OAIC and the OGP; Issues

The Hon George Brandis MP
Attorney-General
Parliament House
Canberra ACT 2600

6 December 2017

Dear Attorney-General

On 19 October 2017 I received a copy of your 11 October letter to my local Member, the Member for Kooyong, (Mnet GenerL3 July 2017) concerning the OAIC and the OGP.

It is an important statement of the then position of the Government on those matters. It does not, however, provide any insight into the facts relied upon.

When I received it, I had been considering with colleagues the ANAO’s Performance Audit of the OAIC together with the OAIC 2016 – 17 Annual Report and the OAIC’s first Corporate Plan. As they are not reflected in your 11 October letter, they do not appear to have come to the attention of those advising you at the time of that letter. That is unfortunate; for they spell out the realities.

 Your letter summed up the current OAIC situation in the following terms:

“The Australian Government recognises the importance of the OAIC in discharging Australia’s responsibilities under the Open Government Partnership, and believes that current funding levels are appropriate for the OAIC to exercise those responsibilities. In the 2016-17 Federal Budget the Australian Government provided ongoing funding to the OAIC to undertake its privacy and FOI functions. Funding and functions that had previously been transferred to other agencies in 2014-15 were mostly returned to the OAIC, and the unfunded functions that had transferred to the Commonwealth Ombudsman were also returned.”

To summarise, the “belief” expressed is that the funding had changed from temporary to continuing and that

  • the OAIC has sufficient funds to perform all its Privacy and FOI statutory functions and to carry out the tasks it has been given in our first NAP and that
  • this has been the case since at least the 2016 – 17 Federal Budget.

The letter also records your belief that the OAIC has

“ ….. continued to operate efficiently whilst ensuring that all of its FOI functions have been fulfilled under this model since July 2015” and “has made significant efforts to streamline its procedures and … is effectively managing its workload with the current funding arrangements.”

The abovementioned publications – the Performance Audit, 2016 – 17 Report and Corporate Plan reveal a very different assessment of the level of funding provided, where it has been provided, the work performed and the quality of the performance of the functions performed. Much needs to be addressed.

  1. The level of funding the privacy and FOI functions of the OAIC (for further details and information about this and following paragraphs – 1 to 5 – see Attachment A)

In and since 2014 – 15, the funding for FOI functions was, and continues to be, halved from $5 million to $2 to $2.5 million with overall funding for FOI and Privacy ranging between $9 million-$11 million.

  1. Where has it gone?

The funding appears to have been spent predominantly on the Privacy functions not the FOI functions; inter-alia, presumably enabling Privacy regulatory action in respect of

  • the Information Publication System (IPS) and,
  • the publication of the Regulatory Action Plan and a Guide.

The ANAO Report was critical of the fact that the OAIC has not been addressing these matters within the FOI function areas.

  1. The performance of the FOI functions

The pre-dominant OAIC FOI functions have been the handling of FOI merits reviews and complaints.  The demands of merits reviews have apparently continued to rise.

The ANAO Report explored the function of “monitoring, investigating and reporting on the compliance by agencies with the Freedom of Information Act 1982. This confirmed continued publishing of

  • Annual Reports (to publish statistics and other information received from entities and commentary).
  • Publication of statistics (compilation of data self-reported by entities and not verified)

but not two major statutory FOI functions

  • Commissioner initiated investigation reports or
  • surveys of IPS compliance.

The Report acknowledged the provision of guidelines but it was critical of the absence of a statement by the OAIC of its regulatory approach in relation to FOI.  The OAIC has since included a commitment in its Corporate Plan to develop that statement.

  1. Quality of performance of particular functions

The ANAO Report is critical of

  • the absence of any system for verification of statistical information from entities
  • the failure to:
  • monitor the operation of the Information Publication scheme which is intended to provide and underpin a pro-disclosure self-driven culture; and
  • conduct the first scheduled review of its operation in May 2016, a failure involving the three entities monitored by the ANAO, including the Attorney-General’s Department; and
  • the use by the OAIC of section 54 W “as a workload management tool”
  1. The operation of the statutory three Commissioner structure

This matter was not reviewed by the ANAO Report.  It is, however, a very serious matter.

Over the last three years, the Government has moved from a best practice three Commissioner system for leading and monitoring our FOI and Privacy systems to a FOI system where the three statutory Commissioner roles are conducted by the original Privacy Commissioner. The current Commissioner cannot be appointed FOI Commissioner because he does not have the legal qualifications required by the legislation for that position. While FOI guidelines are being provided and the OAIC is involved in the review of FOI decisions and considering complaints, Australia has been taken back to the original reactive system. This has occurred in parallel with the significant underfunding of the OAIC since the 2014 – 15 Budget.

In doing so the Government appears to have lost sight of the importance for our whole community of strengthening open and accountable government and have been continuously in breach of Australia’s commitments as a member nation of the OGP.

In the 2017-18 Budget Australia has also breached the express Government commitment made in late 2016 in Commitment 3.1 of the NAP “The Government is committed to ensuring the adequate resourcing of the OAIC to discharge its statutory functions,…”. No such provision has been made and there is yet to be a public explanation for that failure to so do.

Relevant concerns to be borne in mind

The situation is not one where the usual “current fiscal environment and other competing priorities” justify the action taken.  Re-funding and the appointment of two Commissioners will not have a significant budgetary impact. Is not the total provision involved of no more than $15 million? With relatively minimal expenditure of the taxpayers’ money, their rights to privacy and access to government information should be able to have a best practice system restored and operating. With it would come significant benefits for the Australian community.

We seek the assurance, that Attorney-General’s Department, the lead agency for Commitment 3.1 will act to implement the above specific commitment of the Government and will engage as soon as possible with the Open Government Forum to formulate the action plan required to do so.

By doing so the ancient, but often forgotten, public office public trust principle will also be respected and applied.

If there is any way in which the Accountability Round Table can assist, we would greatly appreciate the opportunity to do so.

 

Yours Faithfully

Hon. Tim Smith QC

Chair, Accountability Round Table

(For our follow up, see Submission to Attorney General on OAIC )