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Senate Estimates: Legal and Constitutional Affairs Legislation Committee: Attorney-General's Portfolio (Office of the Australian Information Commissioner)

Estimates & Committees
Lee Rhiannon 4 Nov 2016

Tuesday, 18 October 2016

Senator RHIANNON: Attorney-General, in May this year at the Senate estimates you said that the 2014 decision to abolish the OAIC was 'a good economy measure—and we have not changed our minds'. In what way, and to what extent, was it a good economy measure?

Senator Brandis: Well, we have changed our minds since, and I am pleased we have.

Senator RHIANNON: Sorry, could you repeat that.

Senator Brandis: We have changed our minds since. I am pleased we have. It is no longer the policy of the government to do so.

Senator RHIANNON: Why did you change your mind?

Senator Brandis: Because we thought better of the 2014 decision.

Senator RHIANNON: Could you expand on that. On what basis? It is a considerable change.

Senator Brandis: Not really. I am not going to comment on decisions in previous financial years that have been reversed. I do not think that is germane.

Senator RHIANNON: It is actually very relevant to how estimates work—understanding—

Senator Brandis: Well, we are reviewing the estimates of the current financial year. A policy was made in a previous financial year, essentially for reasons of economy. That decision was revisited more recently and reversed, and I am glad that it was, and I am really delighted that Mr Pilgrim's position has been regularised.

Senator RHIANNON: The OAIC Canberra office has been closed. Is it intended to reopen it?

Mr Pilgrim: It is not our intention to reopen the office. The functions that we undertake in terms of IC reviews can be sufficiently carried out through the office in Sydney. Obviously we receive most of our information electronically, and our work with the agencies is able to be undertaken in that way. So there is, in my view, not a need to reopen an office in Canberra.

Senator RHIANNON: Is there any loss of roles with that permanent closure?

Mr Pilgrim: All the functions under the FOI Act that were being carried out through an office that was in Canberra are being carried out by me and the staff in the Sydney office.

Senator RHIANNON: Thank you. Is the role of the OAIC on freedom of information matters now effectively confined to its review of refusals of requests for access to information?

Mr Pilgrim: No. That is certainly one of the functions. Under the Freedom of Information Act, I am able to undertake complaints about the administration of FOI matters. Someone could bring in an issue, for example, about the timeliness or otherwise of an agency's handling, and that could be handled under the complaints procedures. As you point out, there is the ability for someone to seek review of an access decision or refusal of access decision under the Information Commissioner review provisions, and that still exists. I have the ability to undertake an own-motion investigation if I believe I need to look at the activities of an agency as well. So those functions are still being undertaken. The whole of the functions under the FOI Act that sit with the Information commissioner are being undertaken.

Senator RHIANNON: I understand some functions were lost and that there was a period when they were not able to occur. What are those functions that were lost, and when is it intended that they will be restored and taken up?

Mr Pilgrim: I think you might be referring to the decision in 2014. We transferred the function of the complaint handling—and I should add there that the complaints that came in under the FOI Act were usually around 50 to 60 a year; they were not the larger component of the workload of the office. They went to the Ombudsman's office. But, since the decision and the budget changes, we have taken those functions back on since 1 July this year. Similarly, the function for reviewing the guidelines and providing advice through that process to government agencies was intended to go, or did go, to the Attorney-General's Department. I have taken those functions back on and, as I mentioned in my opening address, we are currently in the process of reviewing and updating the guidelines for agencies and for applicants.

Senator RHIANNON: Thank you. This might be a question for the Attorney-General or maybe for you, Mr Pilgrim, because it is about your actual appointment. But I noted that in the information—it is in section 14 of the act—about the FOI Commissioner it says: A person may only be appointed as the Freedom of Information Commissioner if he or she has obtained a degree from a university, or an educational qualification of a similar standing, after studies in the field of law. Do you qualify in that way?

Mr Pilgrim: No, I do not qualify in that way, but I am not being appointed as the Freedom of Information Commissioner; I have been appointed as the Australian Information Commissioner and also the Australian Privacy Commissioner, and those requirements are not part of the statute for those positions.

Senator RHIANNON: I am well aware of that. I was just trying to understand. Attorney-General, has this had something to do with why we now no longer have an FOI Commissioner?

Senator Brandis: No—if I am understanding your question correctly. It was merely a matter of trying to regularise and make more efficient the process.

Senator RHIANNON: So it was about making the process more efficient?

Senator Brandis: Yes, I think so. Mr Pilgrim, who does this every day, would be in a better position than I to describe the functionalities here, but there did appear to be a very significant degree of overlap and duplication in the way in which three different offices were created to do essentially different aspects of what, if it is not the same job, deals with issues arising in the same area of policy.

Senator RHIANNON: What I am trying to understand is this. Mr Pilgrim, you were appointed as Acting FOI Commissioner five times. I think that is accurate.

Mr Pilgrim: No, that is not correct. I was appointed as the Acting Australian Information Commissioner prior to my permanent appointment recently—not to the FOI Commissioner position.

Senator RHIANNON: You were never the Acting FOI Commissioner?

Mr Pilgrim: No, and I should clarify and add to an earlier answer to a question I made. All the powers of the FOI Act are actually invested in the Australian Information Commissioner, and as Australian Information Commissioner I am able to exercise all the functions of that act.

Senator RHIANNON: In your present position?

Mr Pilgrim: In my present position, yes.

CHAIR: Thanks very much, Mr Pilgrim, for your attendance and for your evidence.

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