FOI limbo continues: Pilgrim appointed temporary OAIC head

By David Donaldson

Thursday July 16, 2015

Timothy Pllgrim

Outgoing privacy commissioner Timothy Pilgrim will take up the role of acting information commissioner on a three month contract when incumbent John McMillan departs next week, staving off the prospect of the Office of the Australian Information Commissioner being left without statutory officers for the moment.

The announcement was made on the OAIC website yesterday, without any comment from the government.

Pilgrim will assume the role of acting information commissioner when McMillan, the current head of the OAIC, goes on leave on July 20 ahead of formally resigning on July 31. It was announced in June that McMillan would take over as New South Wales ombudsman from Bruce Barbour. Pilgrim’s five year term as privacy commissioner expires on 19 July.

But the new acting commissioner has been appointed for only three months, reflecting the lack of certainty around the continued existence of an agency the government wants to do away with but seemingly lacks Senate support to formally abolish.

That will leave two statutory officer positions unfilled at the agency, after freedom of information commissioner James Popple left in December 2014 to join the Administrative Appeals Tribunal. The OAIC cannot fulfill functions such as reviewing freedom of information decisions without having at least one statutory officer or acting officer in place.

With no formal barrier to Pilgrim doing the work of all three statutory roles in an acting capacity, the government may decide not to fill the remaining positions.

A statement from the Attorney-General’s Department said:

“The timing and processes for statutory appointments is a matter for the government. However, the government will ensure that arrangements are in place for the continued exercise of all the information commissioner and privacy commissioner functions.”

Repeated requests to the Prime Minister’s Office for comment last week went unanswered.

The appointment of Pilgrim will stave off the possibility of a collapse of the freedom of information review process, though the loss of McMillan may weaken the OAIC’s ability to work through the back log of applications. It is also unlikely to dampen concerns about whether the government is meeting its constitutional obligation to properly resource the agency to fulfill its statutory functions, an issue that has been the subject of two opinion pieces by a group of former justices of the Victorian Supreme Court.

The federal government announced its intention to abolish the OAIC last year, and began winding down its funding accordingly, but an apparent lack of support in the Senate for abolition has meant the partially-defunded body has had to continue its work while waiting to see whether it will end up being abolished.

After the problems arising from the premature de-funding, the budget for next financial year will provide roughly $1.7 million for the FOI function and $6.8 million for the privacy function. By contrast, during the 2012-13 financial year, the OAIC spent $5 million on fulfilling its FOI functions, and just over $15 million in total.

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