Legal and Constitutional Affairs Legislation Committee
Estimates hearing, 29 May 2013
Office of the Australian Information Commissioner
- Senator Ludwig, Minister for Agriculture, Fisheries and Forestry and Minister assisting the Attorney-General on Queensland Floods Recovery
- Mr David Fredericks, Deputy Secretary, Civil Justice and Legal Services Group
- Prof. John McMillan, Australian Information Commissioner
CHAIR: Professor McMillan, do you have an opening statement?
Prof McMillan : No, I do not, Chair.
CHAIR: Senator Rhiannon will start with questions.
Senator RHIANNON: It is excellent news that we are one of the 58 countries in the Open Government Partnership. Can you tell me which federal agency will be taking responsibility for this initiative?
Prof McMillan : I understand that in answer yesterday to a question from Senator Faulkner, Deputy Secretary Leon in the Department of Prime Minister and Cabinet answered that the Prime Minster had written to the Attorney-General requesting that the Attorney-General's Department do it. Yes, I am seeing nods along the table.
Mr Fredericks : Yes, I can confirm that PM&C yesterday in evidence advised a committee that the PM had agreed that the A-G was the minister and that A-GD was the lead agency.
Senator RHIANNON: Thank you. What resources and staff will be put into this initiative?
Mr Fredericks : That is a matter we will have to consider in time.
Senator RHIANNON: Could you take it on notice? In previous estimates the Office of the Australian Information Commissioner had said that they would require two additional staff. Was there anything allocated in the May budget to cover this?
Mr Fredericks : Obviously this will be a matter ultimately for the Attorney-General's Department in its own internal budget setting, as well as other agencies and other departments. Our internal budgeting process for 2013-14 is not complete, and so it will be considered in that process.
Senator RHIANNON: So is the answer no, that there is not a specific allocation for the office in the May budget?
Mr Fredericks : If you are asking whether there has been a new policy measure for this in the budget just passed, the answer to the question is no.
Senator RHIANNON: I understand that in the United States during the development of their national action plan, the federal government engaged in extensive consultations with external stakeholders; civil society groups and members of the private sector got involved. Do you have plans for similar consultation here?
Mr Fredericks : We will certainly consult, as is our usual way in progressing matters like this. As to the detail, it is too early to say.
Senator RHIANNON: You have said that you will be consulting 'in the usual way'. Can you say what your usual way is, please?
Mr Fredericks : We would consult with stakeholders.
Senator RHIANNON: You have obviously done it in the past, so which stakeholders are you referring to?
Mr Fredericks : I think it is too early for us to be able to advise on particular stakeholders. This is very recent advice from the Prime Minster. We will start that work though.
Senator RHIANNON: When you say, 'in the usual way', it does suggest that you are doing something which has been done before. That is what I am just trying to get to the bottom of.
Mr Fredericks : 'The usual way' is that we as a department will consult with stakeholders in the development of—
Senator RHIANNON: You do not have an example you could share with us—in terms of 'the usual way'? Do you have an example where you have done it before, where you have done something 'the usual way' and you can share it with us—what you did and who you consulted with?
Mr Fredericks : I cannot do it in relation to this particular initiative. But, in the usual course, a department like ours would consult with relevant stakeholders in the development of the work and we will do that here.
Senator RHIANNON: The US National Action Plan for the Open Government Partnership includes a commitment to implementation of the Extractive Industries Transparency Initiative. That is a voluntary framework under which governments publicly disclose their revenues from oil, gas and mining assets and companies make parallel disclosures regarding payments they are making to obtain access to publicly owned resources. Another measure in the US national action plan is an initiative to increase the transparency of foreign assistance. Will these kinds of measures be replicated in our plan?
Mr Fredericks : We are aware of that issue and we will look at it. Ultimately, that will be a matter for government.
Senator RHIANNON: You have said that you are aware of the issue.
Mr Fredericks : My colleagues tell me that we are aware of the initiatives that you just described.
Senator RHIANNON: Can you explain what awareness means? Has consideration been given to actually doing this? Has a brief been prepared on it? Has a recommendation been made? Can you explain what awareness means in that context?
Mr Fredericks : Define 'aware'. We understand that that is an issue. We understand it is an issue we will have to turn our mind to and that the government will need to turn its mind to. As to whether we have done that in any full way yet, the answer is no.
Senator RHIANNON: What will be the process after the Hawke review of FOI laws is tabled? Will there be further consultation on the recommendations of this review in the context of the Open Government Partnership plan development process?
Senator Ludwig: I am sorry, Senator. We are not sure who that was directed at.
Senator RHIANNON: I am not sure myself—whoever picks it up. The question was: what will the process be after the Hawke review of FOI laws is tabled? Will there be further consultation on the recommendations of this review in the context of the Open Government Partnership plan development process?
Senator Ludwig: I suspect that would be for the Attorney-General to decide once he receives it.
Senator RHIANNON: I return to the Extractive Industries Transparency Initiative. What obstacles, if any, are there to Australia signing up to the Extractive Industries Transparency Initiative's legislative obligations?
Mr Fredericks : We as a department are just not in a position to answer that. I could take that on notice.
Senator RHIANNON: When you take it on notice, does that mean you are in a position to answer it but you do not have the information? Before you have been sending me off to the A-G—this one stays with you?
Mr Fredericks : We will need to consider that. I suspect we would seek advice from other departments as well.
Senator RHIANNON: This has been a long one. When do you think Australia will do so, considering it has been 11 years since the commencement of the initiative?
Mr Fredericks : What do you mean by 'do so'?
Senator RHIANNON: The initiative started 11 years ago and it is still being considered. I am just trying to understand what your process is and when the decision might be made—and also the link with the Open Government Partnership plan. Will it form part of Australia's Open Government Partnership plan?
Mr Fredericks : I am terribly sorry. It is late and maybe I am a bit slow. I am not quite sure which particular initiative you are directing our attention to.
Senator RHIANNON: The Extractive Industries Transparency Initiative.
Mr Fredericks : I am not in a position to answer that tonight. I will need to take that on notice.
Senator RHIANNON: Hopefully you can answer this bit of it, because it seems to me to be just a process point—will it be part of Australia's Open Government Partnership plan?
Mr Fredericks : No decision has been made on that. We will need to consider that going forward.
Senator RHIANNON: The Office of the Australian Information Commissioner is receiving less funding, according to the budget papers. It has been allocated $10.604 million for 2013-14 compared to $10.764 million the year before. Why was Professor McMillan's request for resources not met? At a previous estimates, he was very clear about this issue of resources.
Mr Minogue : I do not know that I can be all that helpful other than to say that decisions that government makes about funding its agencies are decisions for the government, and the resourcing of the OAIC was made in the context of the budget.
Senator RHIANNON: Did you make a recommendation? Did you disagree with Mr McMillan's assessment? Was there other advice?
Mr Minogue : I do not know that it is appropriate for me to comment on what advice we may or may not have given government in the course of its deliberations. The outcome was the budget decision the government made.
Senator RHIANNON: Do you think more resources are needed?
Mr Minogue : I could not respond to that.
Senator RHIANNON: Why did the government reject the recommendation of the Productivity Commission that EFIC, our export credit agency, be subject to FOI laws?
Mr Minogue : That is really a matter that was the responsibility of Treasury in responding to the Productivity Commission, so that is a question that should be directed to Treasury.
Senator RHIANNON: Even though it has this FOI component? Have you given any consideration to this at all?
Mr Minogue : I have not personally. I will check with other officers.
Senator RHIANNON: Has somebody?
Mr Minogue : We are aware of that, but it is not a matter that I have personally dealt with.
Senator RHIANNON: My question is: was anybody within your agency asked to give advice on this matter? Was any advice given?
Mr Minogue : We will take that on notice, if that is okay.
Senator RHIANNON: Thank you. I imagine you will take this on notice as well. Has any consideration been given to amending the FOI legislation, especially considering the criticism surrounding the transparency of EFIC's work?
Mr Fredericks : We will take that on notice, at your invitation.
Senator RHIANNON: Thank you. The Hawke report on the operation of the federal FOI was handed to Attorney-General Dreyfus at the end of April. When will the report be tabled in parliament?
CHAIR: Senator Rhiannon, I just want to clarify whether these are questions for the Information Commissioner or are really groups 2 questions.
Prof. McMillan : I have no involvement in any of these processes.
CHAIR: Senator Rhiannon, if your questions are about freedom of information and the information area, they would come under group 2 for the department. We have not got to the department yet; we are still at the agencies of the Information Commissioner.
Senator RHIANNON: I apologise if there has been confusion about that. I do have a question of the Office of the Australian Information Commissioner. Has any additional funding been provided to the office in response to the continuing budget shortfall?
Prof. McMillan : The answer is no. The departmental appropriations for 2013-14 is, as you indicated, roughly $10.6 million. It includes a deduction for the efficiency dividend applied to all agencies.
Senator RHIANNON: Could you specify how this impacts on the work of the OAIC.
Prof. McMillan : We publish quarterly statistics on the web now that indicate the work being received by the office and also our completion rates. We have been very public about this. The statistics on the web indicate that we are encountering significant workflow issues. The work coming into the office—for example, privacy complaints, FOI complaints and Information Commissioner reviews—has been increasing by at least 10 per cent a year and though we have made a determined effort over the last nine months to reduce the backlogs there are still significant workflow backlogs. In particular, it takes roughly seven months to allocate a new Information Commissioner review application to an officer and a lesser period, but still a substantial period, to allocate FOI and privacy complaints. We have also written to government expressing concern that we have additional work to implement the substantial privacy reforms that commence on 12 March next year. We have written, drawing attention to the extra workload that that is imposing.
In summary, we are proceeding as best, as gamely and in as focused a way as we can. We are achieving results, but we are not able to complete all the work in the time frames that we would like.
Senator RHIANNON: Is the backlog becoming bigger and is it taking longer to get the work done?
Prof. McMillan : In terms of total numbers the backlog is reasonably steady at the moment. For example, we have on hand just over 400 Information Commissioner reviews that are unresolved. As a result of a determined effort we made towards the end of last year and allocating staff specifically to complaint handling Information Commissioner reviews we managed to increase the completion rate of individual staff officers quite considerably. If you look at the web you will see there is a substantial outflow of work, but there is still a large backlog that is not reducing in number, even though we are roughly completing the same work that is coming into the office, but we are not able to reduce the existing backlog.
Senator RHIANNON: Did I hear you correctly, that you said it takes on average about seven months to—
Prof. McMillan : To allocate. If we receive an application for Information Commissioner review it can take roughly seven months to allocate that to an officer for work. We do an initial review of the application, for example, to see whether it is in jurisdiction and to do initial acknowledgement letters, but to do substantive work on a review will take at least seven months.
Senator RHIANNON: Once it is allocated how long on average does it then take to complete it?
Prof. McMillan : It varies. It depends very much on the individual case, but the longest unresolved cases in office are now over two years old—that is, we have some applications for Information Commissioner review lodged over two years ago. All these statistics are on the web.
Senator RHIANNON: What would be your ideal practice? What do you think would be good practice?
Prof. McMillan : In the budget papers there are projected completion rates. The objective is to complete 80 per cent of Information Commissioner reviews within 12 months of receipt and, equally, to complete 80 per cent of privacy and FOI complaints within 12 months of receipt. We are not currently meeting that objective, but that is what we will be focused on in the forthcoming year.
Senator RHIANNON: How many additional staff would you need to achieve that objective?
Prof. McMillan : We have not calculated an exact figure. We have obviously had discussions around budget. The Privacy Commissioner wrote to the Attorney-General drawing attention to the workload pressures imposed by the privacy reforms, but we have been well aware of government announcements and government measures, including the efficiency dividend, so we have not done scenario modelling. When the proposals for FOI reform and the creation of the office were going through the parliament it was projected that the office would have 100 staff under the departmental appropriation. That is a figure we have been comfortable to accept as a projected number. The numbers go up and down, but they will probably stabilise. They are currently down, under departmental appropriation, to around 64; it will probably stabilise in the next financial year at around 70.
CHAIR: We will suspend for a break. When we come back we will deal with group 3 emergency management.