been silent about the performance of that commitment. Have these aspects been overlooked?
- A related critical issue – Enabling the OAIC to perform its NAP responsibilities?
To date, consideration does not appear to have been given to the additional significant and demanding functions that the OAIC is required to perform in the implementation of the NA P. They come within the ambit of the stated statutory functions of the OAIC. They are substantial and extensive and require additional staff as well as the three Commissioners if the implementation of the NAP is not to fail – see attachment B.
Even if one were to assume that the OAIC had been funded and provided with three statutory Commissioners to ensure its “adequate resourcing …. to discharge its original statutory functions,” in this year and next year, how is it going to be able to also satisfactorily perform those statutory functions as well as the tasks that have now been added to them by the NAP for its implementation?
If the Implementation of the NAP is to be successful, we must, as soon as possible, ensure that the OAIC is provided with three statutory Commissioners and adequately financially resourced so that it can adequately perform both
- its long standing statutory functions under the FOI Act and the AIC Act and
- the new tasks it will need to undertake in the implementing Australia’s NA
If we fail to do this, we will remain in the situation first created in the 2014 – 15 Budget when the then government attempted to abolish the OAIC created by the Parliament and when that failed to secure the votes needed in the Senate, achieved that de facto outcome by not adequately resourcing the OAIC – the de facto abolition of the OAIC will continue.
- Conclusion. In late 2015, the Government decided
- not to try to abolish the OAIC, and
- to revive and confirm Australia’s commitment as a member of the OGP.
The Government has since then proceeded with carrying out Australia’s commitments as a member of the OGP by proceeding with the “co-creative” partnership between government and civil society to prepare a National Action Plan¶ and proceed with its implementation.
Generally, this co-creative process appears to have been carried out conscientiously and generally in accordance with the OGP requirements. Unfortunately, there is one particularly significant failure – the failure to honour the express commitment made in our NAP by the Government in commitment 3.1 to adequately resource the OAIC to perform its statutory functions and, thereby, strengthen open and accountable government -a failure that goes to the heart of our obligations as a member nation of the OGP.
We call on the Government to honour that commitment by appointing, as soon as possible, three statutory Commissioners (for at least a five-year term each) and restoring funds adequate to ensure that the OAIC can discharge its statutory functions, including its tasks in the implementation of the NAP that have been identified in the NAP.
We find it difficult to believe that the Government does not appreciate that this needs to be done.
If, however, the Government does not propose to honour its express commitment to adequately resource the OAIC, we ask that the Prime Minister at least honour and respect Australia’s commitment, as a participating member of the OGP, to open and accountable government and promoting transparency, publicly and fully explain to the people of Australia why the Government is not able to honour this express NAP commitment.
Attachment B; Attorney-General’s Response of 24 July 2017 to ART Submission.
Sent: Monday, July 24, 2017 3:11 PM
Subject: Reply to Tim Smith QC, ART – submission + request for OAIC funding information – OGP NAP Commitment 3.1 [SEC=UNCLASSIFIED]
Thanks again for your submission of 5 June 2017, following up on issues you raised in our consultation meeting with you on 31 May 2017 to discuss OGP Commitment 3.1 (Management and access of government information).
Your submission raised two key issues: (1) OAIC resourcing and (2) appointment of an FOI Commissioner.
I have put together the information below in consultation with AGD colleagues. I hope it is of assistance to you.
- OAIC resourcing
You have expressed concern that the OAIC is not adequately resourced to discharge all of its statutory functions since 1 July 2014 as originally intended. In our department’s meeting with you on 31 May 2017, you asked for information comparing OAIC funding in 2013-14 with current funding. You also stated in your submission that: ‘Since 2014-15 the funding provided to the OAIC has not been materially increased – even when it was decided in 2016 that the functions that had been passed on to the Ombudsman and the Attorney- General’s Department in anticipation of the abolition of the OAIC would be returned to it’.
The appropriation to the OAIC in 2013-14 was $10.624 million, prior to the Australian Government’s announcement that the OAIC would cease operation as part of its commitment to smaller government (OAIC Portfolio Budget Statement for 2013-14, p 376). As you are aware, in the 2016-17 Budget, the government decided not to proceed with these proposed changes and provided ongoing funding for the OAIC’s privacy and FOI functions (OAIC Portfolio Budget Statement for 2016-17, p 261).
In the 2017-18 Budget, the Government’s appropriation to the OAIC is $10.361m. This amount includes ongoing funding for new privacy functions allocated to the OAIC in 2015-16. The OAIC’s FOI funding reflects the streamlined approach adopted by the OAIC to its FOI functions in recent times. This also includes FOI funding returned from AGD. If the OAIC wishes to do so, it may request additional funding as part of the 2018-19 Budget process. The Government considers requests for funding in each Budget in accordance with whole of Australian Government considerations.
- Freedom of Information Commissioner
You have also expressed concern that the role of the Freedom of Information Commissioner remains vacant, by reference in your submission to the supplementary submission dated 14 November 2016 which ART made to the audit of the Administration of the Freedom of Information Act 1982 by the Australian National Audit Office.
The Australian Government proposes to leave the FOI Commissioner position vacant at this time. While ongoing funding was announced in the 2016-17 Budget, no funding was provided to fill the vacant FOI Commissioner position. As you are aware, on 13 October 2016, Mr Timothy Pilgrim PSM was appointed as both the Australian Information Commissioner and the Australian Privacy Commissioner for a period of two years. The Government’s view is that the OAIC has been operating efficiently with a single person undertaking the role of the Australian Information Commissioner and the Australian Privacy Commissioner, whilst ensuring that FOI functions are fulfilled, since July 2015. This has ensured that the objectives of the Freedom of Information Act 1982 are being effectively realised. The OAIC continues to exceed its benchmark of finalising 80% of FOI reviews within 12 months. In 2015-16, in spite of a significant increase in number, 84% were finalised within 6 months.
Kind regards, Kathryn
Senior Legal Officer
Information Frameworks Project (OGP NAP Commitment 3.1)
Information Law Unit
Civil Law Unit
Footnotes to Submission
 https://www.anao.gov.au/work/performance-audit/administration-freedom-information-act-1982,; para 1.20, Figure 1.6
 AIC Act 2010, s14 and s 11
 For example (under section 8 AIC Act 2010 it has not been, assisting agencies to publish information under the “Information Publication Scheme”, investigating an agency’s compliance, making reports and recommendations to the Minister concerning legislative change and/or administrative action, monitoring and investigating and reporting on compliance by agencies – all directed to strengthening the operation of the FOI system and thereby promoting and advancing open governance.
 , Articles of Governance;
 , Articles of Governance; https://www.opengovpartnership.org/sites/default/files/attachments/OGP_Articles-Gov_Apr-21-2015.pdf .
 . Prof Johan Lidberg – “Information access evolution: assessing Freedom of Information Reforms in Australia”, Australian Journalism Review, page 80 – http://profiles.arts.monash.edu.au/johan-lidberg/new-article-information-access-evolution-assessing-freedom-of-information-reforms-in-australia/
 The sentence was concluded with the following “and provided funding for this purpose over the next four years in the 2016 – 17 Budget”. We understand that to be a statement of its then intentions. Unfortunately, they have not been carried out.
 OGP Articles of Governance” p.3 https://www.opengovpartnership.org/articles-of-governance
 The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if: ….
(b)the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or
 OGP Articles of Governance – p. 20.
 S 54W (b) “ the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal’ ; http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/foia1982222/s54w.html
“2.17 While the ANAO notes OAIC’s explanation, it considers that 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.”
 S 14 AIC Act
 S 10 AIC Act
 The Hon John Dowd AO, QC. ( 17.8,2015) on behalf of the International Committee of Jurists ICJ) – http://icjvictoria.com.au/wp-content/uploads/2015/08/OAIC-letter.pdf
 OGP Articles of Governance – 20
 op. cit.,
 Minister responsible for coordinating Australia’s involvement in the Open Government Partnership on behalf of the Prime Minister.” National Action Plan, p. .3
https://www.accountabilityrt.org/cairns-tropical-writers-festival-tim-smith-on-democracy-at-the-crossroads/ where Sir Gerard Brennan is quoted – “It has long been an established legal principle that a member of Parliament holds “a fiduciary relation towards the public” and “undertakes and has imposed upon him a public duty and a public trust”. 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.
Turning to the question of enforcement, he said:
“True it is that the fiduciary duties of political officers are often impossible to enforce judicially; the courts will not invalidate a law of the Parliament for failure to secure the public interest – the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty. Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry “whatever it takes” is not consistent with the performance of fiduciary duty.”
 OGP Articles of Government – including pp, 2,,17,18,20,21.; https://www.opengovpartnership.org/articles-of-governance