OAIC weakened as commissioner side-steps into NSW role

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Australian information commissioner Professor John McMillan has been named as New South Wales’ new ombudsman, to take over from Bruce Barbour when he finishes on June 30, in a move that looks likely to further weaken the agency.

Because he is aged 65, McMillan has been appointed in an acting capacity for a two-year term. By law, ombudsman cannot be aged 65 or over.

As acting ombudsman, he will likely take over direction of the agency’s high profile investigation into the improper surveillance of senior police between 1999 and 2001, known as Operation Prospect, which has been the subject of a number of parliamentary inquiries. The parliamentary inquiry was sparked in part by concerns the ombudsman may not be able to report on Operation Prospect before Barbour finishes at the end of June.

But it is hard to see how the Office of the Australian Information Commissioner, already undermined by the Abbott government’s funding cuts and uncertainty around its continued existence, will not encounter further difficulties in delivering its statutory requirements to fulfill its freedom of information, privacy and information functions.

McMillan, who was Commonwealth ombudsman between 2003 and 2010, has recently been forced to alternate between working from home in Canberra and the remaining OAIC office in Sydney after the government’s decision to partly de-fund the OAIC in anticipation of the abolition of the agency.

The OAIC’s Freedom of Information commissioner James Popple departed the agency in December 2014 and has not yet been replaced, leaving McMillan and privacy commissioner Timothy Pilgrim to make information commissioner review decisions, usually dealing with agency denials of FOI requests — a key part of the OAIC’s FOI responsibilities.

Even if the government were to embrace the search for a replacement, finding someone new would undoubtedly prove difficult while the sword of Damocles hangs over the body. The government has not responded to questions about its intention to replace McMillan.

Although the government’s intentions to abolish the OAIC were revealed mid-last year, when the budget only contained funding until the end of December, the Senate hasn’t yet agreed to the reform, leaving the commission in the position where many staff have moved on but it still bears the legal responsibility to oversee freedom of information, privacy protection and advice to government on information management policy.

The Canberra office has closed, but some employees remain in Sydney, mostly working on privacy issues. The Mandarin is aware that OAIC staff are still, as of this week, advising federal public servants about ongoing FOI appeals.

After the problems arising from premature de-funding last year, the budget for next financial year will provide roughly $1.7 million for the FOI function and $6.8 million for the privacy function, McMillan told Senate Estimates last month. By contrast, during the 2012-13 financial year, the OAIC spent $5 million on fulfilling its FOI functions, and just over $15 million in total.

Nine staff are currently working on FOI issues, compared to 23 around a year ago, though some functions formerly handled by the OAIC have been moved to the Commonwealth Ombudsman, the Attorney-General’s Department and the Administrative Appeals Tribunal. Nonetheless, McMillan maintains that he and fellow commissioner Pilgrim were doing a good job despite operating in “not an ideal context”.

“The backlog of unresolved matters was standing at around 350, 18 months ago. It is down to under 200 at the moment,” McMillan told Estimates last month. “We receive 30 IC review applications per month and resolve 40; so there is a steady and efficient handling of cases. Of course, there is some reduced work as well. We now refer all FOI complaints to the Commonwealth Ombudsman.”

But some are concerned the government may be cutting off funding as a means of achieving what the Senate has not yet agreed to, namely abolishing the agency. Two weeks ago three former justices of the Supreme Court, Tim Smith, David Harper and Stephen Charles, denounced the government’s actions in a letter to Fairfax:

“Having failed to pass the legislative amendments that would have effected its purpose, the government has achieved the same result by the power of the purse. It has ignored the law, but won a tactical victory. Expedience has again trumped principle.”

Senators have likewise expressed concern that by under-resourcing the OAIC without first passing legislation the government may not be complying with the law. Said Senator Nick Xenophon:

“It has been put to me that there is a legal issue here where there is an argument that the government is bound to uphold the law, and the law states that your office is the independent government agency but it is being sought to be dissolved through a lack of resources.”

But Attorney-General’s Department senior executive Matt Minogue disagreed that the government was neglecting its constitutional responsibilities:

“In terms of seeking to dissolve the office by lack of resources, I think in its proper context what the government did in the budget last year was it made a decision about the future of the office and indicated its intention that that office should not continue. The privacy functions and the FOI functions should be carried on in other ways in other agencies. In terms of the funding for that, moneys were reappropriated back to the Office of the Information Commissioner as a result of the fact that the bill did not pass parliament.

“So government, through this budget, is respecting the fact that the bill has not passed and respects the fact that the office continues. It appropriated back to the office funding for both the privacy functions and the FOI functions for this financial year and for next financial year an additional $1.7 million has been appropriated in recognition of the fact that the office continues and the FOI functions continue.”

On the question of McMillan’s working from home — which McMillan explained as coming down to the gap between the closure of the Canberra office in December in anticipation of the agency’s abolition and the end of his own tenure in October — Minogue responded: “How the Office of Information Commissioner structures itself is, to some extent, a matter for it. Certainly, there is less funding.”

McMillan’s assumption of the role of NSW Ombudsman will further complicate the mess that is the the question of the OAIC.