SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
TUESDAY, 12 FEBRUARY 2013
Office of the Australian Information Commissioner
Prof. John McMillan, Australian Information Commissioner
CHAIR: Professor McMillan and your colleagues, good evening and welcome. Senator Rhiannon, we will go
to you first-about 15 minutes or so-and then we will go to Senator Faulkner.
Senator RHIANNON: Thank you very much. Last week, many of us certainly welcomed the decision of the
Office of the Australian Information Commissioner to release information on Australia's membership of the Open
Government Partnership. It was good to see that was out there. I do note that Australia was invited by the US
State Department to join in August 2011, and in May 2012 the then Attorney-General, Ms Roxon, expressed her
support for that. Why has it taken so long to even start the process?
Prof. McMillan: Senator, the short answer is that there have been competing priorities, certainly in my office,
and I expect there would be a similar consideration in, say, the Attorney-General's Department or in other
departments. If I can just explain my part. I received a letter from the Attorney-General's Department in midAugust 2012 asking me to advise on what steps my office could take to assist the Australian government to join
the Open Government Partnership. It took me five months to reply with the letter that you referred to that was
recently released under the FOI Act and placed on our and another website. The only explanation, I think, is that
there were quite a number of other competing priorities in the office at the time.
Senator RHIANNON: Five months is a long time. Can you share with us what your problem was? Was it a
lack of resources? Did more work come across your desk than you expected? It is an extraordinary length of time.
Prof. McMillan: That was a busy time. Firstly, we were completing the annual report. Secondly, the office
also organised and convened a seminar to celebrate the 30th anniversary of the commencement of the Freedom of
Information Act in Australia. We were also completing a report that will be released within a week or so on a
survey that we undertook earlier in 2012 of over 190 government agencies on their publication practices with
public sector information. As the senator may know, we were also dealing with a large influx of applications for Page 84 Senate Tuesday, 12 February 2013
LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
Information Commissioner reviews of FOI decisions, and there were the Privacy Act reforms. It is probably fair
to say that I was personally involved in each of those activities, and I decided also that I was best placed to take
the lead in preparing the response to government on the Open Government Partnership. I do not underrate the
importance of the Open Government Partnership, but the other activities all had high priority too.
Senator RHIANNON: Okay. So what kinds of activities could the government propose as part of the national
action plan; and will this then be subject to community consultation?
Prof. McMillan: There are about 55 countries, I think, that have joined the Open Government Partnership,
and their national action plans are quite varied. But three that have caught my eye and that I think provide a good
model for Australia are the national action plans prepared by the United Kingdom, by Canada and by the United
States, which of course all have comparable systems of government-a commitment to democracy and open
government. Now, the action plans for those countries have a very strong focus on the open-government
dimension of the Open Government Partnership, with a particular focus on development of a proactive open data
policy-that is, putting in place a framework to encourage proactive publication of information, raw data sets and
the like, by government agencies.
The Open Government Partnership rules also allow a country's action plan to extend far more broadly, into
areas like steps to combat corruption; to improve government services, particularly to disadvantaged
communities; and to elevate integrity and ethics in government. Now, those are all very important objectives, but
my view-this is my personal view-is that, if Australia were to join, a national action plan would be better
focused on those core open-government objectives.
Senator RHIANNON: In the last lot of estimates last year, your office said that they felt they had more work
to do in developing a national action plan. Could you just give us an idea of when it will be released, and how far
advanced it is, because we have had one delay. Are we over those delays?
Prof. McMillan: The idea that Australia should develop some kind of policy framework to embody its opengovernment commitments is a proposal that I had put forward when the office commenced, back in November
2010. At that stage, I issued an issues paper on day one, really, of the office, called Towards a national
information policy, and there was a proposal of that kind. I said there was a lot happening-there are a large
number of agencies, a large number of activities, guidelines and codes-and it would be useful to be able to draw
it all together.
As time has gone on and this international Open Government Partnership has developed, with a requirement
that member countries develop a national action plan, the kinds of proposals that my office has put forward to
have tended to coalesce a little. So the way in which I have been framing it more recently-for example, in a
submission to the Hawke review, in this letter to government-is that, if Australia does choose to join the Open
Government Partnership, then the development of a national action plan would provide an excellent focus for
drawing together all of those threads of the considerable open-government work that has been undertaken over the
last couple of years.
Senator RHIANNON: Sorry; I may have misunderstood the whole process. You just said 'if Australia decides
to join the Open Government Partnership'.
Prof. McMillan: Yes. That is a decision for the executive government-
Senator RHIANNON: Right. So that decision has not been made?
Prof. McMillan: The Attorney-General, in a letter to me in June last year, signalled that she had proposed to
other departments that Australia join and was seeking a response from those departments. I am not aware of
whether there has been a formal response to the Attorney-General or the department from other departments. My
only involvement has been to explain, on request, what role my office could play, and I took the opportunity to
address the issue more expansively in that letter earlier this year.
Senator RHIANNON: So we have not formally joined yet?
Prof. McMillan: No, we have not. There has been no decision by the Australian government on whether to
Senator RHIANNON: It is often reported that OAIC resourcing is fairly tight.
Prof. McMillan: Yes.
Senator RHIANNON: Do you anticipate receiving additional staff and resources to help drive whatever level
of involvement the government decides to bring forward for the OGP?
Prof. McMillan: The proposal I have put to government was that my office would be willing to take a
leadership role and provide what support it could to the process of public consultation, preparation of an action Tuesday, 12 February 2013 Senate Page 85
LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
plan, coordination of discussion between other agencies, but that on current resources we simply could not do
that. I explained in the letter that we indeed had had to shed staff by different processes, to downsize some other
activities within the office and that I could not see any way forward for us to take on extra work without some
supplementary funding or assistance.
Senator RHIANNON: Have you had a response to that yet?
Prof. McMillan: No, I have not had a response. I might say that the letter we are talking about was gone
within the month and there has been a change of Attorney-General in the period. That question is obviously better
addressed to the department.
Senator RHIANNON: If I understood you correctly you said that at the moment you are really not in a
position to take the OGP forward-something would have to change.
Prof. McMillan: There is some activity that we could certainly undertake. Ultimately it is a question for
government, firstly, on whether Australia joins and, secondly, which agency has responsibility. There are a
number of other agencies that have a significant role in the area of information policy and also international
relations. It is foreseeable that government, if it chose to join, could decide that the lead role should be taken by
another agency and that mine should simply be one of those that is consulted.
Senator RHIANNON: I would like to move on to the Hawke review.
Prof. McMillan: Yes.
Senator FAULKNER: I want to ask some questions on that too.
Senator RHIANNON: Okay. Should I keep going?
CHAIR: I do not mind. You need to share the time.
Senator RHIANNON: Just continuing on the OGP, in some of the reports on this I noted it has been
mentioned that the OAIC and the AG have mentioned the Information Advisory Committee has also been a body
that could do this work. But what I understand is that that body is mainly made up from civil society. Are you
seriously considering the Information Advisory Committee? Is it just a body of civil society? Is it up to doing this
work? How serious is that consideration?
Prof. McMillan: I can describe the committee and its work-Ms Kelly may want to say whether its role was
considered. The committee is established by statute. It has at the moment about 13 members. It is a good
representation from senior officers from within government-Ms Kelly is a member-and from people outside
government: people with experience in archives, librarianship, legal practice, public interest advocacy, journalism
and the like. The committee met three times last year; it has taken an active interest. But I think the only role that
it could feasibly play is what the OGP calls a multi-stakeholder forum that can be consulted by government
concerning its action plan and its progress in meeting it. I do not see that IAC, in terms of the way it has met at
this moment, as taking a leading executive role in administering a program of membership.
Senator RHIANNON: Thank you. Ms Kelly, are they being seriously considered for the OGP work?
Ms Kelly: Firstly, in my capacity as an independent member of the Information Advisory Committee, I can
only echo Professor McMillan's words. The arms and legs of that committee are the Office of the Australian
Information Commissioner, and so it does not have capacity, other than to provide its views, to do any
groundwork that would be associated with the consultation process and developing the country action plan. But it
would be a very useful source of views, with many people on the committee having a great deal of expertise in
open government matters.
So, from the department's perspective, whilst we would welcome those views, we would not see that as a vehicle
to actually implement the Open Government Partnership.
Senator RHIANNON: Thank you.
Senator Ludwig: Chair, before we got to the dinner break, I just noticed from the program that we are
running a little bit late and there are three outcomes in the Attorney-General's portfolio-
CHAIR: If we just let Ms Kelly and Senator Rhiannon finish-
Senator Ludwig: I was just a bit concerned-
CHAIR: I know we have a totally new program after dinner, so we will just finish with the Information
Commissioner and all will be revealed.
Senator RHIANNON: I wanted to ask about an issue that was mentioned before: the letter dated 17 August
from the AG's Department. It set out a timetable that actually showed Australia joining, and developing a national
action plan by December 2012. So we have missed that deadline. Have you a revised deadline?
Prof. McMillan: The timetable that was outlined in the letter from the Attorney-General's Department to my
office was based on the projected meeting timetable of the OGP. As my letter points out, there was a meeting of
the steering committee of the OGP in December that set a new timetable for meetings in 2013. So that is the
timetable I have outlined; that is the only realistic timetable now. And that would involve Australia signifying its
intent to join by April, or June at the latest, and then being prepared to table a country action plan and formally
sign the Declaration of Open Government in a meeting late in October.
Senator RHIANNON: When do you anticipate the tabling of the plan in that timetable?
Prof. McMillan: The OGP criteria require the plan to be formally approved by its steering committee prior to
the annual meeting. The steering committee is held a couple of days before. It also requires a process of
consultation with the secretariat of the OGP. So if Australia were joining, it would launch the development of the
country action plan in April, with a view really to finalising it probably by September, certainly by October. I
think by then it would be a fairly public document in a final draft form that really just required a formal approval
by the OGP steering committee.
Senator RHIANNON: So it could coincide with the election.
Prof. McMillan: Yes, that is one complication of the timetable!
Senator RHIANNON: Okay, thank you very much. On the Hawke review, I understand that not a single
media release was issued by the AG's and there were no speeches, events or issues paper on the Hawke review. Is
that the case?
Mr Fredericks: It is the case that there has been no issues paper released for that review. Of course-Tuesday, 12 February 2013 Senate Page 89
LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
Senator RHIANNON: I said 'media releases, speeches-
Mr Fredericks: I cannot answer in relation to media releases. I can say, however, that the terms of reference
are posted on the AGD website. I should also just note, Senator, that as a consequence of the review being
undertaken and the reference to it on the website, more than 70 submissions have been received in response.
Senator RHIANNON: It does seem quite an unfortunate state of affairs, after what we have just been
exploring on the international stage, how little public exposure this has been given.
Mr Fredericks: Senator, I have just been informed that there was in fact a media release by the AttorneyGeneral at the time. I do not have the date of that media release.
Senator RHIANNON: So, apart from that one media release-and if you need to take this on notice, I
understand-could you outline how this review has been promoted?
Mr Fredericks: Yes, I will take that on notice.
Senator RHIANNON: Thank you. Will the Attorney-General consider widely advertising a further call for
public submissions on any draft bill amending the FOI legislation that could arise as a result of the review?
Mr Fredericks: In fairness, that would ultimately be a decision for the Attorney at the time. I would need to
take that on notice.
Senator RHIANNON: Would the department consider making a recommendation along those lines, to
maximise public awareness and involvement?
Senator Ludwig: They will take it on notice and check with the Attorney-General.
Senator RHIANNON: Can you outline a timeline on what month we could see draft legislation?
Senator RHIANNON: Thank you, Chair.