13 September 2013

Regulatory Incapacity

Regulatory incapacity time again, with the SMH reporting that "Australia's federal Privacy Commissioner has blamed the federal government for long delays in assessing breach-of-privacy and freedom-of-information complaints".

Staffing at the Office of the Australian Information Commissioner (OAIC), the agency that encompasses the Privacy Commissioner, has "decreased in line with the [office's] need to meet efficiency dividends imposed by government".

The SMH indicates that "Complaints about privacy are not being allocated to case officers until just over five months after submission, taking about 19 weeks longer than the usual four-week period", with FOI complaints and requests for reviews not being allocated to officers for up to seven months.

The Privacy Commissioner is reported as stating that "The OAIC is experiencing delays across both its functions of privacy and FOI. However, the OAIC undertakes a triage process and if an urgent matter is identified then it will be expedited to a case officer".

As of 3 July the OAIC had the equivalent of 74.23 full-time staff, "25.78 of whom worked in the dispute resolution branch".

In conference presentations and publications over the past four years I have highlighted questions of regulatory incapacity, noting that an underfed - and timorous or distinctly unimaginative - watchdog does not result in best practice in the Commonwealth public sector and does not appropriately foster respect for privacy in the private sector.

We do need to provide the OAIC with resources but should be wary of an under-resourcing excuse. Work smarter rather than merely harder? In contrast to some of its state peers the Commission hasn't - until very recently - offset resource inadequacies by engaging with the media (in some years it was distinctly hermetic) and hasn't offset inadequacies in its legislation through a vigorous and coherent condemnation of bad practice in the public and private sectors. It is instead perceived to be permissive or merely absent.

The softly softly approach is arguably not respected by key Commonwealth policymakers when decisions are made about resourcing: tigers get fed, tabbycats get short rations. Under-resourcing is a substantive concern, given the major changes to the national privacy regime in effect from March next year.