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Estimates: Legal and Constitutional Affairs Legislation Committee (Office of the Australian Information Commissioner)

Estimates & Committees
Lee Rhiannon 28 May 2015

CHAIR: Senator Rhiannon.
Senator RHIANNON: Professor McMillan, why do you work at home? Were you refused an office in Canberra?
Prof. McMillan : No. The order of events was that the Canberra office was closed in early December and at a time when I expected that my term would end on 31 December. It was then unclear for some months thereafter as to whether the legislation would be enacted by the parliament, and so while I had a brief discussion with the department and a more extended one with my own office about working arrangements, it was always uncertain what my continuing tenure was and it seemed impractical to undertake substantial work to establish new office arrangements. I add that my term expires in another five months, at the end of October, which is why I have not actively sought to make some alternative arrangement. In the meantime I have instituted a working arrangement that I think is effective.
Senator RHIANNON: Was it required for your home office to be set up by the department to allow you to do all this work?
Prof. McMillan : No. I had support from the OAIC and our IT section, which is located within the Human Rights Commission. They visited my home and helped me set up an effective technology environment. But I go to Sydney in alternate weeks and arrange my work accordingly.
Senator RHIANNON: So you are still full-time?
Prof. McMillan : Still full-time.
Senator RHIANNON: How many days do you spend in Sydney and how many days in Canberra?
Prof. McMillan : I try to do an alternate week arrangement. In the weeks that I go to Sydney I usually try and work there for three days, sometimes it has been four. I also have other responsibilities in Canberra-I inspect documents, I attend meetings, I give presentations.
Senator RHIANNON: I noticed in some of the coverage about these very unusual arrangements that we have that reference was made to how the work is being carried out, specifically with regard to section 61 of the Constitution which, as you are probably aware of, sets out that the executive government's power extends to the execution of the laws of the Commonwealth. Are you executing, giving effect to implementing-however we want to define the word 'executing'-the law that covers the OAIC?
Prof. McMillan : If I can speak here both as a statutory office holder and also as a former public law academic, I am well aware of the requirements of the Constitution and of my statute, and I have never had any personal concern about whether I have failed to discharge my statutory responsibilities under the statute and under the broader constitutional framework.
Senator RHIANNON: Do I conclude from that that you are saying that these unusual arrangements are not impacting on your statutory duties?
Prof. McMillan : I gave a slightly convoluted answer because I wanted to avoid getting into giving an opinion on constitutional arrangements. But let me say quite honestly, I am satisfied as a statutory office holder that I am discharging my functions in a lawful fashion.
Senator RHIANNON: Did anyone from your office attend the International Conference of Information Commissioners in Chile last month?
Prof. McMillan : No.
Senator RHIANNON: Have you attended previous meetings of this body?
Prof. McMillan : Yes. The international conference is held every two years, and I had previously attended a conference in Germany in 2013 and in Ottawa, Canada, in 2011.
Senator RHIANNON: What is the effect of this lack of representation at such gatherings, please?
Prof. McMillan : I attended the earlier sessions because I felt that it was useful in an international context that there be contact between an Australian information commissioner and the information commissioners of other countries. I found the links that I established to be vibrant and useful. Equally, I decided not to attend the conference this year and to focus on other responsibilities and I am satisfied, as much as I can be at a personal level, that I am still discharging the responsibilities of the office.
Senator RHIANNON: Was that influenced by the expected change; that you shortly did not expect to be in the job?
Prof. McMillan : Yes, Senator. If the circumstances of the office had not changed then I probably would have sought permission from government to attend the international conference. I decided not to seek permission and to instead remain in Australia and continue in discharging responsibilities here.
Senator RHIANNON: You have replied to a couple of senators who have asked issues about the backlog and I just wanted to clarify some matters. I understood that the backlog of review applications-you said 200 at one point and then 199.
Prof. McMillan : Yes, sorry, I was rounding up at one stage.
Senator RHIANNON: Understandable. What I have in my notes, which said, 'appears to be a contradiction,' so I just want to clarify it. This was in your opening statement so I may have got it wrong. Earlier on you said you no longer deal with FOI complaints, they are referred to the Ombudsman.
Prof. McMillan : Correct.
Senator RHIANNON: Then later I had that you were principally on FOI matters. So, could you clarify, please?
Prof. McMillan : As Information Commissioner I have responsibilities under the FOI Act, the Privacy Act, and in relation to information policy advice to government. But I concentrate on my responsibilities under the FOI Act at the moment, though I am still in consultation with Commissioner Pilgrim and other staff members about other matters and we still hold weekly executive meetings. I participate in the work but I concentrate on FOI review functions, but they are being discharged differently to the way they were being discharged, for example, a year ago.
Senator RHIANNON: Just going back to the numbers. At one point when you were talking about the numbers-I think it was when you said the 200 figure and you said of the 200 applications, 'it is not as serious as it was'. It still sounds like a lot. It still sounds like to the person who is waiting that there are a lot of people waiting.
Prof. McMillan : The number in the queue at the moment, 199, has to be seen in context of a steady workload into the office of, on average, 30 IC review applications per month. It has to be seen in the context of a backlog that was close to around 350 at one stage. Also, in the legislative context, it will necessarily take a matter of weeks to resolve any new matter. It will quite often take many months to resolve a disputed matter. I have said on other occasions that there is no doubt that, since the amendments to the FOI Act in 2010, there has been a substantial increase in applications for IC review and also for FOI requests that we classify as more complex. For example, they relate to a request for policy advisings in government. This is partly a response to the removal of application and review fees in the 2010 amendments.
I have said on other occasions and in submissions to government that, whatever transpires in the future, the FOI scheme needs amendment so that it better adjusts the tension and the pressures that government agencies feel, and the expectations and aspirations of applicants, and reflects also other measures available to people to obtain information from government other than through FOI requests. I agree that circumstances are not ideal at the moment, but, independently of legislation before this parliament, I have advocated the need to review quite a number of features of the FOI arrangements.
Senator RHIANNON: Professor, how many matters have you passed to the AAT in the last 12 months?
Prof. McMillan : In the last 10 months of this reporting year, we have discontinued 56 under a provision of the act that says I can discontinue the matter and the applicant can then commence the proceedings afresh in the AAT. We do not refer the matter to the AAT; we simply discontinue. The short answer is 56 in the last 10 months.
Senator RHIANNON: Is it possible, out of those 199, to inform the committee how many are from individuals trying to ascertain information about their own circumstances and how many are from organisations?
Prof. McMillan : I do not have those figures at hand, and my guess is that we do not have those.
Mr Pilgrim : No. We will take on notice whether we can do that.
Senator RHIANNON: Thank you. If the government wishes to eliminate what it describes as a two-level merits review for FOI decisions, are there alternatives to what is proposed in the FOI amendment bill? Can you comment about the structure of such arrangements in other states? Are there other ways to do this?
Senator Brandis: That really asks the witness to reflect on alternatives to the government's policy, and therefore it really is a question about policy. I would respectfully suggest that that is not a proper question.
CHAIR: If that is the case, it is not.
Senator RHIANNON: Thank you, Attorney-General. Professor, how have the developments of the last 12 months impacted on the office generally? I also want to go to the privacy functions. To what degree has that been limited? How has it changed?
Prof. McMillan : My short answer is that, clearly, the arrangements are, as I have said, awkward in some respects and undesirable, but at the same time the office has focused intensely on how to discharge its statutory responsibilities. In relation to IC review matters, I think we have been very successful in dealing with those now on a more streamlined and efficient basis. There are other activities I have undertaken in the past that the office does either less or not at all at the moment. Complaint investigations is one example.
Senator RHIANNON: Thank you.
CHAIR: Thank you, Senator Rhiannon.

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