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Senate Estimates: Legal and Constitutional Affairs Committee (Australian Information Commissioner)

Estimates & Committees
Lee Rhiannon 2 Dec 2013

Legal and Constitutional Affairs Legislation Committee
Office of the Australian Information Commissioner

Senator RHIANNON: I was interested if staff numbers in any of the FOI units across government agencies have been reduced since the new government came in.

Prof. McMillan : Is that a question about the staff numbers across the Australian Public Service generally? 

Senator RHIANNON: I was going to ask Mr Wilkins one right across his responsibilities but I was also interested in narrowing it down to FOI units.

Prof. McMillan : We have never collected statistics-in the three years of this office we have not collected statistics on staff numbers in agencies. We collect statistics on requests to agencies and there has been a slight increase over the last year. We collect statistics on the estimated cost to agencies of administering the FOI Act and there was a noticeable increase in that last year. Beyond that, we do not have figures on the actual staff numbers in agencies. I think in many agencies people would be discharging a mixture of functions, including FOI.

Senator Brandis: Senator Rhiannon, I do not mean to interrupt the flow of your questions, but I wonder if you might indulge me to let me expand just a little on the answer I gave to Senator Ludwig because I do not want it to be misunderstood. Senator Ludwig said to me that you would be surprised that a government agency was treating the Hawke review as government policy and I replied that the recommendations of the Hawke review are not government policy. Let me explain what I mean by that. No decision has been made by cabinet in relation to particular features of the Hawke review. In that sense, the Hawke review is not government policy. However, I think in a more general sense you may assume that the government intends to move forward on the Hawke review. So as a general proposition, reforming the FOI Act arising from the Hawke review is government policy but no particular recommendation has so far been taken to cabinet. Do I make myself clear about that, Senator Ludwig?

Senator LUDWIG: You did the first time. That was perfectly clear. We do not know what recommendations you will bring forward. We do not know how they will look in legislation.

Senator Brandis: We share Dr Hawke's view that the FOI legislation should be reformed. The Labor Party is probably with us on that, but as to the particular detail of those reforms, that is a matter for discussion. Thank you, Senator Rhiannon.

Prof. McMillan : I have taken the time to clarify the last answer I gave. Can I just say that there is a breakdown on page 141 of the OAIC's 2012-13 report of the information provided to our office by agencies concerning total staff hours spent on FOI matters. That shows an increase over the last three years, but of course it will be nine months before we have figures for this year.

Senator RHIANNON: Nine months before we will have figures?

Prof. McMillan : Yes, because it is an annual financial year reporting exercise.

Senator RHIANNON: Mr Wilkins, I was interested in staff numbers in FOI units, if that is possible, if you could inform us whether they have been reduced since the new government took office or, if that is not possible, across your whole department?

Mr Wilkins : There has been no diminution in the department.

Senator RHIANNON: Are there plans within the department to pursue redundancies or job cuts? Is that part of your current work?

Mr Wilkins : Sorry, you are asking a more general question now about-what exactly is the question, Senator?

Senator RHIANNON: The question is as I asked it: are there plans within your department to pursue redundancies or job cuts?

CHAIR: This was raised earlier. Mr Wilkins indicated that he would be answering it later on this evening during departmental.

Senator RHIANNON: Okay, I am sorry, I was not here then. So we will come back to that this evening. Thank you. Commissioner Popple, I note that in your annual report the reported cost attributable to agency compliance with the FO I Act had gone up. You identified an 8.4 per cent increase. It was interesting to read in the report about the changes that will occur on 12 March next year, when there will be the additional enforcement powers for resolving the various investigations. I am interested in how you anticipate that will impact on costs and how you are managing that.

Dr Popple : I think that question is best answered by my colleagues, because the changes that you refer to that are happening in March next year are changes to the Privacy Act, and they will impact on our officers involved in that area.

Senator RHIANNON: I apologise; I still get confused.
Dr Popple : Not at all.

Prof. McMillan : I will commence, and Mr Pilgrim might elaborate. In the annual report and in statistics that we publish quarterly on the web, the indication is that the workload within our office is increasing. As a general rule the number of complaints about freedom-of-information administration and about Information Commissioner reviews, which are merit reviews, are going up by about 10 to 15 per cent a year. That is the trend line in front of us. Privacy complaints, which extend to private sector bodies as much as government agencies, increased last year by about 16 per cent; in the last three months they have increased by close to 35 per cent. As we have also elaborated in the annual report, there is considerable work being undertaken in the office to prepare for the implementation of the privacy reforms on 12 March next year. The office will be required to publish in excess of 50 legislative instruments, codes, guideline notes and other documents. In summary, there is a general increase in workload. There has been no increase, obviously, in the staffing.

Senator RHIANNON: I note that in your annual report you make that very point that you have just made, that you have received no additional resourcing. Are you getting to breaking point? Your annual report says that you are managing it, but we are seeing that the trend is upwards for the amount of work. Are you making an assessment of how long this can continue?

Prof. McMillan : We have been quite public now in Senate estimates questioning and in the annual report and occasionally in speeches about the workload pressures faced by the office. The way that that is most immediately obvious-or the main downside-is that the delays in resolving matters extend. Particularly the delay in opening new matters-that is, assigning a matter that comes in the door to a case office-is extending. For example, with applications for Information Commissioner review on the latest statistics published on the web, it is about 228 days-that is close to eight months-before a new matter is allocated to an officer. There are exceptions-we have a triaging process with which we analyse matters as they come in. So that is the most observable consequence of the situation we are in.

Senator RHIANNON: So, in summary of that, is it correct to say that the work is being compromised because of the lack of resources?

Prof. McMillan : We do not think the quality of the work has been compromised. The way we have put it is that we are unable to meet the performance standards that we set for ourselves. I have certainly indicated very publicly that I would be anxious for the government to consider change to the Freedom of Information Act because we believe some of the recommended proposals for change that we and the Hawke review have made in the past could affect the workload of both agencies and our office. I made those comments in relation to the previous government, and the importance is such that I have made them in the context of a new government.

Senator RHIANNON: Thank you. Dr Popple, with regard to how your work has progressed since the change of government, have their been any new directives to agencies about the application of FOI?
Dr Popple : Do you mean by us?
Senator RHIANNON: Yes.

Dr Popple : The guidelines would have been amended. It might have been after the change of government, but they were not amended because of the change of government. We have certainly not made any directives of any such nature.
Senator RHIANNON: So it has not happened.
Dr Popple : No.

Senator RHIANNON: Thank you. Are there plans for a more comprehensive review of the FOI Act following the Hawke review?

Dr Popple : You might be aware that the first recommendation of the Hawke review was that there should be a more comprehensive review. Dr Hawke identified some aspects of the system that he thought would be appropriately dealt with by that review. He also made some other recommendations about things that he thought could change without having to wait for that review. We have already, as Professor McMillan mentioned a few minutes ago, provided our response to that review to government. It is available on our website. We have a slightly different view from Dr Hawke about some of the matters that we think do not need to wait for a comprehensive review-things that we think could change sooner than that and which we think might actually work to improve the system and maybe also improve our capacity to perform our role within that system without further resourcing and just changing some of the framework.

Senator RHIANNON: If I understood that, there are some things that you see could happen in a shorter time frame. To go to back to that recommendation with regard to a more comprehensive review, as the Hawke review identified: do you support that more comprehensive review?

Dr Popple : Yes. There are certainly some aspects that we think are quite large issues that would require further review before they are implemented if the government decided to implement them. Dr Hawke also pointed out that there would be some benefit if the act were rewritten in plainer English than it is now, so at the very least that would be an achievement. But there are some other issues. For example, Dr Hawke identified a question that has been around for a long time about whether or not the act should apply as it does now to documents as opposed to information more broadly defined. For example, you might make an application, and the response would be a newly generated piece of information. That is a significant change if it were to be made and it would clearly require some considerable thought before it were implemented.

Senator RHIANNON: And are there any other areas? You said some aspects. I was just wondering if there are other aspects as well as that one.

Dr Popple : Yes, there are a number of others. We have separated these as an attachment which you will find on our website. Dr Hawke proposed a comprehensive review, and we agreed with him that some of those matters that could be sensibly dealt with in a comprehensive review include whether the act should include provisions to protect decision makers from interference in the decision-making process; whether the FOI act should provide a right of access to information rather than a right of access to documents, as I have just mentioned; whether the act should be amended to allow for representative complaints made on behalf of a group against the same agency where the same common issue of law or fact arises; and whether the same protections against civil and criminal actions that apply to a release of documents under the FOI Act should apply to documents provided under an administrative access scheme. Those are four that we identified that we thought would indeed benefit from some further review. We have gone on to list in that attachment some of the other matters that we thought could perhaps be dealt with more quickly than that. I am happy to take you to those if you like; but, as I said, they are available on our website.

Senator RHIANNON: I am sorry that I missed that. Is it easily identified? Is it under the section about the Hawke review? I must admit I have not come across it.
Dr Popple : Easily identified?
Senator RHIANNON: You know what websites are like. Sometimes you can find things and sometimes you cannot.
Dr Popple : Oh, I am sorry. It is available in the statements section of our website.

Senator RHIANNON: Okay. I will go to that and check it out. Thanks.
Prof. McMillan : Certainly we can invite you to contact the office if you have trouble finding it.
Senator RHIANNON: Thank you very much.
CHAIR: We are five minutes over our allotted time for these people, and Senator Ludlam wanted to ask a couple questions, so I am sorry but we will have to interrupt you there.
Senator RHIANNON: Okay.


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