Privacy Commissioner and OAIC expected to do more on the smell of the same oily rag?

The Office of Australian Information Commissioner was asked again to do more with no additional resources, something it should be used to by now after six years of practice. That's since since the Abbott government had an unsuccessful crack at abolishing the Commission and successive governments in the years since kept the lid closed or just slightly ajar (with some additional privacy resources in last year's budget to go with earlier expansions of its role) on the moneybox. 

But wait-despite no one on the government side deviating from the script during debate the Attorney General told Shadow Attorney General Dreyfus separately his department is checking with the OAIC to ensure they have adequate resources.

(Perhaps too much to hope that the check might also dig into the issue of stretched OAIC Freedom of Information resources that include one commissioner instead of three as legislated, and to deal with something like a 90% increase in FOI review applications over the last four years that now form a long,long queue, and non existent resources for Information Policy functions.)

The OAIC issue arose as the Privacy Amendment (Public Health Contact Information) Bill 2020 sailed through both houses when Parliament sat this week.

The bill, as passed by the House of Representatives on Wednesday, passed the Senate this morning without amendment. 

Labor in the Senate did not support amendments put by the Greens and Centre Alliance citing the urgency of getting the legislation in place as quickly as possible.

Speakers in both houses drew attention to the extra responsibilities the bill places on the Privacy Commissioner and her office the OAIC, particularly this exchange in a committee hearing last week 

Senator Keneally: in light of the new and important oversight responsibilities that the draft bill would confer on the Privacy Commissioner, will the government be providing the Privacy Commissioner with any additional resources?

Ms Chidgey (Attorney General’s Department): There's no intention to provide additional resources. The Privacy Commissioner is able to undertake this work within their existing resources.

Shadow Attorney General Mark Dreyfus unsuccessfully moved a motion in the House that included a call call on the government to "provide additional funding to the (OAIC) and appoint a standalone privacy commissioner “to ensure that the commissioner is able to properly perform the important oversight functions provided for in this bill.” 

He spoke to this part of the motion thus:

"Another issue that I raised with the Attorney-General during discussion about this bill relates to the funding of the Office of the Australian Information Commissioner. In short, I do not think that the evidence of the Attorney-General's Department at last Wednesday's COVID-19 Senate select committee hearing that the commissioner requires no additional resources to fulfil her new oversight responsibilities is credible.In fact, it is incredible. You do not have to take my word for it. Just last October, the Information Commissioner told Senate estimates that her office is already underresourced.The Attorney-General has advised me that his department is engaging with the commissioner to ensure that she has the necessary resources to perform the important oversight functions provided for in this bill, the Privacy Amendment (Public Health Contact Information) Bill 2020. While I welcome that engagement and look forward to receiving an update over coming days or weeks, there is no question in my mind that additional funding is urgently required. The only question is how much.
It is also important to remember that for years the government has refused to appoint a standalone information commissioner, a standalone freedom of information commissioner or a standalone privacy commissioner. Instead, one person currently occupies all three of these important and demanding roles. As I've said repeatedly, this is unacceptable. In light of the new responsibilities that this bill would confer on the Office of the Australian Information Commissioner, now more than ever the government needs to appoint a standalone, dedicated privacy commissioner. The appointment of a full-time and properly resourced privacy commissioner rather than a commissioner forced to split her time between three different and demanding roles would make a further valuable contribution to building public confidence in the COVIDSafe app. It should not take a public health crisis for the government to show that it takes seriously the privacy of Australians.

Additional responsibilities for the Privacy Commissioner arise because as explained in the second reading speech:

• The bill ensures COVIDSafe app data must  be treated as 'personal information' under the Privacy Act, by virtue of section 94Q. This automatically applies a range of existing Privacy Act protections to COVIDSafe app data, including privacy policy, notification, and security obligations. 

• The commissioner will be able to undertake a formal assessment of whether an entity subject to the Privacy Act, or a state or territory health authority handling COVIDSafe app data, is complying with the requirements in this bill. And to deal with complaints.

• The commissioner will also have discretion to refer matters that may constitute a breach of a state or territory privacy law to the responsible state or territory privacy regulator. 

•  The commissioner will provide regular public reports on the performance and exercise of her new powers and functions under part VIIIA.

• The bill applies the existing Notifiable Data Breaches Scheme for which the commissioner is responsible to COVIDSafe app data under section 94S. The bill requires the administrator of the National COVIDSafe Data Store, or a state or territory health authority handling COVIDSafe app data, to notify the commissioner of any data breach involving COVIDSafe app data. The commissioner will then have the power to require the breach to be notified to affected individuals.The notification requirement would be automatic in the event of a data breach, which is much stronger than the protection in the Privacy Act's existing data breach notification requirements. 

Somewhere in there in there is also a COVIDSafe Privacy Advisory Committee, including the various Privacy Commissioners, to provide collective advice to the National Cabinet and the public regarding the operation of COVIDSafe.

The Commissioner welcomed changes to the act-no mention of the resources issue

Should be a snack really.

Amid the hubbub, an FOI reform bill introduced from the crossbench goes to committee

Its been quite a week so you're excused if you missed the introduction into the Senate of the Freedom of Information Legislation (Improving Access and Transparency) Bill 2018 by Senator Rex Patrick  (Centre Alliance).

The senator is among the few who take a serious interest in transparency and accountability, evident in his time as a staffer to former senator Nick Xenophon, and in his own stead since he replaced Xenophon in November last year.

Introduction of the bill took one minute of the senate's time but it won't automatically sink without trace. It has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 30 November 2018. Thus the opportunity to draw attention and advocate for action from those in government who since the election in 2013 have settled for words if pressed on the subject.

While well short of the changes that would be expected if Australia embarked on developing information access laws fit for the 21st century, an OGP commitment on which the government has remained silent about what is under consideration since August 2017, Senator Patrick's bill is a welcome attempt to identify high order priorities for improvement.

Specific changes proposed include:

• Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissione
• Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.
• Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.
• Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can't switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, this allows an agency to remake decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.  
• Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner (as happens now). 
• Preventing agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information. 
• Promoting the use of freedom of information requests by Senators and Members of the House of Representatives by entitling them to access to documents without charge unless the work generated by an access application involves charges totalling more than $1000. 
• Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983.

 The reasons for referral/principal issues for consideration by the committee are:

"Impact and benefits

Affect on OAIC resources/processes

Possible submissions or evidence from:

OAIC/Attorney/Law Council/Media Organisations

Accountability Roundtable."

Specific mention of The Accountability Roundtable is an acknowledgement of the tireless work of the former Chair Tim Smith QC in drawing attention to the Abbott and Turnbull governments' move away from the legislated model of three commissioners to exercise the functions of the OAIC and to downscale resources available for FOI and information policy.

Senator Patrick's second reading speech (incorporated in Hansard but not read):

Budget time in Canberra the chance to get back on track towards 'good government.'

I'm away from Australia until 19 April but I'm hoping those with heads down in Canberra nutting out repairs to the policy framework and developing the 2015-16 budget decide to join a few dots on the path towards good government:
1. Withdraw the ill fated Freedom of Information Amendment (New Arrangements) Bill that has been sitting on the Senate bill list since October. There is no majority to support the bill.
2. Restore funding for the Office of Australian Information Commissioner to pre 2014-15 levels as a temporary measure.
3. Appoint a panel of government and non government experts to examine the efficiency and effectiveness of the OAIC, particularly its FOI and related functions and report within three months on scope for improvement including other models and funding levels for oversight and review that could deliver better results.
4. Proceed to membership of the Open Government Partnership, in line with Minister Turnbull's recent reaffirmation of the government's commitment to greater transparency and accountability and to Australia taking a global approach in moving ahead on digitisation and open data.
5. Enter into a meaningful partnership with civil society to develop the required OGP National Action Plan to be finalised within six months.

Policy 101: Blind siding rarely the way to bring the troops with you

Independent Senator Nick Xenophon in Crikey today:

The budget in May was a stinker. As one senator reportedly told The Australian Financial Review this week, the budget was “in more shit than a Werribee duck”, referencing the coastal town south of Melbourne that hosts a sewage treatment plant. I have big policy problems with the budget, such as the Medicare co-payment and the cuts to auto sector workers, pensioners, social security, higher education, health, schools, foreign aid and renewable energy funding. But I’ve been gobsmacked at the blind-siding of the whole country by this government. When did the government tell the states they were stripping a lazy $80 billion out of their future health and education budgets? When did the government tell the auto sector it would drain a further $600 million out of industry assistance (that makes $1.1 billion cut in total) that could have gone to restructuring ahead of the exit of the car makers? When did the government tell the universities it was going to cut 20% from federal funding for undergraduate courses and deregulate the sector? When did the government tell self-funded retirees it was taking away their modest seniors’ supplement?

Never, that’s when. Until budget night, that was. The subtext is all about mistrust of the electorate. I’m tipping Budget 2.0, sometime soon. And the government won’t get that through unless it restores trust with the voters.

You could add plenty to the Senator's list of Budget blind siders that add to the trust deficit including the announcement of the plan to restructure the access to information system by abolishing the Office of Australian Information Commissioner, all the time pronouncing a commitment to transparency and accountability and claiming the resulting changes will "improve administrative efficiencies and reduce the burden on FOI applicants."