The government has left unanswered questions about what will happen at the Office of the Australian Information Commissioner after its two remaining statutory officers depart this month, fueling speculation the government is abolishing the body by stealth.
And if the government decides to draw out the replacement process it could cause headaches for public servants — they will need to either find someone to place in an acting role or renew the appointment of Privacy Commissioner Timothy Pilgrim to avoid a collapse in the freedom of information review process, says freedom of information and privacy law specialist Peter Timmins.
Australian Information Commissioner John McMillan, who it was announced last month would take over as New South Wales ombudsman from Bruce Barbour, will formally resign as head of the agency on 31 July, while the privacy commissioner’s five year term expires on 19 July. The OAIC’s third statutory officer, Freedom of Information Commissioner James Popple, left in December 2014 to join the Administrative Appeals Tribunal and has not yet been replaced.
Neither the Prime Minister’s Office nor the Attorney-General’s Department responded to requests about who would replace the three, or if a replacement process was underway.
This leaves the OAIC — which the government has signaled a desire to abolish, despite its inability so far to pass legislation to this effect in the Senate — with the prospect of being left with no statutory officers.
Even if the government decides it must find replacements, it will likely struggle to find someone willing to take the helm at a potentially doomed agency.
“With the bill before the parliament, no-one capable of doing the job would accept a permanent appointment as information or FOI commissioner unless they were prepared to do the government’s bidding on that basis, which would be very problematic,” Peter Timmins told The Mandarin.
But to avoid a complete blockage in the FOI refusals review process, a replacement, even if temporary, will need to be found.
As it stands, reduced funding and staff has meant the OAIC’s ability to provide free reviews of refused FOI applications has been limited, with the number of cases being forwarded to the Administrative Appeals Tribunal by the OAIC having increased by 47%. Applicants must also pay an $816 fee for an AAT review.
But, says Timmins, reviews can only be passed on the the AAT by the OAIC. And, as the OAIC has itself pointed out to government in the past, under the legislation there is no power to delegate the commissioner’s functions to staff other than the three statutory appointees, reducing the agency’s flexibility in dealing with its workload.
This would mean any delay in appointing a permanent or acting replacement would see a blockage in the pipeline of FOI refusal reviews, with the OAIC being unable to even forward applications on to the AAT.
There are also constitutionality concerns. Former justices of the Supreme Court of Victoria Tim Smith, Stephen Charles and David Harper have together raised questions about the constitutionality of the government’s conduct in cutting funding to the OAIC in the absence of parliamentary agreement to abolish it, arguing that starving the agency of resources amounts to undermining the functioning of the law.
Responding to these concerns at Senate Estimates, Attorney General’s Department senior executive Matt Minogue argued the government was fulfilling its obligations to keep the OAIC running after shifting some of its functions to other agencies and partially restoring funding.
In a follow-up letter, the former justices rejected this argument, stating that “the reality is otherwise”:
“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.”
There currently appears to be little chance the government will be able to push legislation to abolish the agency through the Senate. The Greens and Labor are likely to remain opposed, so the support of six of eight cross-benchers would be needed. Nick Xenophon, David Leyonhjelm, John Madigan and Bob Day are understood to oppose abolition, and, says Timmins, it appears likely Jacqui Lambie and Glenn Lazarus do as well. After having been introduced to the upper and lower houses in October, the bill continues to wait for the government to move it through the parliament.
Pilgrim’s role, as Privacy Commissioner, would be moved to the Australian Human Rights Commission under the government’s proposal.
Given these constraints, Timmins says the government will need to either re-appoint Pilgrim as privacy commissioner when his term runs out on Sunday, allowing him to carry out the functions of all three statutory officers, or appoint an acting commissioner.