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Estimates: Legal and Constitutional Affairs Legislation Committee (OAIC letter)

Estimates & Committees
Lee Rhiannon 20 Oct 2015

Lee grills Senator Brandis and the Attorney-General's Department on their contradictory statements about the obligation to continue to fund the Office of the Australian Information Commissioner (OAIC) while simultaneously dwindling funding in preparation to abolish the position, a move which is yet to be backed by the Senate. The OAIC oversees privacy and Freedom of Information (FOI) regulation. Despite the back and forth about the intricacies of the English language, it is a matter to take incredibly seriously, as not funding the OIAC in its current form is potentially a breach of the "Separation of Powers" doctrine. 

Senator RHIANNON: I want to take up some issues to do with FOI and the Office of the Australian Information Commissioner, OAIC. I will just start with some letters that I was given. The correspondence started on 17 August, with a letter to the Attorney-General from the International Commission of Jurists, and the response from the office of the Attorney-General is dated 9 September and signed by Paul O'Sullivan. I found that quite informative about some issues that I wanted to raise here. First, in the letter from Mr John Dowd, he stated—

Senator Brandis: Sorry, Senator. Do you have a copy of that letter?

Senator RHIANNON: Yes, certainly. There are the two letters there. It is your response to the ICJ letter. The ICJ letter, signed by Mr John Dowd, states:

… while the law requires that the statutory body continue in existence, it is a clear breach of the doctrine of the Separation of Powers for the executive branch of government to prevent the ongoing effective discharge of the functions of that body.

My question is: do you agree with that statement of principle?

Senator Brandis: I have not seen the letter, so let's wait until we see the context of what Mr Dowd is saying. But all of this, of course, is against the background—I think I mentioned this before you arrived in the hearing room—of the government's announced intention to legislate to abolish this particular position so as to streamline the process. So I think—if I may say so, with respect—it is a bit of a false comparison to equate interference by the executive government in the performance of a statutory agency with transitional arrangements pending parliament's decision to abolish that statutory agency.

Senator RHIANNON: But surely, while that body exists, there is the requirement that it be given the resources to undertake its work.

Senator Brandis: Senator Rhiannon, I am not sure whether you were here, but Mr Pilgrim did run through the budget and the financial resources that have been provided during the transitional period, including $1.7 million in this financial year and other appropriations that, if you like, I am sure Mr Pilgrim would not mind reciting for you again.

Senator RHIANNON: Maybe just to stick with you for a moment, Attorney-General: the letter from your department did appear to be significant—

Senator Brandis: Well, I have not seen a letter. I am not going to be answering questions about a letter I have not seen.

Senator RHIANNON: I appreciate that, but I have not finished. I thought it would be useful, while we are waiting for the letter, to explore the background of why I am asking the question.

Senator Brandis: Well, I do not need to know. You ask your question and I will answer it. The reasons you choose to ask your question is a matter of interest only to yourself. This is an interrogative process, not a stream of consciousness.

Senator RHIANNON: I do not think that was very necessary, because what I was about to say—and in some ways you have just indirectly answered it—is that the letter did read as though there had been a change in thinking, and that is what I was trying to explore: whether there was a change in thinking.

Senator Brandis: I am extremely happy and ready and willing and able to answer any question you want to put to me, but if it is a question about a letter you will have to wait until I see the letter.

Senator RHIANNON: Thank you. I will go on to another matter, which takes up some questions on notice that I had asked previously and would just like some clarification on. The numbers of these questions on notice are—

Senator Brandis: Sorry—I do not mean to interrupt your train of thought—but I have the letters now, so if you want to go back before you leave that topic—

Senator RHIANNON: Okay; thank you. The O'Sullivan letter reads as though there has been a change in thinking.

Senator Brandis:  Do you want to direct my attention to any particular passage?

Senator RHIANNON:  I gave you that quote, which—

Senator Brandis:  Which paragraph?

Senator RHIANNON:  It comes from the second page, third paragraph from the top, second line:

… while the law requires that the statutory body continue in existence, it is a clear breach of the doctrine of the Separation of Powers for executive branch of government to—

Senator Brandis: No, I think you are confusing yourself, Senator. That is not in the letter from Mr O'Sullivan; maybe it is the letter—

Senator RHIANNON: No, sorry: it is in the ICJ letter. That is what my question was about in the first place.

Senator Brandis:  Sorry; you referred me to Mr O'Sullivan's letter.

Senator RHIANNON:  I apologise.

Senator Brandis: That is fine. So, in the letter from Mr Dowd—on page 2, is it?

Senator RHIANNON: Yes, page 2, third paragraph. It starts on the second line.

Senator Brandis:  Yes; I am with you now. Let me just read that. Okay.

Senator RHIANNON: When you then read your response to this letter, you gain an impression that the thinking of the government may have changed. So, my first question is—

Senator Brandis: I am sorry: before we go on, what part of Mr O'Sullivan's letter on behalf of my office are you referring to?

Senator RHIANNON: Again, on the very top of page 2: 'As the bill is still before the parliament, the OAIC remains responsible for privacy and FOI regulation and the government is ensuring those arrangements are in place for the continued exercise if the IC functions'—

Senator Brandis: It actually says 'that' arrangements, not 'those' arrangements. That is an important material difference. Nevertheless, I have the sentence. Now, what is your point, Senator?

Senator RHIANNON: My point is that that is very different from how it has been presented from your government in past months with regard to these officers.

Senator Brandis: On what basis do you say that? What particular statements on behalf of the government are you referring to?

Senator RHIANNON: I am referring to the run-down of these officers and the lack of resources for them to undertake their work, considering that your legislation has not gone through the Senate, that those officers have continued to exist but have barely been able to do their work.

Senator Brandis: There is a series of false premises in your—it was not even a question, really; it was a statement. But I will assume you are inviting me to respond. There is a series of false premises in what you put to me. First of all, the officers are in being until the legislation passes the parliament. Secondly, the functions are being discharged by Mr Pilgrim as the acting commissioner. Thirdly, I understood you to be saying that the functions are being discharged at a lower level. That is not right. Fourthly, you said that there had been a depletion of resources. Had you been in the hearing room when Mr Pilgrim ran through the budget available to him, you would have heard what resources are being provided. But, nevertheless, all of that having been said, I think that you would allow, Senator Rhiannon, that during a period when the statutory repeal of a body is imminent it is quite sensible to configure the budget in such a way that reflects the fact that its statutory repeal is imminent.

Senator RHIANNON: You seem to be stretching the definition of 'imminent'. You have been aware—

Senator Brandis: It is in the hands of the Senate. I accept that. But your broader point, if I understand you correctly, that there is some variance between the principle as expressed by Mr Dowd and the way that these arrangements have been made by the Commonwealth I do not accept at all. What Mr Dowd says is not a description of the arrangements that the government has put in place for this body in the period between the current budget and its expected statutory repeal.

Senator RHIANNON: It would be good to go on to pin down the details here. Remaining in that paragraph at the top of page 2, in the letter from Mr O'Sullivan, it talks about FOI regulation. What is that referring to, please?

Senator Brandis:  What the paragraph says, so that we may understand it in full, is this:

As the Bill is still before the Parliament, the OAIC remains responsible for privacy and FOI regulation and the Government is ensuring that arrangements are in place for the continued exercise of the Information Commissioner functions.

By the way, that is a complete refutation of the assertion made by Mr Dowd:

In July 2015 Mr Timothy Pilgrim PSM was appointed as the acting Information Commissioner for a three-month period— and that has now been renewed, as you have heard— while the Government considers options for the future of the Information Commissioner position. Mr Pilgrim is performing the functions and exercising the Commissioner powers under the Privacy Act 1988, Freedom of Information Act 1982, and the Australian Information Commissioner Act 2010.

That is the position. What is your question?

Senator RHIANNON:  My question is: what is FOI regulation referring to at that point?

Senator Brandis:  It is referring to the FOI functions provided for by the act.

Senator RHIANNON: So, it refers to all aspects of the act. Thank you. Then it says in the last sentence in that same paragraph:

Mr Pilgrim is performing the functions …

What are the Information Commissioner functions referred to in that passage? I am interested in whether they differ in any way—and, if they do, in what way—from the OAIC responsibilities for FOI regulation. Could you clarify, please?

Senator Brandis: I think the paragraph speaks for itself but, given that you suspect there may be something that is not apparent from the face of what I have quoted to you, I will consult Mr O'Sullivan, who is the author of the letter, to inquire of him whether or not what you are putting to me is correct. So I will take that question on notice.

Senator RHIANNON: I understand that the first assistant secretary, Mr Minogue, may have assisted with that letter, so would he be able to expand on that letter?

Mr Minogue: That letter, I suspect, would have come through the department in the normal process. In terms of expanding on it, I think that the way the Attorney has described it is accurate. The FOI Act provides for rights and responsibilities, and the Information Commissioner is responsible for overseeing the framework as to how the Commonwealth discharges its responsibilities there. I think the reference to 'the regulation' and 'the functions' is a generic reference to the act, how it is exercised and the rights and responsibilities. What Mr Pilgrim has said, previously, was how they are going about those functions.

Senator RHIANNON: Can you explain how they differ from the OAIC responsibilities for FOI regulation? Can you clarify that, please?


Mr Minogue:  I am misunderstanding. The OAIC has responsibilities and powers under the act.

Senator RHIANNON:  But we are referring here to the Information Commissioner.

Mr Minogue: The way the act is structured, the Information Commissioner has certain powers as the head of the OAIC, just the same as every agency has a CEO or secretary who is the accountable officer in public governance legislation. Apart from those head of agency powers the Privacy Commissioner, the Information Commissioner and the Freedom of Information Commissioner were each able to exercise each other's powers but for those head of agency functions. Mr Pilgrim is now the acting Information Commissioner, so he can exercise all the powers of all the commissioners.

 Senator RHIANNON: The letter from Mr Dowd also takes up the issue of statutory mandate.  In Mr O'Sullivan's reply, that is not covered. It would be useful for that to be clarified.

Senator Brandis: What are you referring to in the letter from Mr Dowd? What words that Mr Dowd uses are you enquiring about?

Senator RHIANNON: I will come back to that one, Attorney-General. I have lost my paragraph number and, rather than hold us up, I will move on to other questions.


CHAIR:  I am afraid your time has finished, but you can come back later.

Senator RHIANNON: Thank you, Chair. I want to return to the letter that was circulated to the Attorney- General signed by Paul O'Sullivan. The final sentence of the final paragraph states: 'Additional resources will be provided to the OIAC for the continued exercise of its functions in 2015-16'. It is the words 'FOI functions' that I am after some details on. Can you identify the 'FOI functions' that it is intended the OIAC should continue to perform?

Senator Brandis:  [inaudible] functions relating to FOI to be performed by the OAIC.

Senator RHIANNON: Could we have details about that? In Mr O'Sullivan's letter, in the two bottom paragraphs—and this may be a straightforward answer, Attorney-General—the three functions that are identified are: the external merits review of FOI decisions; investigations of complaints about FOI processing for agencies; and the issuing of FOI guidelines and annual reporting on FOI statistics. Are they three of the functions that were referred to in that letter?

Senator Brandis: I am not the author of the letters, Senator. If you want me to anatomise the FOI functions as they are conferred by the act, that is one question. What Mr O'Sullivan may have had in mind when he used that phrase is really a question best directed to him.

Senator RHIANNON: Will I go to Mr Minogue—if it is correct that you also had input into this letter, are you able to confirm—

Senator Brandis: Mr Minogue did not say that; Mr Minogue said that the letter may have been circulated through the Attorney-General's Department, which is a slightly different thing.

Senator RHIANNON: I am not verballing anybody; I am just trying to find out if you are not in a position to assist, Attorney-General, it really is quite a straightforward question.

Senator Brandis: You are asking me what the author of a letter, who was not me, meant by a phrase they chose to use, and I really think the only person who can answer that question is the author of the letter.

Senator RHIANNON: With all due respect, Attorney-General, this is from your department about a most critical issue, and we are trying to understand what this means, considering many of these functions have been attended to in quite a minimal way.

Senator JACINTA COLLINS: No, there is a response by his chief of staff, not the department, to a letter that was written to him.

Senator Brandis: That is correct, Senator. It is not a letter from the department; it is a letter from the Attorney-General's office . It was not written by a departmental officer; it was written by my chief of staff, Mr Paul O'Sullivan. I am not the author of this letter and I will, as I indicated before, take the question on notice so I can make an inquiry of Mr O'Sullivan responsive to you question.

Senator RHIANNON: Thank you for taking it on notice—so just to elaborate on what would be useful to take on notice and gain a response, I repeat: there are three functions identified in those last two paragraphs on the first page—the external merits review of FOI decisions; investigation of complaints about FOI processing for agencies; and the issuing of FOI guidelines and annual reporting on FOI statistics. Looking at the OAIC website, it also lists the independent monitor of FOI matters and responsibility for regulating and providing advice on the operation of the Freedom of Information Act 1983. Could you take it on notice if those five points are what is covered when the word 'functions' is used.

Senator Brandis:  I will ask Mr O'Sullivan what he was referring to when he used the word 'functions', but  it is not for me to speculate on what the author of a letter may have meant by the use of the words he chose to use.

Senator RHIANNON:  So you are agreeing to take it on notice?

Senator Brandis:  I have said I would take it on notice.

Senator RHIANNON: I would like to move on to clarifying some information that was supplied in questions on notice from earlier this year—this is question number AE15/078. In response to a question at an earlier estimates—this is December 2013—I noted in my question that we had heard that the FOI workload was increasing by 10 to 15 per cent per year. I asked in February-March this year: was there anticipation that the workload would decrease? The answer that I received was:

Yes. It is anticipated that the number of applications to the Administrative Appeals Tribunal (AAT) will be less than the number of applications for external review received by the Office of the Australian Information Commissioner.

It goes on to say:

This is due to two major reasons—

and this is where my question goes to—

(1) the requirement for internal review will improve the quality of decision making …

What evidence do you base that response on? I will say it again:

the requirement for internal review will improve the quality of decision making …

How did you determine that that would occur before it had happened?

Senator Brandis:  To whom is your question directed, Senator?

Senator RHIANNON: As you often come in, Attorney-General, and take over the questioning, I thought that you would be very capable of giving direction on this matter and assisting the committee.

Senator Brandis:  I think the conclusion is made on a judgement about the best governance arrangements.

Senator RHIANNON: Surely, Attorney-General, even for you that is not an answer. An assumption has been made there. It is implied that there is evidence.

Senator Brandis:  No, it is not.

Senator RHIANNON:  It says:

… the requirement for internal review will improve the quality of decision making …

Senator Brandis:  That is a judgement.

Senator RHIANNON: Yes, and I am asking what the judgement is based on. That is quite a straightforward question.

Senator Brandis: I will take that on notice, because that judgement was, no doubt, contributed to by the thinking of a number of people, which, I venture to imagine, was based on their experience of governance arrangements.

Senator RHIANNON: There were two major reasons stating why the assumption is made that there will be a decrease. The second one is: 'The application fee for external merits—

Senator Brandis:  It is not an assumption; it is a prediction, or an expectation.

Senator RHIANNON:  The English language is very delightful, Senator Brandis.

Senator Brandis: No, it is a very important difference. That was not an input into the decision. That was an expectation of the outcome of the decision.

Senator RHIANNON:  If you dispute that this is an assumption, I will look forward to hearing your answer.

The second reason given is:

… the application fee for external merits review is an appropriate mechanism to ensure that genuine applications are able to be pursued.

What is the evidence for coming to that assumption?

Senator Brandis: It is not an assumption and nor does it say there is evidence. I would characterise the proposition stated in the sentence you have read aloud as a judgement.

Senator RHIANNON:  But what is it based on?

Senator Brandis: I will take it on notice, but I dare say it is based on the experience of governance of those who contributed to the decision.

Senator RHIANNON: And what is that experience? Has this been done before? Are they drawing on something practical?

Senator Brandis: I am advised by very experienced senior public servants. I am advised by very experienced and skillful policy advisers, as is any minister, and decisions about governance arrangements that are made are invariably informed by the views that emerge from those sources, as well as the judgement of ministers.

Senator RHIANNON:  So you will take it on notice to—

Senator Brandis: I will, out of courtesy to you. I cannot imagine that I will be elaborating beyond that. When you say 'evidence', to me, as a lawyer, I think of evidence as empirical data of some description. But it is not only empirical data that informs policy choices. Often it is judgement, experience, intuition, values or the various other factors that go into ultimate policy choices.

Senator RHIANNON: But surely, Attorney-General, considering the enormity of these changes, it is only reasonable to put it on the public record when such an emphatic statement is made that it is an appropriate mechanism. I look forward to your response. I am running out of time, so it is only fair that I move onto the next question.

Senator Brandis: You used the phrase 'enormity of these changes'. I do not think the changes are particularly enormous. The purpose of the changes is to streamline a process and avoid unnecessary duplication by having a double review system, uniquely, in Commonwealth ministerial review.

Senator RHIANNON: But if fewer people are able to interact with the system that is something that should be explored. I now refer to question No. AE15/068 and the answer to 1a. The English is not fantastic, but I think we can get the meaning of it:

The Attorney-General’s Department notes that AAT application fees may be reduced fee to $100 in cases of hardship …

Could I ask for figures here, please. How many reduced fees have been issued? What was the total number, and what was the percentage overall?

Senator Brandis: I will take that on notice, and I apologise for the evident absence of an indefinite article somewhere in that sentence.

Senator RHIANNON: Please also take on notice how many applications were successful overall and how many were knocked back. Could that be in numbers and percentages, please.

Senator Brandis: Yes.

Senator RHIANNON: Finally, there is question No. AE15/077. This was about gaining some data on the number of FOI requests for 2014. The last quarter, from 1 October to the end of the year, was 3,042. But it was noted that some agencies had not reported their figures for this quarter, so I was just after the total figure for that year, if that could also be taken on notice, please.

Senator Brandis: Yes.

Senator RHIANNON:  Thank you.

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