Estimates: Australian Information Commissioner

Finance and Public Administration Legislation Committee

Estimates hearings, 17 October 2011

Office of the Australian Information Privacy Commissioner

• Senator Chris Evans, Minister for Tertiary Education, Skills, Jobs and Workplace Relations
• Prof John McMillan, Australian Information Commissioner

Full transcript available here

CHAIR: I welcome Professor John McMillan, Australian Information Commissioner, and officers. Professor McMillan, do you wish to make an opening statement?

Prof. McMillan: No, thank you.

Senator RHIANNON: Professor, you have not got to your first year in the job yet; I think your anniversary is coming up in November?

Prof. McMillan: Yes, that is correct.

Senator RHIANNON: I would be interested to hear how you have seen the first year; any positives and negatives, any disappointments. Anecdotally, I hear that more significant disclosures have occurred in this first year than previously. I would be interested to hear how you would sum it up, considering we do not have a report yet.

Senator Chris Evans: That sounds a bit like a Dorothy Dixer.

Senator RHIANNON: I am just getting ready.

Prof. McMillan: You can judge by my answer. There are really three aspects of the reform with which I have been engaged. One is the merging of privacy, freedom of information and information policy in a single scheme. The second has been the substantial reform of the Freedom of Information Act. The third has been the introduction of independent advice to government on information policy as a distinct and independent function. My office has been busily engaged in all three areas. We are very pleased at the integration of those three areas. We think Australia has an excellent model for dealing comprehensively with information management policy.

As to the reforms on freedom of information, there is no doubt that the reforms of the Freedom of Information Act have had a substantial impact on government. It is fairly obvious, I think, from stories in the press, that there is quite an increase in applications for policy related material. Indeed, our statistics indicate an increase of 48.6 per cent in that area.

Another aspect of the open government reforms was to add an additional and distinct shift towards a proactive publication stance on behalf of government, and my impression is that that is going very well. You can visit, for example, most agency websites and see icons for the information publication scheme disclosure log there.

That is a brief summary of how it is going. Our annual report on FOI and a separate one on the OAIC will be out in the next couple of weeks.

Senator RHIANNON: Thanks for that run-down. I notice how positive you were, so I will be interested in your comments on that report that came out last week in which the Commonwealth Freedom of Information Act has been rated in an international survey as 39th out of 89, putting Australia in an embarrassing position. To what do you attribute that, and is it changing?

Prof. McMillan: I was not involved at all in that review. I was not consulted. My comments were not sought by the group that was doing it. It was an independent non-government civil society group, as I understand it. There is not a lot of information available, from my initial search on the website, about how the evaluation was done. It looks only at the design of the law and not at the implementation of the law, so it does not look at transparency practice in government.

As to the design of the law, there are aspects of it in which Australia scored very low which I would not have thought were weaknesses in our law, for example, the fact that the FOI Act does not apply to the parliament or the judiciary. We have a clear, constitutional separation of functions in Australia which I think makes this inappropriate. Some other nations do not have that clear separation and so they do go down that path. We have a stable, constitutional democracy in which we can essentially rely on the public service to uphold the law, so we do not have penalties in our FOI Act. Some other countries, against a backdrop of corruption and maladministration, do have penalties in the FOI Act, and they have scored higher on this analysis.

My comment, and I have commented at international fora, is that I think these analyses are valuable and useful—we get some advantage from them—but there is some bias by reason of the fact that it is essentially designed by civil society organisations working primarily with developing countries in designing a new integrity framework. I do not think Australia's ranking really reflects where we are—

Senator RHIANNON: So you do not think that ranking was fair?

Prof. McMillan: It only evaluates the law, and it is the opinion of those who designed it, but if one was after an evaluation of transparency practice in government and a commitment to open government then I do not think this is at all indicative. There are issues in Australia and there are challenges, but we have a good system and a strong commitment.

Senator RHIANNON: Which leads onto my next question about the design of the law. You will be aware that there was a Senate inquiry into the draft FOI bill that left it to the commissioner to make decisions about what was in and what was out. It sounds like you have come to the conclusion that the balance is right. Is it correct that you think that parliament, ASIO and parliamentarians should not be covered by FOI?

Prof. McMillan: No, I have not come to a conclusion on any of those issues. Indeed, one of the features of the reform program is that my office would, starting in the first year, undertake a review of FOI charges. That review has just commenced. I have an open mind and will invite submissions from within government, from the parliament, from journalists and from the community about the role of charges in FOI.

Another feature, which is stated in the act, is that the government, in consultation with me, is to undertake a review of the FOI Act, commencing within the first two years. It is certain that one of the issues in that review will be whether the act should apply to security intelligence agencies. It does, for example, in the United States with the CIA and in the United Kingdom with MI5, but it does not apply in Australia. Clearly it is an important policy issue. I expect it will be one of the issues that we will examine and on which we will get many submissions, and I have an open mind.

Senator RHIANNON: We have just seen the launch, by President Obama, of the Open Government Partnership in New York, at which Australia was a notable absentee. I was surprised about this, considering the Open Government Partnership is quite an impressive multilateral initiative that aims to secure some commitments from governments to promote transparency and all of the fine aspects of FOI, including all the spin-offs that go with it in fighting corruption and particularly harnessing new technologies to strengthen governance. Given your comments, I am interested in why Australia passed up the opportunity to be part of this partnership with 46 other countries. Will we be participating in 2012? Do you have any recommendations?

Prof. McMillan: A criterion for membership of the open government partnership is that the decision is made at the highest levels of executive government. So, clearly, it is not for me to make any decision on that, or really to express an opinion. I did attend an initial meeting in Washington in July prior to the launch of the open government partnership in September. I have made a submission to government analysing all of the issues.

Government will make a decision on whether to join but I must say that we did not have a lot of advance notice of this issue. The meeting in July was really the first that my office and many others knew about it. Certainly, I came back with a lot of questions in my mind about the way the partnership would be conducted. There had been a steering committee forming it but we were not part of that. For example, the open government declaration that was made by the foundation partners was only released about two to three weeks before the open government partnership was formally launched.

So at this stage I think all one can fairly say is that there is an issue of timing. Many other countries have not joined at this stage. I suspect government will address that issue.

CHAIR: I am very sorry, Senator Rhiannon. Because of the lateness of the hour you will have to put any further questions on notice.

Senator RHIANNON: Thank you very much.

CHAIR: Mr McMillan, officers, thank you for appearing before us tonight.