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Wednesday, October 29, 2014

Can the Senate save the OAIC, and FOI from a giant step backwards?

The House of Representatives yesterday (in an hour) passed the Freedom of Information Amendment (New Arrangements) Bill to disband the Office of Australian Information Commissioner with effect from 31 December. Opposition speakers Shadow Attorney Genereal Dreyfus, Sharon Claydon and Graham Perrett and The Greens Adam Bandt spoke against the bill, presaging a situation in the Senate where the cross benchers will decide its fate.

It should be opposed. 

The government's arguments for the initiative, on this occasion summarised by Parliamentary Secretary to the Minister for Communications Paul Fletcher, are weak, revolving around the claimed complexity of the system of review of FOI decisions and the need to simplify and streamline arrangements. 

No one on the government side has explained the leap from a shared view of many including the Australian Information Commissioner that some changes to the review system might overall be helpful to how abolishing the Office will "improve administrative efficiencies" and even more laughably, "reduce the burden on FOI applicants." 

As Adam Bandt (The Greens) said
"..this is not about addressing real issues in the system. It is not about addressing technical questions that have arisen during the brief operation of a system that may have had some flaws and may have introduced some level of complexity. Some might say it needs some tweaking. If that is the case then have a proper review of it and come back with some suggestions to make the system work better. Do not abolish it completely. That is the direction that this government is going."
Parliamentary Secretary Fletcher, apparently with a straight face, told the House the "Abbott government is strongly committed to transparent, accountable and open government." Mark Dreyfus more accurately captured the mood of many of us:
"Unsurprisingly, I regret to say, given its liking for secrecy the Abbott government is now seeking to abolish the Office of the Australian Information Commissioner and to introduce other measures to close the door on open government in our nation—and it is doing so without any mandate from the public that elected it. This is a government that wants to hide what it is doing from the Australian public and, when you look at what we do know about what the Abbott government is doing, you can see why they would want to be hiding. This government has been seeking to work in secrecy and to avoid its obligations under the existing FOI Act since it came to office."
As non government speakers pointed out, the just published OAIC annual report suggests some of the delay problems are dissipating:
In 2013-2014, the Information Commissioner indicated that many problems of backlog had been resolved and the office had improved response times despite a significantly increased workload. In his media statement releasing the annual report, the Australian Information Commissioner, Professor John McMillan AO, said: "The OAIC made excellent progress in resolving freedom of information (FOI) matters, completing 646 Information Commissioner reviews, an increase of 54% from last year. Another success was to reduce the time taken to commence work on new review applications, down from 206 to 40 days."

The OAIC also processed 2,456 extension of time requests and notifications and responded to 1,903 phone and written enquiries about FOI. This dramatic improvement is evidence that in just the first two years of operation the OAIC is making real progress in providing information to the Australian people and helping to ensure open and transparent government. (Sharon Claydon, ALP Newcastle)
No government speaker in the few words uttered to justify the initiative since the surprise announcement in May has mentioned the broader ramifications of disbanding the office.

As Adam Bandt said:
"What we did not hear in the minister's second reading speech was that the abolition of the office is going to remove the statutory monitor of compliance with the scheme. This is very significant. This is a seismic shift in how government decision makers think about the openness of their information. This is not something that ought to have been new to the Australian decision-making system. Back in 1995 the Australian Law Reform Commission recommended that we take action on this front. It took 15 years for the government to act. I commend the previous government for at least acting. Having taken that step that has been called for since 1995 and having had now a couple of years of operation of this, which is generally receiving positive comments, with the caveat that it should be given a bit more time to let it prove itself, the government is now taking us back to the situation before anyone took any steps at all. We are going to have a gap in our system and there will now not be an independent officer charged with driving that kind of accountability and transparency within the government. Similarly—and this was also not referred to—we are going to now not have an officer charged with that provision of strategic advice to the government on the broader questions of information management."
No one outside government was consulted before the May decision or since that I have heard. In the normal course of things a bill like this would be referred to a senate committee for report. Despite expected government howls that the legislation must pass and pass now, given the budget allocation for FOI related functions runs out at the end of December, non government senators should reject the bill or at least insist on a moment or so for close examination of an initiative that goes to central questions about the management of transparency accountability and open government. 

They'll find that apart from the broader world out there that sees the information/foi commissioner role as essential in any information access scheme worth its salt, Queensland, NSW, Victoria and Western Australia all operate versions of the system that the Federal government claims is overly complex and costly and must be disbanded.

How it might be best done is the question the government never asked.

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