Former judges verdict: government handling of OAIC abolition breaches fiduciary duty, maybe the Constitution

Three former justices of the Victoria Supreme Court-Tim Smith, David Harper and Stephen Charles- writing in The Age describe as "deeply disturbing" the government's actions in sitting for seven months (and counting) on the bill in the Senate to abolish the Office of Australian Information Commissioner and not fully funding the statutory FOI functions of the office in the meantime. 

They also raise issues that go to government responsibility as our 'public trustee' and its obligations under the Constitution to give effect to the laws of the Commonwealth.

An extract:

 ....its fiduciary duty to us as our public trustee has been breached. That duty is to place the public interest first. Where now is the election commitment to increased transparency and accountability? Where now is last February's promise that "good government" has begun?

And what of its obligations under our constitution? The constitution (section 61) says the executive government's power extends to the "execution and maintenance of this constitution and of the laws of the Commonwealth". Accepting that "execution" means "giving effect to", what has in fact occurred is the opposite of "giving effect to" and of maintaining the laws of the Commonwealth. Where does the executive government claim to get the constitutional power to not only change a Commonwealth law but also do so in such a way as to effectively repeal it when it has no power to legislate? Under our constitution, that power rests with the Parliament. Accepting that proposition, on what basis may the actions of the executive government be said to have given effect to and maintained the constitution?

In addition, can the government claim that its conduct otherwise maintains the constitution? Does its conduct involve both a denial that it, the executive branch of government, is subject to the laws made by the Parliament and also a claim that it can act to alter the operation of the laws of the Parliament without its consent. If so, does that constitute a failure to honour and so maintain two fundamental principles that underpin our constitution and our democracy – the rule of law and the separation of powers?

These are all important questions that need to be asked and answered.

Let us hope that the Senate budget estimates this week will do so by shedding further light on the detail of what has occurred. Let us also hope it will reveal that the government has acted on a valid legal basis and what that is. Finally, let us hope that the government will also look afresh at the matter as public trustees should and give priority to the public interest by adequately funding the 2010 statutory system. For that will help to promote open government, help to deliver "good government", reduce the risk of corruption and assist economic growth.