From this week's Legal and Constitutional Affairs Legislation Committee Estimates hearing regarding the Office of the Australian Information Commissioner
CHAIR: Welcome. Do either of you want to make an opening statement?
Mr Pilgrim : Yes, thank you. I would like to make a very short opening statement. I would like to possibly assist the committee on some developments with the Office of the Australian Information Commissioner since we last appeared before the committee in December of last year. I am appearing today as the acting Information Commissioner as well as in my usual capacity as Privacy Commissioner. Professor McMillan has asked me to extend his apologies to the committee for not being here as he is currently on leave, which was planned some time ago—last year, in fact.
The committee will be aware that the bill to disband the OAIC was not considered by the Senate before it rose on 5 December 2014. So the office is continuing to discharge its functions under both the Privacy Act and the Freedom of Information Act. This work has continued but in changed circumstances. The Canberra office of the OAIC was closed on 5 December 2014 and all Canberra based staff except for the Information Commissioner have left or have taken up work in other government areas. The Information Commissioner himself continues to work from both the Sydney office and a home base in Canberra, with office assistance and IT support. He has, for example, worked in the Sydney office in three of the first six weeks of 2015. The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner.
In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT. The privacy functions are being undertaken by the majority of the staff in the Sydney office. And I would just like to add that over the past 12 months these staff have implemented some of the most significant reforms to the Privacy Act since its commencement and have done so at a time when we have seen quite a significant increase in privacy matters and complaints coming to the office. But in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values. Thank you.
CHAIR: Thank you, Mr Pilgrim, and that last statement you made is very good, and we join you in acknowledging the work that your people have done.
Mr Pilgrim : Thank you.
Senator JACINTA COLLINS: Welcome, Mr Pilgrim. Can you refresh my memory as to what was occurring with your role, other than now acting Information Commissioner?
Mr Pilgrim : Do you mean the position of Privacy Commissioner under the bill?
Senator JACINTA COLLINS: Yes.
Mr Pilgrim : The bill proposes that the Privacy Commissioner be established as an independent statutory officer but sitting within the Human Rights Commission but not—
Senator JACINTA COLLINS: Ah, yes: you are the boy in the bubble!
Mr Pilgrim : Yes, as we discussed at that hearing. I would be sitting with the Human Rights Commission but not as a Human Rights Commissioner; I would be independent to the Human Rights Commission. I would have responsibility for the functions under the Privacy Act. However, the resources and staff would be supplied to me through the Human Rights Commission.
Senator JACINTA COLLINS: And this is once this FOI bill is resolved, is it?
Mr Pilgrim : Yes—should the bill pass the Senate; that is correct.
Senator JACINTA COLLINS: What happens in the meantime? Do you stay—
Mr Pilgrim : At the moment the OAIC—the Office of the Australian Information Commissioner—is continuing on until such time that there is legislation passed to disband it.
Senator JACINTA COLLINS: Where is your work base?
Mr Pilgrim : Our office is now solely based in Sydney.
Senator JACINTA COLLINS: And you are working from Sydney.
Mr Pilgrim : Yes. I have always worked from Sydney.
Senator JACINTA COLLINS: And Professor McMillan is still working from or based in Canberra?
Mr Pilgrim : As I said in my opening statement, he has been spending time in the Sydney office over a period of the first few weeks of the year, and he has a home based office here in Canberra as well.
Senator JACINTA COLLINS: Home based—I think it was kitchen based, if I recall correctly.
Mr Pilgrim : I cannot recall that, but he has a home office.
Senator JACINTA COLLINS: It led me to wonder whether he has a Thermomix! He would be very efficient at home. The evidence we received in the last round of estimates indicated that the government was not looking at re-funding the Office of the Information Commissioner, as the status of the bill would be resolved in February this year. So, further to your comments about late last year, to this point in time—including what sittings the Senate has had in February—it still remains unresolved. When will the government be bringing the bill on for debate in the Senate, Minister?
Senator Brandis: That is a matter for the Manager of Government Business in the Senate, isn't it?
Senator JACINTA COLLINS: You are not aware of when it may be scheduled?
Senator Brandis: I am not aware of the date, no.
Senator JACINTA COLLINS: It seems that the government is not in a position to pass legislation any time immediately. I think last time we had a discussion about what discussions had occurred with the Attorney-General's Department about ongoing funding arrangements. Mr Pilgrim, can you update me on that from your end?
Mr Pilgrim : We are having continuing discussions with the Attorney-General's Department on what funding arrangements may need to be made, and the department is exploring those options and would be best placed to answer the question in any more detail.
Senator JACINTA COLLINS: Yes, because I think that is what Mr Minogue essentially told us on the last occasion, except I think he was optimistic about February. I was less so. Can you give me an update, Mr Minogue, about the Attorney-General's Department's understanding of the ongoing funding arrangements?
Mr Minogue : At the moment the funding that has been made available by government in the budget for the continuing privacy functions has been appropriated to the Human Rights Commission. That money is still to be made available for those continuing functions. So, it is a question of financial mechanics as to whether it is reappropriated back to the Office of the Information Commissioner—which, on the books as at today, because the bill has not passed, remains—or whether it is some other arrangement between the Human Rights Commission and the OAIC for the provision of that funding. But essentially the resourcing that has been appropriated by government for the functions of the OAIC will be made available—are available—for the OAIC to continue its functions. The precise mechanics about how that is returned or how it reflects that fact that the organisation, the entity, still exists is still to be finalised and published by government. But there is no risk to the ongoing funding for those functions, in line with the budget decision government took.
Senator JACINTA COLLINS: Are we talking about this fiscal year?
Mr Minogue : Yes.
Senator JACINTA COLLINS: So, since July of last year, there has as yet been no reappropriation and the department is still exploring the mechanics of how such might occur.
Mr Minogue : There has been no further budget cycle that would allow that to be affected, given that the government's intention is still that the bill be brought on at a time that the government chooses or decides. The bill still reflects government's policy. If the bill passes, then the budget decision reflects the will of parliament. If the bill does not pass, then an alternative arrangement would need to be found. But that crossroad has not been crossed yet. The bill still reflects the government's position.
Senator JACINTA COLLINS: I understand that the bill still reflects the government's position, but these functions are being carried out under the existing legislative position under funding arrangements that have remained unresolved now for around eight months.
Mr Minogue : That timing might be right, but the uncertainty surrounding the future of the bill has not been unresolved for that long.
Senator JACINTA COLLINS: Sorry—the uncertainty has not been unresolved?
Mr Minogue : The time period that would be relevant is the time from when there was a clear indication that the bill was or was not going to pass parliament. If the bill is not going to pass parliament then yes, government should act to conclusively reflect that new reality. If the bill is going to pass, it would be premature to appropriate moneys to one organisation and then back to another and then back to another as the bill goes through parliament. So, for the moment, it is unresolved only because the future of the bill is unresolved.
Senator Brandis: And of course if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed.
Senator JACINTA COLLINS: Well, if the government did not pre-empt the will of the Senate then it would not be a problem.
Senator Brandis: I think you have it around the wrong way.
Senator JACINTA COLLINS: I am sure you do think that. That is no surprise to me.
Senator Brandis: Yes, I do, and it is no surprise to me that you have rudely interrupted me once again. As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon.
Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner?
Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that.
Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything.
Senator Brandis: Yes, Senator Collins. Move on to your next question.
Senator JACINTA COLLINS: I am just looking at the remainder of the questions I had for Mr McMillan. I was not aware that he was on leave, so, thank you for that explanation, Mr Pilgrim. Can you tell me what the impact has been of these uncertain funding arrangements in terms of your capacity to meet the functions?
Mr Pilgrim : As I said, we have moved to having only one site, in the Sydney building, and we are looking at processes to try to streamline the FOI functions we are undertaking by triaging Information Commissioner reviews that come in. For example, we are assessing those matters to see whether there are any that we can deal with quite quickly, whether that be over the phone with the applicant or with the respondent organisation. Otherwise, we are looking at the larger, more voluminous and more complex matters and we are working with the applicants to refer those on to the AAT.
Senator JACINTA COLLINS: Are you able to fulfil your ongoing statutory obligations without further funding or staffing arrangements being settled?
Mr Pilgrim : At the moment, as I said, we have had to streamline the process with the use of the power we have under the FOI Act to move more of the more complex and voluminous matters that we do not believe we would be able to get to in a timely fashion onto the AAT by way of assisting the applicants.
Senator JACINTA COLLINS: But for how long is that streamlining sustainable?
Mr Pilgrim : At the moment we are waiting to see what happens with the bill, but we are working on the basis that that process will go on until such time as there is resolution around the bill.
Senator JACINTA COLLINS: So, you do not have any confidence in Mr Minogue's missions around finding mechanics or reappropriation of the funds that went to the Human Rights Commission?
Mr Pilgrim : No, that is not what I am saying. We are working constructively with the department in terms of finding out those mechanisms to see if we do reach a point where we need to have those appropriations returned to the OAIC.
Senator JACINTA COLLINS: Well, that is why I am asking how long the current arrangements are sustainable for.
Mr Pilgrim : At the moment we are working on the basis that we have, if I can put it this way, cash reserves to be able to maintain the status quo as we have it now, through for some months to come.
Senator JACINTA COLLINS: Mr McMillan referred I think on the last occasion to some cash reserves.
Mr Pilgrim : That is correct.
Senator JACINTA COLLINS: So, what you are telling us is that you still have some cash reserves to access.
Mr Pilgrim : Yes.
Senator JACINTA COLLINS: And I am not going to pressure you, but you are not providing any specific sense of how long that position is sustainable for.
Mr Pilgrim : We are going to be reviewing that situation once we get more information on what is likely to happen with the bill, but I am confident that we can go on for a number of months more on the cash reserves that we do have.
Senator Brandis: Senator Collins, this matter lies entirely in your hands. It is the opposition that is declining to pass the bill. The government wishes to pass the bill. If the bill were to be passed, this problem would not exist. But the government does not have a majority in the Senate. If you, Senator Collins, as the shadow Attorney-General's spokesperson in the Senate, were to give an indication that the opposition will pass the bill, this problem would disappear immediately. A solution lies entirely and exclusively in your hands.
Senator JACINTA COLLINS: Oh, Senator Brandis, if politics were only that simple!
Senator Brandis: It sounds pretty simple to me, Senator Collins. If you pass the bill, it will be passed.
Senator JACINTA COLLINS: Oh, dear. If you give me what I want, everything will be fine! Mr Pilgrim, will the cash reserves last you until the next budget?
Mr Pilgrim : I would like to take that on notice.
Senator JACINTA COLLINS: Sure.
Mr Minogue : It might assist, if I just mention—and I might have misunderstood the import of what you are saying, Senator—that it is not that the OAIC is only operating on the available cash reserves. Money that is appropriated to the Human Rights Commission for OAIC purposes remain available—and that was in the order of $19 million over four years. I just did not want there to be a misunderstanding that it was only the underspend or the reserves that were available to the OAIC at the moment.
CHAIR: Thanks for clarifying that, Mr Minogue.
Senator JACINTA COLLINS: Mr Minogue, you referred to re-appropriations and sorting through proper mechanics. What you are saying to me is that some of the funds that are currently available, other than the cash reserves, are already being utilised by the office of information commissioner, and there are other funds that you need to look for a mechanism or re-appropriation. Is that correct?
Mr Minogue : Forgive me if I have made this messier that it needed to be.
Senator JACINTA COLLINS: It is all right. It is after 10 o'clock.
CHAIR: I may not forgive you.
Mr Minogue : It is always dangerous to volunteer. I know that.
CHAIR: Yes.
Mr Minogue : The moneys that the government decided, in the budget, were to be made available to the office of the information commissioner for its ongoing functions were in the order of $19 million over four years. Because of the government's decision that the OAIC would be restructured and the Privacy Commissioner would move as an independent statutory officer to the Human Rights Commission, those moneys were appropriated not to the OAIC, but to the Human Rights Commission. Given that the bill has not passed, those monies are still in the appropriation of the Human Rights Commission, but only for OAIC purposes. The mechanics that I was talking about was that, if the bill passes, that remains a proper reflection of the government decision. If the bill does not pass, then a decision will need to be made by the government not to find new money for the OAIC, but to recognise the fact that under the first proposition the OAIC would no longer continue. Under the second alternative, if the bill is defeated, the OAIC does continue, so those monies would need to be re-appropriated back to the entity that will continue, whereas the decision of government was that it be initially appropriated to an organisation called the Human Rights Commission because the OAIC, in its current form, would not continue.
Senator JACINTA COLLINS: But are there other funds, other than the cash reserves, currently available to the office of the information commissioner?
Mr Minogue : Yes. The money that is made available to the OAIC for this financial year, which is probably in the order of some $5 million, remains available to the OAIC.
Senator JACINTA COLLINS: Okay. Thank you.
Senator LEYONHJELM: Mr Pilgrim, what is the staffing situation in relation to the OAIC resources? How many people are working on FOI in the office?
Mr Pilgrim : We have approximately nine staff working on FOI matters.
Senator LEYONHJELM: How does that compare with 12 months ago?
Mr Pilgrim : Twelve months ago we had approximately 20.
Senator LEYONHJELM: And the decline is attributable to the anticipated restructure and abolition of the function?
Mr Pilgrim : That is correct. We took steps last year, on the basis that the government's intention was for the office to wind up by 31 December, and worked with our staff to make sure that we could place those staff in other positions where we could assist them in that process.
Senator LEYONHJELM: How readily would you be able to get the office back on foot at short notice?
Mr Pilgrim : The office is already undertaking some, although limited, FOI functions. It is a question I would have to take on notice, but the office is already undertaking certain functions. We already have the systems in place for putting that work into our complaints management system. Those sorts of structures already exist.
Senator LEYONHJELM: To what date is Professor McMillan officially contracted?
Mr Pilgrim : Professor McMillan was appointed for a five-year term. That term expires in November of this year.
Senator LEYONHJELM: Am I right in understanding that he is moving to the AAT himself?
Mr Pilgrim : No, that is not correct. The former Freedom of Information Commissioner, Dr James Popple, moved to the AAT on 1 January this year.
Senator LEYONHJELM: Okay, I had the wrong person. You are probably the wrong person to ask this of, but it strikes me that there is the potential for that gentleman to be hearing appeals against his own decisions. How would that be dealt with?
Mr Pilgrim : That would be a matter for the AAT.
Senator Brandis: That could not really happen.
Senator LEYONHJELM: He would recuse himself? How would it work?
Senator Brandis: This is hypothetical of course, but you would expect that whoever arranged the AAT lists would ensure that that matter did not come onto his docket.
CHAIR: In an area like Townsville, when barristers are appointed to the bench, they of course do not deal with cases that they had an interest in when they were barristers.
Senator LEYONHJELM: I assumed that was the case but I just wanted confirmation.
