George Brandis may not have answered our letter to him concerning the defunding of the OAIC with anything other than the justification of efficiency, arguing that abolition of the OAIC is “consistent with its policy to reduce the size of government and streamline the external review system to make it more efficient, less complicated and more effective. However he has possibly been more forthcoming in a letter in response to one sent to him by the International Commission of Jurists, Victoria (ICJ V). His response however relies on the same justification.

Their letter to the Attorney General argued that the government failure to fund the Office of the Australian Information Commissioner (OAIC) after it failed to have its legislation to abolish the office passed through parliament amounts to it “seeking to achieve executively what it cannot achieve legislatively“. This led them to invoke the Rule of Law and to argue a breach of the doctrine of the Separation of Powers. “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.” That is to say by taking executive action on effectively abolishing by defunding the OAIC, the Government is ignoring the principle of the separation of the Executive from the Parliament as a whole. This breach occurs because the Parliament has passed a  “law (that) requires that the statutory body continue in existence“, which is overturned by defunding the OAIC by the Executive without a new law.

The Attorney General, George Brandis has responded to the ICJ’s argument in a letter written by his chief of staff at his behest in reply to them.

This letter reiterated the arguments of efficiency, justifying their actions by referring to the bill that failed to pass Parliament, because “the Bill proposes (my emphasis) to abolish the OAIC and transfer its functions to other agencies“.  This is in line with their objective “to reduce the size of government and streamline the external review system to make it more efficient, less complicated and more effective“, ie the same efficiency argument that they offered us in response to our letter.

However there may be a limited concession in the final paragraph; “The OAIC’s privacy functions are already funded on an ongoing basis. Additional resources will be provided to the OAIC for the continued exercise of its FOI functions in 2015-16, and the OAIC will continue to perform those FOI functions necessary to ensure the ongoing operation of the FOI system.”

On the other hand, this promise is very dependent on the definition of “necessary”.


See also