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Monday, October 03, 2016

Australian Information Commissioner appointment: some certainty, still short of firepower and support

The announcement last week by Attorney General George Brandis of the appointment of Timothy Pilgrim as Australian Information Commissioner and the renewal of his appointment as Privacy Commissioner brings a degree of certainty to the operations of the Office of Australian Information Commissioner after the wrecking ball launched in May 2014 when the Attorney General announced the office was to be abolished.

While the return to certainty is welcome, and Timothy Pilgrim is a fine public servant the appointment is far from sufficient to re-establish the office on the fully operational, fully funded, firm footing required after the battering of the last two and a half years.

The announcement makes no mention of the Freedom of Information Commissioner post.

The OAIC website says "Mr Pilgrim will carry out functions and exercise relevant Commissioner powers under the Privacy Act 1988, Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010." 

Who calls the shots?
The Australian Information Commissioner Act 2010 establishes an office with three commissioners and prescribes the functions and authorities of each.

if the government intends to proceed with one commissioner, In the court of public opinion at least, this would seem 'smart lawyering' and contrary to the framework established by parliament -three positions, three different functions, three people.

It may raise a legal issue about the exercise of executive power and the public trust responsibilities that go with it including to act in accordance with Section 61 of the Constitution which requires such power be used to execute and maintain the constitution and the laws of the Commonwealth. 

In the case of the Australian Information Commissioner Act, the government's responsibility to execute and maintain the act would seem to require the appointment of three commissioners not one.
Collateral damage
The wrecking ball of 2014 hovered over the OAIC until May 2016.

By this time the Canberra office had closed, staff had left including the FOI Commissioner and the Australian Information Commissioner, some functions were farmed out to the Ombudsman and Attorney General's Department (since returned), and Privacy Commissioner Pilgrim was given five short term appointment acting in the Information Commissioner role.

Funding for the FOI functions of the office has never reflected initial estimates of what was required and remains inadequate. Privacy responsibilities of the office have been extended. No funding has been allocated for information policy functions.

The OAIC has conducted two own motion investigations of agency FOI practices in six years, the most recent two years ago. 

The 2016-17 Corporate Plan doesn't suggest a major change in what has been a low key FOI watchdog role. There are references in the plan that suggest the office is now rebuilding FOI capacity lost in recent times.

Throughout all these tough times the minister hasn't managed a positive word in public on the importance of what the OAIC describes as its "unique role in promoting and protecting two of the fundamental pillars of open democratic government in the information age."

On the contrary Senator Brandis as late as May this year continued to assert that abolishing the office was a good idea. He told Senate Estimates (Q&A pp 42-44) the decision in 2014 to abolish the office was at the time seen as a "good economy measure-and we haven't changed our mind."

The Attorney General also maintained public silence as one public service leader disparaged freedom of information ('very pernicious') and expressed ignorance of its transparency and accountability purpose, and others went public in calling for tighter guarantees of confidentiality for advice. 

Meantime Senator Brandis was arguing an interpretation of the law before the Administrative Appeals Tribunal and the Federal Court of Australia that both rejected in seeking to avoid processing a request for some entries in his appointments diary now some years old.

New positive words and deeds required
Australia's information access law, and policies and practices in implementation of the law badly need comprehensive review, reform and updating. That should include another look at the OAIC and what can be learned from experience, not just its own, but from around the country and internationally where this and other models are in place.

However before we get there, we need words and deeds that confirm this government supports and encourages the open transparent government cause

As Senator Brandis in Opposition in 2009 said 
"..The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure...."
According to the Prime Minister takeaways from the close election result in July are that the public is disillusioned with government, politicians and the major parties, and restoring trust is a priority for his re-elected government.

Different attitudes and actions - that positively promote transparency and accountability - might help.

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