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Thursday, October 30, 2014

Tell cross benchers in the Senate, give thumbs down to abolishing OAIC

I've written to the cross bench senators in the following terms and urge you to do the same:
Senator, I strongly urge you and your colleagues to vote against the Freedom of Information Amendment (New arrangements) Bill. Labor and Greens speakers in the House were right in arguing that no case has been made for the abolition of the Office of Australian Information Commissioner. Removing the independent monitor and 'champion' of transparent and accountable government is a retrograde step and will not "reduce the burden on FOI applicants" as claimed by the Attorney General.

For more information see this post yesterday

And this earlier analysis

Happy to talk at any time

Peter Timmins
For others interested: for ease of reference the case against, taken from previous posts:

 The Freedom of Information Amendment (New Arrangements) Bill will
."establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints 
Apart from claimed cost savings of $10 million over four years, the explanation for the decision announced in the Budget in May is that it would bring efficiencies by removing the two tier merits review now available. According to Senator Brandis:
The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.
Dismantling the office goes far beyond what would be necessary to achieve this purpose.

What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' 

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Despite this the 2013-14 Annual Report details significant reductions in delay.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources. 

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act.

Federally FOI was leaderless and rudderless until the establishment of the OAIC in 2010. The new arrangements take us back there.

So too synergies
Much was made in 2010 and since of the benefits of combining information access and information privacy functions in the one office, and conferring strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech

The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.
In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes with a role in merit review of FOI decisions in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania. In a report tabled recently in South Australia the Ombudsman recommends the establishment of an independent champion and monitor for FOI, something they have never had to date.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September last year. There is nothing in the report that justifies the abolition of the OAIC. Generally (page i)
the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent. It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect. Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.
More directly: (page 24):
The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.
And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)
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.
The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $861 for starters at the AAT. There are concessions that will protect some entirely and limit the fee for others to $100. Demand for review of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixty one dollars can be expected to work wonders on the numbers.

Unacknowledged cost to agencies
One of the changes arising from going back to the pre reform era involves reinstating mandatory agency internal review before a matter can be taken to the AAT. This will involve additional unbudgeted costs to agencies, already subject to resource limitations.

Overall it is a retrograde step. The changes wipe the review model adopted in the reform package of 2010, and it's back to where things used to be and we know they didn't work properly then.The OAIC disappointed in a number of respects, particularly the long delay in review decisions and the failure to really get stuck into those not playing fair and square, but it was under resourced and never had the opportunity or clout to really push the message that the government was serious about transparency and accountability-that's assuming it really was.

More powers, more resources and strong ministerial backing is what is needed, not the return to the status quo ante 2009.

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