International Commission of Jurists remind that Parliament not Executive fiat decides the fate of OAIC

Bernard Keane in Crikey today on the FOI rollback campaign that includes the unsuccessful push to legislate to abolish the Office of Australian Information Commissioner, and in the meantime crimp its capacity to undertake its full range of functions, coinciding with public service leaders now speaking of how they thwart the law of the land.

On the same subject former NSW Attorney General John Dowd in his capacity as president of the Australian section of the International Commission of Jurists (ICJ) writes to Attorney General Brandis, as reported in The Guardian Australia, reminding that the rule of law involves the ongoing effective discharge of the functions of a statutory body such as the OAIC until such time as parliament no longer requires:

... the government is seeking to achieve executively what it cannot achieve legislatively,” Dowd said in the letter to Brandis. “This is of profound concern to the ICJ which has the responsibility of defending the rule of law. “The rule of law is not a nebulous concept but does have some very specific components, one of which is the doctrine of the separation of powers … It is disappointing that we have to draw this simple principle to your attention.”

When a government was seen to be doing executively what it was unable to do by legislation, Dowd wrote, concerns about “insults to rule of law and the doctrine of separation of powers are understandably aroused”.

“When this executive function has the effective result of emasculating a statutory body, which can only be abolished by statute, there can be no doubt that the wall of protection separating the executive from the legislature has been breached,” he said.
Dowd told Brandis a government should not prevent the ongoing effective discharge of the functions of a statutory body that the law required to continue, otherwise “the consequences in a civilised society such as ours would be too disastrous to contemplate”. He said if that were the case, a government could emasculate any statutory body that caused it displeasure.

(Addendum: John Dowd on ABC AM Tuesday morning.)

The bill to abolish the OAIC has been before the Senate since October 2014 and not once brought on for a vote. Meanwhile because of failure to fund and fill positions one commissioner carries the functions of the three positions Parliament established.