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Friday, July 31, 2015

Australia going backwards on protection of privacy and information access

At a time when threats to privacy abound including from a federal government that lays claim to a watchdog role to safeguard our right to privacy, a government whose leader before the 2013 election committed to increasing government transparency and accountablity, Australia today has no permanent federal information commissioner, no federal privacy commissioner, and no federal freedom of information commissioner. 

The Office of Australian Information Commissioner established in 2010 to enable the commissioners to carry out their functions with an initial estimate of staff required of 100, now has around 65.

Attorney General Brandis is presiding over the erosion of protections put in place to safeguard the right to privacy and promote and oversight the exercise of the right to access  government information. 

Australian Information Commissioner Professor John McMillan resigned today to become NSW Ombudsman.

(Open and Shut joins the OAIC in expressing thanks for his many years of service to FOI and other causes, in and outside government.)

Freedom of Information Commissioner Dr James Popple departed in December 2014 to take up an appointment to the Administrative Appeals Tribunal and was not replaced.

Privacy Commissioner Timothy Pilgrim's five year appointment expired on 19 July. No one has been appointed to fill the position. Pilgrim was appointed Acting Australian Information Commissioner for three months.

As passed by Parliament, the Australian Information Commissioner Act established the OAIC consisting of three information officers: the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner. The functions of the commissioners are set out in sections 7, 8 and 9, and reproduced below.

Something Some - many- things functions cannot be carried out by one commissioner instead of the three legislated by parliament in an office with a reduced staff compliment as a result of budget allocations in the last two years.
Parliament has not passed the government's bill to abolish the OAIC.

The bill has been before the Senate since October 2014 and not brought on for a vote because there is no majority in favour.

Tim Smith QC of Accountability Roundtable and a former judge of the Victorian Supreme Court in correspondence with Attorney General Brandis about the FOI cutbacks submits the government is seeking to achieve its goal through non legislative means, ignoring its obligation to give effect to the law as it exists, a duty that remains until such time as Parliament rescinds the Australian Information Commissioner Act:
not only are the OAIC’s major statutory functions not being performed as intended and legislated by the previous Parliament but the statutory office created by that Parliament can no longer be described as existing. In particular, the evidence available points to the deliberate removal of the funds needed by the OAIC to discharge its statutory FOI functions including its central and critical overarching statutory responsibility to independently monitoring, supervising and guiding the FOI system, and advising the government,  Further, the Government has chosen to pass those responsibilities to one of its Departments.
If one accepts that analysis, why does it not follow that the Government’s actions are a repudiation of its duty? Why does it also not follow that the Executive Branch of our Government is repudiating its obligations to respect, carry out and maintain the laws of the Parliament, the Constitution, the Rule of Law and the Separation of Powers?
The same points could be made about the reduced capacity to conduct the information and privacy functions of the office.

Even broad shouldered Timothy Pilgrim cannot carry out the statutory functions in addition to those that fall to him as chief executive of the office. 

You, me and citizens generally are the losers.
 The information commissioner functions are as follows:
(a)  to report to the Minister on any matter that relates to the Commonwealth Government's policy and practice with respect to:
  (i)  the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and
 (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i); (b)  any other function conferred by this Act or another Act (or an instrument under this Act or another Act) on the Information Commissioner other than a freedom of information function or a privacy function.

The freedom of information functions are as follows:
(a)  promoting awareness and understanding of the Freedom of Information Act 1982 and the objects of that Act (including all the matters set out in sections 3 and 3A of that Act);
(b)  assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;
(c)  the functions conferred by section 8F of the Freedom of Information Act 1982 ;
(d)  providing information, advice, assistance and training to any person or agency on matters relevant to the operation of the Freedom of Information Act 1982 ;
(e)  issuing guidelines under section 93A of the Freedom of Information Act 1982
(f)  making reports and recommendations to the Minister about:
   (i)  proposals for legislative change to the Freedom of Information Act 1982 ; or
   (ii)  administrative action necessary or desirable in relation to the operation of that Act;
(g)  monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982 ;
(h)  reviewing decisions under Part VII of the Freedom of Information Act 1982 ;
(i)  undertaking investigations under Part VIIB of the Freedom of Information Act 1982 ;
(j)  collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;
(k)  any other function conferred on the Information Commissioner by the Freedom of Information Act 1982 ;
 (l)  any other function conferred on the Information Commissioner by another Act (or an instrument under another Act) and expressed to be a freedom of information function.
(1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if the functions:
  (a) relate to the privacy of an individual; and
  (b) are not freedom of information functions.
(2)  The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.
Provisions that confer privacy functions
1 Privacy Act 1988 Division 2 of Part IV
2 Crimes Act 1914 Division 5 of Part VIIC
3 Data-matching Program (Assistance and Tax) Act 1990 Sections 12 to 14
4 National Health Act 1953 Section 135AA
5 Telecommunications Act 1997 Section 309

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 and the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014 also confer functions on the Privacy Commissioner.

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