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Wednesday, June 24, 2015

Former justices argue government plan to abolish OAIC raises rule of law and separation of powers issues

Tim Smith, David Harper and Stephen Charles, former justices of the Supreme Court of Victoria follow their previous opinion piece on the government's stalled attempt to abolish the Office of Australian Information Commissioner at the same time reducing the capacity of the office to fully carry out its statutory functions, with"Senate's last chance to save FOI watchdog and protect the rule of law published in Fairfax Media publications this week.

..section 61 of the constitution refers to the executive power of the federal government as extending to "the execution and maintenance of this constitution and to the laws of the commonwealth". It is arguable that the Abbott government has failed to "execute" and maintain the laws of the Commonwealth, and has thereby acted in a way that is contrary to two of our constitution's fundamental principles: the rule of law and the separation of powers....

The money available to the office is nowhere near enough to enable it to give effect to its legislative mandate. No longer can the office perform its key role of monitoring and supervising the FOI system. No longer can it advise the government on FOI matters. No longer can it consider complaints about the handling of FOI applications. Its ability to carry out these crucial functions has been negated. It is true that the Attorney-General's Department has absorbed some of these functions. But that is to defeat Parliament's original and ongoing intention....

Moreover, the office's ability to provide a free review of refusals of FOI applications has been severely truncated and the number passing to the AAT has increased by 47 per cent. The AAT will deal with them only if applicants pay the $816 (sic) fee...

Let us hope that, for the sake of the integrity of our parliamentary democracy, the rule of law and the separation of powers, the Abbott government withdraws the bill to abolish the office and provides it with the resources it needs to perform all its statutory functions.

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