OAIC, a casualty in the name of efficiency, or set to fail: you choose.

Plenty of futile back and forward between Attorney General Brandis and Senators Singh and Rhiannon during Senate Estimates for the Attorney General's portfolio left little time for scrutiny of the decision to abolish the Office of Australian Information Commissioner in the name of 'efficiency.' 

When it comes to that however it's a matter of blind faith (and I'm not one of the faithful) when the Attorney General asserts:

"The government is committed to transparency and openness and these measures serve those objectives. The budget measures have been designed and crafted to ensure that the transparency and openness of the system remains but that the system can be administered more efficiently."

I'll leave you to pick through the extract from the transcript below, which will surely test your mettle, noting tidbits such as 23 of the current OAIC 63.3 staff  will go as the rest are reassigned (I seem to recall the estimate of what would be required before the Office opened for business was 100?) ; Privacy Commissioner Pilgrim stands by earlier support for mandatory serious data breach notification legislation; and a single focus one sided discussion about FOI costs and charges, as per usual based entirely on agency estimates with no regard to the waste and inefficiencies in the way many chose to handle this function.

Starved to death?
In contrast there is a lot more insight than you'll find in the Hansard in the opinion piece by Emeritus Professor Richard Mulgan of the ANU in The Canberra Times, on Tuesday: "How the FoI watchdog was starved to death. The Information Commissioner was set up to fail: denied the resources it needed to do its job." 

We share a fair bit of common ground but wouldn't want you for that reason to miss these extracts (emphasis added)

... the budget papers say that ''simplifying and streamlining'' FOI review processes by transferring them from the OAIC to the AAT ''will improve efficiencies and reduce the burden on FOI applicants''. There is no mention of the fact that external reviews will now cost over $800 instead of being free. Certainly, if re-imposing a significant fee leads, as it must, to a substantial reduction in the number of appeals, those who can afford to seek a review can expect a faster, more efficient service. For this reason, the changes have been welcomed by representatives of media businesses, which have chafed at the increasing delays caused by the flood of less well-off appellants. But it is a deceitful sophistry to describe improved service caused by pricing out most would-be applicants as ''reducing the burden'' on applicants.

If the government had been sincere in its aim to simplify service while minimising burdens on the public, it could have adopted other reforms canvassed by Hawke, such as abolishing the second tier of appeal to the AAT, leaving the OAIC as the sole avenue of external review while imposing a small application fee..

.. ...The position of information commissioner was established in the context of the digital revolution, which has transformed the collection and dissemination of government data. One of the commissioner's main statutory functions was to report on ''the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the government''. As part of this responsibility, the OAIC has concentrated on issues of transparency and accessibility, particularly through government websites. In a number of reports and policy statements, it has stressed the values of open government and sought to encourage a culture of proactive disclosure, whereby agencies take the initiative in publishing the types of information and data that they would be willing to release under FOI...

In trying to fulfil this mission, the Information Commissioner has faced strong institutional headwinds. With a few notable exceptions, ministers and bureaucrats remain stubbornly attached to a culture of secrecy and confidentiality. The digital revolution and the internet may have greatly facilitated the mechanics of government transparency. But they have also spawned the continuous media cycle and the premium on government management of information. Agency compliance with the new information policies has often been perfunctory and tokenistic. Even so, as statutory champions of open government, the Information Commissioner and his office have at least flown the flag for greater government transparency. That they have not been able to achieve major cultural change within the bureaucracy is hardly surprising, given their modest resources, the absence of strong political backing, and their relatively brief existence. But if opponents of open government are happy to see the office abolished, that in itself may be some testimony to its effectiveness.

Senate Estimates extracts here.

Office of Australian Information Commissioner

CHAIR: Welcome, Professor McMillan, and officers. Do you wish to make an opening statement?

Prof. McMillan : No, Senator.

CHAIR: Senator Singh?

Senator SINGH: Budget paper No. 2, page 64, outlines the new arrangements, which includes the Information Commissioner and the FOI Commissioner being abolished. FOI complaints will now be handled by the Commonwealth Ombudsman; is that correct?

Prof. McMillan : Yes. A person currently has the right to make an FOI complaint to the Commonwealth Ombudsman and it is expected that that right will continue under new arrangements.

Senator SINGH: My question may have to go to the department, firstly. Was the Ombudsman consulted about the new functions being conferred on it?

Mr Fredericks : No.

Mr Wilkins : That is partly correct. I have had discussions with the Ombudsman over a long period of time about this issue, about the duplication between what he could do and what the Information Commissioner does do at the moment. Both of them have jurisdiction. So it will not be a surprise that this issue has been looked at.

Senator Brandis: Could I add to that answer, Senator Singh. You have been asking a number of agencies questions with a common theme, namely, whether such-and-such an agency was consulted in relation to budget decisions. You need to bear in mind that there was a change of government last year. When the new government came into office all ministers, as you would expect, had meetings with their agencies and the senior officials of those agencies, and, in the course of those meetings, very commonly had discussions about the operation of those agencies. We were tasked by the Prime Minister, from the beginning of the government's life, with keeping an eye out for the possibility for efficiencies.

Those consultations were not specifically in relation to the budget. But, that having been said, bids that various departments made, including mine, in the budget process were informed in part by what had been discussed during those meetings. There is nothing black and white about this. There are not usually—certainly not in my department—specific agency consultations about budget measures as a matter of routine. It can be on an as-needed basis but not as a matter of routine. But because the budget was being prepared quite soon after the new government was sworn into office, those meetings with agencies helped to contribute to ministers' thinking about budget measures.

Senator WRIGHT: Thank you for that detailed answer, Attorney. And thank you, Mr Fredericks, for outlining that, no, the Ombudsman was not consulted.

My point, Senator Singh—

Senator SINGH: No, you have answered—

Senator Brandis: No—

Senator SINGH: No, you have answered; you do not then get to have a dialogue with me across the table.

Senator Brandis: You cannot verbal the witness.

Senator SINGH: My further question—

Senator Brandis: You cannot verbal the witness.

Senator SINGH: No, it is on the record.

Senator Brandis: Your question—

Senator SINGH: I am not verballing the witness.

Senator RHIANNON: It is in Hansard. It is on the record.

CHAIR: Hang on.

Senator SINGH: Mr Fredericks said, 'No.'

Senator Brandis: Your question was ambiguous.

CHAIR: Order!

Senator SINGH: You cannot keep doing this.

CHAIR: Is someone taking a point of order?

Senator Brandis: Yes, I am.

CHAIR: Yes, what is your point of order, Senator Brandis?

Senator Brandis: You cannot characterise a witness—

Senator MARSHALL: I do not know whether the minister—

Senator Brandis: My point of order is that the senator cannot characterise an answer to an ambiguous question when the—

Senator MARSHALL: Hang on; I have someone on the phone who wants to take a point of order!

Senator Brandis: —ambiguity inherent in the question has been explained both by the secretary of the department and more fully by me.

Senator MARSHALL: This is a joke.

Senator SINGH: It is a joke.

Senator Brandis: I have explained that there were meetings.

Senator SINGH: This is not a point of order.

Senator RHIANNON: No, it is not a point of order. On a point of order, Chair.

Senator Brandis: Senator Singh chooses to say these were not consultations.

Senator SINGH: This is another tirade from the Attorney-General.

Senator RHIANNON: A point of order.

CHAIR: I am hearing a point of order.

Senator Brandis: It is a matter of characterisation. To verbal Mr Fredericks, as she has just done—

Senator SINGH: I have not verballed Mr Fredericks.

Senator Brandis: —is just dishonest, frankly.

Senator SINGH: I have not verballed Mr Fredericks.

CHAIR: Do you have a point of order, Senator?

Senator RHIANNON: Yes, I have a point of order. This is not a point of order. Could you rule on it so that we can get on with the inquiry, please?

CHAIR: If you had stopped the screeching going on, I would have. Senator Singh, could you perhaps repeat the question or rephrase it?

Senator SINGH: I can repeat the question: was the Ombudsman consulted about the new functions being conferred on it? Mr Fredericks answered, 'No.' Mr Wilkins then provided a little bit more detail and then the Attorney-General provided a different answer altogether.

Senator Brandis: Not a different answer altogether; I explained the process of meeting with these agencies.

Senator SINGH: I will go to my next question.

CHAIR: Go for it.

Senator SINGH: When was the Ombudsman notified of the new functions that are in the budget that he will be taking on? Or did he just find out about it in the budget?

Mr Wilkins : He would find out about specifically that in the budget context, yes.

Senator SINGH: What additional resources will the Ombudsman need to fulfil the role that until now has been handled by the Office of the Australian Information Commissioner in the main?

Mr Wilkins : That is a sort of 'how long is a piece of string' question, actually.

Senator SINGH: What are the additional resources that he will need?

Mr Wilkins : That is a matter for the Ombudsman to talk to—

Senator SINGH: So the department are not providing any budgetary resources?

Mr Wilkins : No, the Ombudsman is not part of this portfolio, Senator.

Senator SINGH: There is the budget saving that has been made through the abolition of the Information Commissioner and the FOI Commissioner, and the additional function that the Commonwealth Ombudsman will be taking on in handling FOI complaints will not come with any additional resources?

Mr Wilkins : Not from this portfolio, as far as I know. The Ombudsman already has this function, anyway, as Professor McMillan explained.

Senator SINGH: I just want to get it clear: the Ombudsman will not be receiving any additional resources for taking on this function?

CHAIR: Not from this portfolio, Mr Wilkins said.

Mr Wilkins : I cannot say that—from this portfolio.

Senator SINGH: From this portfolio.

CHAIR: Mr Wilkins, as I understand it, as it is not in his portfolio, is not capable of saying much more.

Senator Brandis: Or indeed, Mr Chairman, whether it is in the jurisdiction of this committee, because this committee is only reviewing the budget estimates of this portfolio.

CHAIR: Exactly.

Senator SINGH: Professor McMillan, I want to ask about privacy alerts and whether you support the introduction of mandatory notification requirements for serious breaches of data.

CHAIR: Senator Singh, this might have to be your last question because I have four other senators and 15 minutes left. So could you make this your last question?

Prof. McMillan : Legislation was introduced into the parliament under the previous government for mandatory notifications.

Senator SINGH: Yes, I have now introduced a private member's bill.

Prof. McMillan : It was called the privacy alerts bill. At the time the Office of the Australian Information Commissioner put out a statement saying that it supported the passage of that legislation. We have made no subsequent statement on the issue.

Senator SINGH: You obviously stand by that previous statement. Are you aware of what significant data breaches have occurred in the last few years?

Prof. McMillan : I will transfer that question to the Privacy Commissioner.

Mr Pilgram : Yes, we are aware, obviously, of a number of major data breaches that have occurred over the last few years. Just to give you an idea, they will vary in severity and the number of people that have been impacted. For example, in the current year, 2013-14, we have become aware of 67 matters. Again, I would stress that they vary between impacting on small numbers of people and large numbers of people. To give you one other figure in comparison, in the previous financial year, we were aware of 74 matters that we would describe as being data breach notifications.

Senator SINGH: Why is it important to Australians to be notified of breaches of their personal data?

Mr Pilgram : There is a question about whether or not people need to be notified on every occasion when there is a data breach. In some circumstances it may not be advisable to be notifying people because it could cause unnecessary concern when it is a minor breach. Our office has issued a voluntary guide for organisations to use to determine how they should respond to a data breach when they have that. As part of that guide it does set out the issues that they should consider in terms of whether they should notify the affected individuals or not, and whether they should notify our office or not. Those matters will relate to, again, severity and the likelihood of harm to the individual as a result of the breach. There are a number of issues.

Senator SINGH: Do you know of any other countries that are introducing data-breach legislation?

Mr Pilgram : I know it is an issue that is under active consideration in a number of other jurisdictions around the world. I cannot actually recall which countries have specifically introduced that type of law. I am aware that the EU have been considering it as part of the reforms to their directive. I am aware that it has been under active consideration in countries such as Canada and New Zealand.

Senator SINGH: Are you aware of any examples of—

CHAIR: We might have to leave it there for—

Senator SINGH: significant data breaches in Australia; recent examples at least?

Mr Pilgram : There have been a number of data breaches over the last couple of years that I have issued a report on, having concluded an investigation, and those reports are on our website.

CHAIR: Thank you, Senator Singh; thank you, Mr Pilgrim. Senator Seselja.

Senator SESELJA: This is just a quick question for Professor McMillan. Does your organisation keep stats on the cost to government of processing FOI requests? Do you have any of them handy in order to perhaps give me a bit of a picture of what is the annual cost, say, over the last two or three financial years? Is that something that you are able to provide here?

Prof. McMillan : The OAIC annual report contains detailed statistics on those matters. The costs are estimated in returns by agencies. From memory, the estimated cost for 2012-13 was $45.2 million.

Senator SESELJA: Is that for the last financial year?

Prof. McMillan : Correct.

Senator SESELJA: Do you have the figures to hand for the previous two financial years?

Prof. McMillan : Again, those statistics are there. All I can say is that there has been an increase, from memory, over the last three years. I think the cost estimated by agencies has risen about 60 per cent from, I think, roughly $24 million to the $45 million or something in that region. I can get the exact figures and provide them later, if that is okay.

Senator SESELJA: So a 60 per cent increase; that is very large. Over what period did you say there has been that 60 per cent increase?

Prof. McMillan : Over a three-year period there was a 60—

Senator SESELJA: Over a three-year period.

Prof. McMillan : Yes. We have just located the figures here. The estimated cost in 2011-12 was $41.7 million; in the last financial year, 2012-13, it was $45.2 million. Earlier in 2010-11, it was $36.3 million. Over that two-year period, on those figures there, the cost has increased—as estimated by agencies—from $36 million to $45  million.

Senator SESELJA: You think there has been a 60 per cent increase or thereabouts in recent years and you just need to go back another financial year or two; is that right?

Prof. McMillan : There has certainly been an increase, partly because of the added responsibilities cast upon agencies by Freedom of Information Act amendments in 2010, for example, to engage in an information publication scheme to publish documents on the disclosure log. There has been an increase in FOI requests, particularly an increase in non-personal information requests that agencies anecdotally say are among their more expensive requests.

Senator SESELJA: The legislative changes have led to more FOI requests, so there is a volume issue. What is the average cost, roughly, of processing an FOI request? Do you keep stats on that?

Prof. McMillan : The FOI commissioner, who is an expert in the procedures, is just rifling through for the estimated annual cost per request.

Dr Popple : I am just reading from our annual report. The average cost per FOI request determined in the financial year 2012-13 was $2,078; in the preceding year, it was $1,876; and, in the year before that, it was $1,799.

Senator SESELJA: Are they net costs or gross costs? Obviously there is cost recovery to some degree, so is that the gross or net cost to government?

Dr Popple : That is the gross cost. We also report on the amount of money recovered by agencies through charges under the FOI Act. Over the years—in fact, over more than 30 years—that has averaged at around two per cent of that cost.

Senator SESELJA: Two per cent of the total cost.

Dr Popple : Yes. So the cost has never been anything like cost recovery.

Senator SESELJA: So, of the $46 million, it might be around $1 million in—

Prof. McMillan : No. It was under $200,000 last year.

Senator SESELJA: Under $200,000.

Prof. McMillan : Yes.

Senator SESELJA: So that would be far less than two per cent, on my quick—

Prof. McMillan : From memory, I think it was about 1.79 per cent last year.

Senator SESELJA: So $200,000, though, was the number out of $46 million.

Prof. McMillan : Under $200,000, yes.

Dr Popple : I am sorry to correct you; $236,000 was recovered in charges under the FOI Act last financial year.

Senator SESELJA: Thank you very much for that. That is all from me, Chair.

CHAIR: Senator Rhiannon.

Senator RHIANNON: Professor McMillan, Dr Popple and Mr Pilgrim, thank you very much for your work. Professor McMillan, is it correct that OAIC will lose 63.3 full-time equivalent staff; is that the correct number?

Mr Pilgram : I am sorry; 'will lose'—

Senator RHIANNON: Yes.

Mr Pilgram : I am sorry, Senator, but I am having trouble hearing.

Senator RHIANNON: I am just trying to get the exact number of full-time equivalent staff.

Mr Pilgram : Yes. The budget-funded positions in the office at the moment are 63.3 staff. The budget papers estimate a saving of 23 positions. Of course, it is proposed that there will be a new office of the information commissioner and the staff numbers for that, as I understand it, have not yet been completely clarified. Also, there will be a transfer of an estimated six staff positions to the Attorney-General's Department for functions that will be discharged there and one staff position to the Administrative Appeals Tribunal.

Senator RHIANNON: Could I just get an idea of how many will be lost to the work? Some are going to be transferred. How many in total will be transferred—just so we can get an idea of what we are going to lose?

Prof. McMillan : It is probably better that detailed questions about staff positions and savings are directed to the department which has responsibility for those aspects of the budget.

Senator RHIANNON: Could the department just give us a figure on the number lost? I am short on time and I am just after a clear figure, if that is possible.

Mr Minogue : It is very difficult to give a precise figure, and to some extent it would be unnecessary and imprecise to do so. Essentially, this is a process that we will be working through with the commission in relation to both the privacy ongoing functions and some of the FOI functions that will come to the department. We will be working with the commission's office to do the best we can. But, yes, there will be some implications for staff; there is no doubt.

Senator RHIANNON: So, Attorney-General, is this your broken promise moment, considering that prior to the election you gave a clear commitment—to directly quote from your website—to restore accountability and improve transparency measures to be more accountable to you? Then your Prime Minister, when he was opposition leader, on 9 August said, 'The last thing we want to do is to hide anything from the Australian people.' How can removing any number of staff, when the workload in this area is increasing, assist the public to readily understand the workings of government?

Senator Brandis: Senator, if I may say so, that is the sort of absurd assertion I would expect from a former member of the Communist Party.

Senator RHIANNON: On a point of order—

Senator Brandis: No promises have been broken.

Senator RHIANNON: Attorney-General, you specialise in insulting people when you are hard up for an argument to actually answer a question.

CHAIR: What is your point of order?

Senator RHIANNON: The point of order is relevance.

CHAIR: Do you claim to have been insulted or misdescribed or something?

Senator RHIANNON: No. Do not show your bias as well, Mr Chair.

Senator Brandis: I am just explaining your background. You used to be proud of it, Senator Rhiannon.

Senator RHIANNON: I have always been very open about my background. My point is that you use insults when you are hard up for an answer.

Senator Brandis: You may say that it is an insult, but you used to be proud to be a communist.

Senator RHIANNON: The point of order is relevance. Could you draw him back to the question so he will answer it and not waste time, and then you will rule that my time has finished?

CHAIR: Senator Brandis, if the senator's former membership of the Communist Party is relevant to an answer to her question, it is in order—

Senator Brandis: I am just, by way of—

CHAIR: But I cannot really see it myself.

Senator Brandis: No. Mr Chairman, I am, just by way of preamble, exposing the grossness of the hypocrisy of somebody like Senator Rhiannon pretending to be interested in transparency and open government. That being said, the answer to your question, Senator Rhiannon is this: no, it is not a broken promise. The government is committed to transparency and openness and these measures serve those objectives. The budget measures have been designed and crafted to ensure that the transparency and openness of the system remains but that the system can be administered more efficiently.

Senator RHIANNON: Thank you. Professor McMillan, or maybe this is for Mr Pilgrim; it is about privacy complaints. I understand that privacy complaints—I saw these figures on your website—are expected to increase by 100 per cent and the total workload of OAIC is expected to increase by up to 20 per cent. How do you see this workload being managed under the new arrangements? Again, I might need to go to Mr Wilkins or somebody else; but could you comment, please.

Mr Pilgram : To the extent of commenting on the numbers, I will just give you two figures. The figures for the financial year 2012-13: we received 1,496 privacy complaints. In the year to date, 2013-14, we have received approximately 3,900 complaints. So there has been a significant increase in the number of complaints coming through to the office. In terms of how we are approaching those, we obviously have processes for dealing with assessing the complaints and looking at the ones that need to be dealt with immediately and triaging those, and we are looking at processes for streamlining how we will respond to those.

As part of the new privacy reforms that came in on 12 March, we now have mechanisms by which we can formally recognise external dispute resolution bodies that will be able to handle privacy complaints in certain areas, such as the credit provisions under the act. We are going to be meeting with those external dispute resolution bodies to work with them on their taking up some of the complaints that come through in particular sectors. In terms of the ongoing impact of the changes, they are matters that we are in discussion with the department on at the moment.

Senator RHIANNON: I also noticed in the budget papers that, from 2016-17 onwards, disbanding the OAIC will save the government $10.4 million a year. However, the agencies who will now be responsible for those functions will only contribute an extra $6.9 million a year from 2016-17 to fund these extra functions. How will this shortfall impact on OAIC's former functions? The department?

Mr Minogue : The total saving is identified as $10.2 million over four years. In relation to the ongoing functions, either through the Privacy Commissioner or the merits review functions through the AAT, all of those functions coming to the department, the savings are the net of the ongoing resourcing for those functions and the functions no longer performed.

Senator RHIANNON: Can you identify what functions will be done perhaps not so thoroughly? How you are going to manage that workload, considering that we have just been given evidence about the increasing workload?

Mr Minogue : I do not think it is done 'not so thoroughly' or otherwise. I think, as the attorney mentioned, the purpose behind the budget measures and the decision government made was to reduce duplication and increase efficiency.

Senator RHIANNON: You are quite seriously saying that, with fewer resources, you can be more efficient in dealing with this increased workload. Is that a summary? I am not trying to verbal you; I am just—

Senator Brandis: That is what efficiencies are about, Senator Rhiannon. I know that the Eastern bloc did not operate according to that system, but that is the way capitalist economies operate. Even in the public sector, we can have efficiencies. In fact, one of the reasons there is an efficiency dividend, a program of both the previous government and the current government, is to encourage agencies to do more better with less.

Senator RHIANNON: But isn't the key issue the efficiencies—

CHAIR: Senator Rhiannon, I have given you—

Senator RHIANNON: This is my last question. Isn't the issue—

CHAIR: Senator Rhiannon, I have given you my time and we must now move on to the Federal Court and the Federal Circuit Court. Thank you very much, Professor McMillan.

Senator RHIANNON: This is shocking.

CHAIR: I had questions to ask, but I gave you my time, Senator Rhiannon.