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Friday, October 03, 2014

Government fails to make the case for abolishing information commissioner

In introducing the Freedom of Information Amendment (New Arrangements) Bill 2014 in the House yesterday the government argued that the Office of Australian Information Commissioner should be abolished primarily because of complexity in the system of external merits review for FOI matters. 

If complexity was the issue it had a number of options to improve on the model adopted in 2010, short of junking the whole thing, should it have taken the trouble to look, think and discuss beyond the confines of the Attorney General's Department. 

After all, the limited review of the FOI act in 2012-13 by Dr Hawke (still without a response 18 months later) concluded that the establishment of the OAIC "has been a very valuable and positive development in oversight and promotion of the FOI Act." (page 24). 

And specifically on the complex review system cited by the government as the major policy reason for the decision: 
"The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1." (Page 36)
Apart from 'removing complexity' the government claims measures in the bill will save $10.2 million over four years, "part of the government's continuing commitment to repair the budget" and the Explanatory Memorandum adds that it "furthers the government's commitment to smaller government."

There is no mention in the Second Reading speech that abolition of the office will remove the independent statutory monitor of compliance with the FOI scheme, the leader responsible for promoting a pro-disclosure culture in government and awareness of the right to access government information more broadly. Resource limitations and other factors may have limited the office capacity to get far in all this, but abolishing it certainly won't advance us on this never ending journey.

The absence of such an office was identified as an impediment to effective administration of the FOI Act as long ago as the joint 1995 Australian Law Reform Commission and Administrative Review Council Open Government report and later by the Commonwealth Ombudsman. It took 15 years for government to act on this. The Abbott government is taking us back to the dark days where FOI has 'orphan' status within 12 months of taking office.

No mention also of the cost to agencies of the reintroduction of mandatory internal review before an application for full independent merits review to the AAT, or the cost to applicants if they seek to take matters further with an AAT application fee in most instances of $861. 

No mention also of the abolition of the commisioner's function to provide strategic advice to Government on broader information management policy and practice, or abolition of the Information Advisory Committee.

Whereas up to now an agency has been required to have regard to guidelines issued by the independent commissioner in administration of the FOI act, in future those guidelines are to be issued by the Attorney General.

Debate was adjourned after the minister's second reading, but there is no doubt it will sail through the House. Let's hope there is some real scrutiny in the senate of what is a retrograde step for transparency and accountability.

Paul Farrell has written this in The Guardian today.

In short: 
The Office of the Australian Information Commissioner (OAIC) will be abolished. 
The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.
The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions.
Those waiting in the OAIC queue for review will be transferred to the AAT-no application fee for them.
Mandatory internal review of FOI decisions required before a matter can proceed to the Administrative Appeals Tribunal. The tribunal will receive a funding boost to assist with processing FOI reviews.
(Oh almost forgot: Continuation of the situation that there is no right to internal review of a decision made by a minister or the principal officer of an agency.
The only extension of time for dealing with an application to an agency or minister is where this is agreed with the applicant. The only 'incentive' for an agency or minister to make a decision in time is that no charges can be imposed for dealing with the application, but that hasn't produced uniform on time decisions so far.
And a deemed refusal - when a decision is not made within the statutory time-frame - is taken to have been made by the minister or principal officer.
In all these cases the only recourse for an aggrieved applicant (or aggrieved third party with an established interest in the matter) apart from a complaint to the Ombudsman in the case of an agency is to seek merits review from the AAT,)
The  Ombudsman will be responsible for investigating complaints about actions taken by an agency under the FOI act-but apparently isn't to receive additional resources for this purpose.
The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.

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