Senate's last chance to save FOI watchdog and protect the rule of law
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Senate's last chance to save FOI watchdog and protect the rule of law

Since 2010, the Office of the Australian Information Commissioner has played the critically important role of monitoring and supervising the Commonwealth's freedom of information system. It has also provided independent reviews of refusals of FOI applications and complaints about the handling of such applications. The Abbott government has a bill before the Senate that, if passed, will end this highly beneficial regime. But the Senate is not complying. Now, with the unexpected news that the commissioner, Professor John McMillan, will retire at the end of this month, the third act has opened in this ongoing saga.

The first act began when, after the government announced it wished to abolish the office, it provided the office with a budget sufficient to fund it only until the end of 2014. The House of Representatives passed the bill to abolish the office. Shortly afterwards, however, it became apparent the bill would not be passed in the Senate. The government decided not to seek the vote of the Senate on the bill but to leave it in its list of government business. There it remains.

Happier times: Professor John McMillan launches the apparently doomed Office of the Australian Information Commissioner in 2010.

Happier times: Professor John McMillan launches the apparently doomed Office of the Australian Information Commissioner in 2010.Credit:Rob Homer

The second act opened with the announcement that one of the office's three statutory officers – the FOI commissioner, James Popple – resigned to become a member of the Administrative Appeals Tribunal, as of January 1 this year. It later became clear that, despite the government's failure to secure the Senate's consent to abolish the office, Popple would not be replaced.

In the meantime, the legislation by which the office was created, and by which it and the government remains bound, continues to operate. The Australian Information Commissioner Act 2010 requires the office to perform its statutory duties, which are spelt out in that legislation. Nevertheless, in defiance of this law, the government has refused to restore the funding without which those duties cannot be fulfilled.

The third act in this dismal drama centres upon a Senate estimates hearing. Shortly before the hearing, we had raised concerns in The Canberra Times about the legal basis upon which the government claimed to be entitled, without the agreement of the legislature, to bring about the demise of an entity created by Parliament and which Parliament has declined to euthanise. We were particularly concerned that section 61 of the constitution refers to the executive power of the federal government as extending to "the execution and maintenance of this constitution and to the laws of the commonwealth". It is arguable that the Abbott government has failed to "execute" and maintain the laws of the Commonwealth, and has thereby acted in a way that is contrary to two of our constitution's fundamental principles: the rule of law and the separation of powers.

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At the hearing, several senators raised these issues. In response, a senior executive of the Attorney-General's Department, Matt Minogue, acknowledged that, being unable to proceed with its bill to abolish the Office of the Australian Information Commissioner, the government's duty was to respect the fact that the office and its functions continued. He also appeared to assert, however, that the government had done its duty by providing sufficient funds for that to happen. The reality is otherwise. The money available to the office is nowhere near enough to enable it to give effect to its legislative mandate. No longer can the office perform its key role of monitoring and supervising the FOI system. No longer can it advise the government on FOI matters. No longer can it consider complaints about the handling of FOI applications. Its ability to carry out these crucial functions has been negated. It is true that the Attorney-General's Department has absorbed some of these functions. But that is to defeat Parliament's original and ongoing intention.

Moreover, the office's ability to provide a free review of refusals of FOI applications has been severely truncated and the number passing to the AAT has increased by 47 per cent. The AAT will deal with them only if applicants pay the $816 fee.

In these circumstances, the fourth act of this drama ought to play out this week in Parliament. There will be ample opportunities for the Parliament to ask questions of the government and Attorney-General George Brandis; and senators opposing the abolition bill ought to use the power they have to bring the bill on for a vote and secure its rejection.

Let us hope that, for the sake of the integrity of our parliamentary democracy, the rule of law and the separation of powers, the Abbott government withdraws the bill to abolish the office and provides it with the resources it needs to perform all its statutory functions.

Tim Smith, David Harper and Stephen Charles are former justices of the Supreme Court of Victoria.