Where the government went wrong initially was in its political judgment,in underestimating the readiness of the Senate crossbench to hold up key elements of its program. It was buoyed by its decisive election victory and then by the enthusiasm of its radical supporters in the national commission of audit and the business community. For his first budget,Treasurer Joe Hockey planned a decisive blitzkrieg that would fundamentally redraw the structure and functions of the public service. A year later,such confidence appears as unwarranted hubris,but it was not unreasonable at the time.
In relation to the OAIC,the key issue is the propriety of the government's actions once Senate opposition to abolition became clear. On one view,the correct response should have been to respect the will of Parliament and to maintain the office in its then current form as envisaged in the original legislation. The office might have been asked to absorb some cuts,along with everyone else,but should at least have been given sufficient funding to employ three commissioners and perform its key functions effectively,as required by law. In the government's view,however,the level of reduced funding,combined with other arrangements,is sufficient to allow all its functions to be carried out,even if at a distinctively less effective level than previously. The government's case rests on a strict,and distinctly"tricky",interpretation of the law. It will not convince supporters of the former OAIC.
The legal niceties can be left to lawyers. The political reality is that the OAIC has been drastically cut back. How serious are the practical effects? With respect to privacy concerns,the government seems prepared to allow the privacy's commissioner's work to continue much as before. In relation to hearing appeals against FOI decisions,the skeleton staff has made reasonable progress this year in reducing the backlog. It remains to be seen whether this throughput can continue with the departure of McMillan and with only the Privacy Commissioner as the sole commissioner entitled to decide appeals.
More significant is what happens to the information commissioner's function to report generally on government policies in relation to information,including the disclosure and accessibility of government information. This function casts the commissioner in the role of public champion of open government,a role which McMillan performed,for example,by monitoring agencies'administration of FOI and generally advocating a more proactive approach to disclosing information. The claim that the Attorney-General's Department can adequately cover for this function is disingenuous. Expecting the attorney-general to act as a champion of open government is asking the fox to act as the defender of hens.
FOI will certainly need an independent advocate in the immediate future. Powerful enemies are circling. The government has still to respond fully to a review of FOI conducted for the OAIC by Allan Hawke in 2013. Both the Public Service Commissioner,John Lloyd,and the Treasury secretary,John Fraser,have publicly bemoaned the effects of FOI on the quality of written advice. At the recent Australia and New Zealand School of Government conference,the annual gathering of public sector insiders,former Immigration Department secretary Andrew Metcalfe is said to have made similar comments,reporting that many colleagues agreed with him. ANZSOG dean Professor Gary Banks,a former Productivity Commission chairman,added his support.
Expecting the attorney-general to act as a champion of open government is asking the fox to act as the defender of hens.
The criticisms carry weight,particularly in relation to the reluctance of public servants to put frank advice in writing. This unintended (but not unpredicted) consequence of FOI may need to be addressed and the legislation adjusted. At the same time,the genuine advances in government transparency ought to be strongly defended. It is here that the absence of an effective information commissioner will be most keenly felt.
Richard Mulgan is an emeritus professor with the Crawford School of Public Policy at the Australian National University.richard.mulgan@anu.edu.au