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Greg Weeks: Comment on Australia: A Disappointing Backward Step in Information Policy

Gregory WeeksAustralia’s Coalition government handed down its first Budget on 13 May 2014, which has since proved controversial in several respects. The Budget’s impact on groups such as the elderly, the unemployed, the disabled and University students, as well as on indigenous programs and the environment has occupied much of the commentary and has additionally generated significant opposition. This post will look at a significant casualty of the Budget’s cuts to public expenditure which has attracted very little attention but which will nonetheless be keenly felt.

The Office of the Australian Information Commissioner (OAIC) was created by statute in 2010, as part of the Government’s long-awaited reforms to the Freedom of Information Act 1982 (FOI Act) and commitment to Open Government, and commenced its operations on 1 November 2010. The advent of the OAIC was particularly welcome to those who had become discouraged with the operation of the FOI Act over the course of its existence. In particular, FOI was still steeped in a culture of official secrecy, typified by the capacity of Ministers to provide conclusive certificates that could exempt documents from an FOI claim (although these were abolished in 2009). The creation of the OAIC signalled a policy preference in favour of government agencies initiating the publication of information, even if it had not been requested under the FOI Act.

In his Budget speech, the Treasurer (the Hon Joe Hockey) announced the Government’s decision to disband the OAIC with effect from 1 January 2015. Although, at the time of writing, the Budget has not yet passed both Houses of Parliament (due mainly to a highly fragmented Senate since several new Senators took office on 1 July 2014), the abolition of the OAIC has been treated as a practical reality since the Treasurer’s Budget speech and the OAIC has plans in place to finalise its workload by 31 December 2014. The important work which has hitherto been performed by the OAIC under the FOI Act and Privacy Act 1988 will continue elsewhere but the significant achievements of the OAIC over the last four years in the area of information policy will cease.

In an immediate and dignified response to the Budget announcement, the Australian Information Commissioner (John McMillan), Freedom of Information Commissioner (James Popple) and Privacy Commissioner (Timothy Pilgrim) acknowledged that the OAIC would be disbanded and set out some of the OAIC’s most significant achievements since it commenced operations, in the areas of Information Policy, FOI, Privacy and external engagement. The productivity of the OAIC in these areas will need to be matched from 1 January 2015 by a range of agencies. While the Privacy Commissioner will continue to administer the Privacy Act from Sydney in 2015, the administration of the FOI Act will be absorbed into the Attorney-General’s Department and the OAIC’s merits review and complaints functions with respect to the FOI Act will again be performed by the Administrative Appeals Tribunal (AAT) and Commonwealth Ombudsman respectively, as they were prior to 2010.

While the OAIC’s role in developing information policy is the most obvious area which will cease altogether after the end of 2014, the external engagement and consulting practices of the OAIC are also unlikely to be replicated elsewhere. The OAIC has, since its inception, been active at working both with government and with private organisations and individuals in order to improve information policy. At a time when government has so much information and has a greater than ever capacity to obtain and retain information from its citizens, the work of an independent agency with the remit to look into issues of information, privacy and FOI policy would add a great deal to the public debate. Its loss may be more significant than has yet been realised.

Further, in reversing several of the reforms to the FOI Act passed in 2010, there is scope to return to the inefficiency that preceded the creation of the OAIC. In particular, I doubt that the AAT will be able to match the OAIC’s record with regard to dealing efficiently with requests for merits review from decisions made under the FOI Act. There are already significant delays in obtaining hearings in the AAT and, with many AAT members unsure at the time of writing whether or when they will have their contracts renewed, it is hard to see this situation improving in the short term. We may be returning to an era in which obtaining information from government is beset with great practical difficulties.

Finally, the closure of the OAIC also marks the loss to the Australian public of the great service of Professor John McMillan AO. It is hard to nominate anybody who has done more to give Australians access to government information over the course of the last forty years. His role as Australian Information Commissioner is, in many ways, the pinnacle of Professor McMillan’s outstanding career, in which he has also served as a Professor at the Australian National University and as Commonwealth Ombudsman. Australians owe him a debt of gratitude for this great service.

The closure of the OAIC was not the headline issue on the morning after the 2014-15 Budget was delivered. It is unlikely to rate a mention in the news even on the day that it ceases to operate for good. Australians may never know what they are missing but it is clear that they will in fact be missing a great deal indeed.

 

Some of the material in this comment was previously published by LexisNexis as an editorial in the Australian Administrative Law Bulletin, of which Greg Weeks is the General Editor. He is also a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent.

Suggested citation: G. Weeks, ‘Comment on Australia: A Disappointing Backward Step in Information Policy’ U.K. Const. L. Blog (6th September 2014) (available at http://ukconstitutionallaw.org).

3 comments on “Greg Weeks: Comment on Australia: A Disappointing Backward Step in Information Policy

  1. Leah Grolman
    September 6, 2014

    The OAIC will be missed. Having a body dedicated to processing requests for information is important and will, I suspect, become a longed-for privilege of the past once the OAIC is disbanded.

    Individuals and organisations with applications currently with the OAIC awaiting a review decision have been told that they should expect their applications to be dealt with by the AAT but this is not a certainty until a bill is introduced containing the OAIC’s abolition and any accompanying transitional provisions. The OAIC has told the Public Interest Advocacy Centre that they expect a bill to be introduced later in September (fingers crossed).

    Aside from the vacuum in information policy-setting which you points to, my principle concern is that the AAT’s limited resources probably preclude it from approaching FOI requests in as informal a way as the OAIC, negotiating with parties and helping them to reach compromises, acting as a sort of go-between between government and the people. The AAT is also expensive – sure, there is a chance that matters presently before the OAIC will be transferred to the AAT with a reduced, or no, fee come December-January; I think it would be very optimistic to hope for the AAT to perform the reviews currently performed by the OAIC on a no-fee basis for new applicants. This will make it more difficult to have government decisions to refuse access to information reviewed – an access to justice issue that really does need to be considered by those drafting laws for the post-OAIC era.

    Thank you Greg for this post.

  2. Pingback: Janina Boughey and Greg Weeks: Comment from Australia: Australian Government Scraps Peak Administrative Law Advisory Body | UK Constitutional Law Association

  3. Pingback: Comment from Australia: Australian Government Scraps Peak Administrative Law Advisory Body | UK Administrative Justice Institute

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This entry was posted on September 6, 2014 by in Australia and tagged , , .
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