Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016


Debate resumed from 13 September 2016; motion of Mr DALIDAKIS (Minister for Small Business, Innovation and Trade).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I am pleased to rise this afternoon to speak on the long-awaited Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016. This is a troubling piece of legislation. Ostensibly the government has introduced this legislation to put in place what it regards as an improved framework for the operation of the freedom of information system in Victoria, and indeed there are some nominal changes to the way in which that FOI system operates, which the government has held out as the reason and the rationale for this piece of legislation. But it also seeks to put in place significant structural changes to the way in which the office of the FOI commissioner operates and the way in which the office of the commissioner for privacy and data protection operates. It is these more significant structural changes which, frankly, greatly overshadow the changes to the FOI scheme, which the government has trumpeted as the reason for this legislation, that are of concern to the Liberal-Nationals members of the house.

I will just quickly run through the provisions of the bill. The bill amends, as I said, the Freedom of Information Act 1982 to abolish the existing office of the Freedom of Information Commissioner and to establish a new office of the Victorian Information Commissioner. It reduces the default time frames for responding to FOI requests from 45 days to 30 days, which is one of the things that has been held up as a great reform of this legislation, and it provides for the appointment of the new information commissioner and a deputy commissioner, being the FOI commissioner, and a second deputy commissioner, being the public access deputy commissioner. It creates powers for the information commissioner with respect to FOI reviews of decisions made by departments and ministers and decisions made on the grounds of cabinet in confidence. It provides some amendments to the Privacy and Data Protection Act 2014 with respect to abolishing the existing Office of the Privacy Commissioner, which I will come back to, and it also makes some amendments with respect to the Victorian Inspectorate Act 2011, which are relatively minor in the context of the key changes to this legislation.

It is the structural issues or the proposal for structural change in this bill that is of significant concern to the opposition parties. What the bill seeks to do is to abolish the existing Freedom of Information Commissioner, which was established in around 2012 by the previous coalition government, and it seeks to abolish the existing office of the commissioner for privacy and data protection, which was only put in place in 2014, and implement a new structure under a single information commissioner, with the two existing FOI and privacy and data protection roles undertaken by deputy commissioners responsible to the overarching commissioner.

We have concerns with this model, for a number of reasons. Firstly, this model has failed in every other jurisdiction in Australia that it has been implemented in. It has been implemented in New South Wales, and it has failed; it has been implemented in Queensland, and it failed; and it was implemented in the commonwealth jurisdiction and has also been a failure. So there is no precedent in an Australian jurisdiction for a model which brings together an FOI function with a privacy and data protection function in the one statutory office under the one statutory commissioner and has it work successfully. There is now substantial material in the public domain about the failure of that model in other jurisdictions — the inherent contradiction between an FOI function, which of course relates to the release of information, and a privacy and data protection function, which relates inherently to the protection of government-held data from inappropriate release. We are also concerned that the government has not provided any rationale, certainly in the minister's second-reading speech or in the public discourse around this legislation, as to why it is now seeking to adopt a model which has failed on a number of occasions elsewhere in Australia.

Equally, the point needs to be made that both the existing FOI commissioner model and the existing privacy and data protection commissioner model are very new institutions in Victoria. One is approximately five years old, being the FOI commissioner model — maybe a bit less — and the privacy and data protection commissioner, as I said, was only put in place late in 2014. It is barely two years old; in fact it was less than two years old at the time this legislation was brought into Parliament.

So the question has to be asked: why? Why is the government seeking to, via this legislation, summarily terminate the appointment of two statutory officers, being the FOI commissioner and the privacy commissioner, who are, by this legislation, simply terminated — cease to hold office — if this legislation passes? And why is a new structure being put in place which has failed elsewhere before the existing Victorian officers have even had the opportunity to establish themselves and consolidate their operations?

We saw in the very early days of this government a move against the first FOI commissioner, Lynne Bertolini. We saw Ms Bertolini, who was an appointee of the previous coalition government, pushed from office. There was an inquiry undertaken at the behest of the minister, for the Secretary of the Department of Premier and Cabinet (DPC), Chris Eccles, which led to Ms Bertolini leaving office. At the time that inquiry was undertaken concerns were raised about the fact that we had DPC, as the senior executive department, commissioning an inquiry into an independent officer. We subsequently saw Ms Bertolini's departure from that position.

Now we have what seems to be a similar push by this government to remove the other statutory officer that was appointed by the previous coalition government, in this case Mr David Watts, the commissioner for privacy and data protection. It is an extraordinary model where the government seeks to establish a new structure — taking the two existing commissioners and combining them under a single overarching commissioner, a model which provides for the transfer of staff from the existing separate offices to the new combined entity, provides for the transfer of assets from the existing entities to the new entity and provides for the transfer of casework from the existing entities to the new entity — yet summarily terminates the appointment of the two chief officers: the FOI commissioner and the privacy commissioner.

We have seen how the relationship has developed between the government and the privacy and data protection commissioner over the last two years. It is not unreasonable to believe that the purpose of this legislation is specifically to get at the current office-holder in that role because there is nothing in the minister's second-reading speech that supports the structural changes that this legislation is seeking to implement. That concern is reinforced when consideration is given to how this legislation came about, what approach the government took in the development of this bill, what policy considerations were factored into the development of this bill and the way in which consultation was undertaken.

Consideration of this bill has been protracted. It is legislation that was introduced to the Parliament in the middle of last year. It passed through the other place in the middle of last year and came to this house and has sat on the notice paper for an extended period of time. As part of preparing for the Parliament's consideration of this legislation I undertook some broad consultations with institutions like the Law Institute of Victoria, which is quite common when considering legal bills and bills which go to the structure of statutory offices in Victoria. I also undertook consultation with the FOI commissioner and the commissioner for privacy and data protection.

I have to say that I was astounded, having sought feedback and the views of those two office-holders, to receive back from the commissioner for privacy and data protection a response to my request for his input in which he indicated that he was not consulted by the government in the development of this legislation. Despite being a key statutory independent office-holder whose office was to be abolished by this legislation, whose appointment was to be terminated by this legislation and whose functions were to be subsumed into a combined model, which on the face of it has an inherent conflict in a policy sense, he was not consulted.

Mr Watts, in his extensive response to me, which I intend to consider in some detail if this legislation reaches the committee stage of the house's consideration — there are a number of matters I will seek to raise directly with the minister — made it very clear that he and his office were bypassed in the development of this legislation. The legislation as presented to Parliament was presented to him and his office as a fait accompli and his views were not sought. I find it extraordinary that if the government were committed to reform in the area of FOI and data protection, they would not consult with the key officer who has responsibility for those functions.

When the Office of the Commissioner for Privacy and Data Protection was established Mr Watts was engaged by the previous government on the basis of his substantial international reputation in the area of privacy and data protection. Through the period leading up to the establishment of that office and the passage of that legislation establishing the office, in 2014 I worked extensively with Mr Watts, as did my ministerial office and as did the then Attorney-General, as we were developing a policy framework around information and data release from a Treasury perspective and the Attorney-General was developing his framework on privacy and data protection. It became very apparent very quickly, through those discussions and through that policy work which was undertaken by my office and the Attorney-General's office, that Mr Watts had extensive experience and knowledge and a reputation in the area of privacy and data protection, so it is unfathomable that this government would not consult him on the development of this legislation which completely restructures his existing statutory office.

What is also not clear from the minister's second-reading speech is why the government is seeking to make these structural changes now. The existing office is a new office; it is barely two years old. It is occupied by the first FOI commissioner to hold that position, and at the time the legislation came he in was not even halfway through his initial appointment as commissioner. In the case of the FOI commissioner, he has barely passed the halfway mark.

Why would the government seek to completely restructure those offices and terminate the existing office-holders in a model which was new and which was in the process of being bedded down and consolidated? Why that process has not been allowed to occur is unclear, and the government has at no time sought to explain why it is up-ending what is a very new structure to put in place this alternative structure. We are very concerned about the way in which the government is going about this. I will quote extensively from Mr Watts's advice back to me on the development of this legislation if and when we get the opportunity to consider this in committee with the minister.

We are also concerned about the way in which the new office is to be structured. It is the coalition's view that the model that is proposed, if it is to go forward, should be amended from that which we currently see in the bill. The amendments in particular relate to the independence of what would be the two deputy commissioners, with an FOI function and a privacy and data protection function, both of whom would be subordinate to the overarching information commissioner and both of whom have, under the proposed legislation, weaker safeguards of their independence than the current statutory office-holders. Again, the government has made no attempt to explain why they are weakening the independence of those two officers as opposed to the current model.

Currently for both the current FOI commissioner model and the privacy and data protection commissioner model removal from office of those commissioners is only possible by the Governor in Council following the passage of a resolution of both houses of Parliament. It is a very robust framework. The government of the day cannot intervene and remove either the FOI commissioner or the privacy and data commissioner without both houses of Parliament agreeing to it. Yes, they can suspend them for misconduct, but if they wish to remove them from office, they need to make a case to the Parliament. It is only with the passage of a resolution of both houses of Parliament that the Governor in Council can then act to terminate the appointment.

Under the model proposed by the government, Parliament will not have a role in the removal of either of the statutory officers, and they can be removed at will by the Governor in Council acting on the recommendation of the government. It is a substantially lower threshold and greatly reduces the independence that those current office-holders enjoy. The question needs to be asked: why? Why is the government seeking to remove that independence — an independence which is ensured by the fact that the current office-holders cannot easily be removed purely by executive action? Why are they seeking under this new model to provide that degree of protection to the overarching commissioner but not provide that protection to the two deputy commissioners, who will actually be the operational commissioners carrying out the current functions? The figurehead gets the protection. The two deputy commissioners who will be at the coalface in determining matters which may or may not be in favour of the government will have the protections which currently exist removed in relation to their appointments. That is something that if the bill reaches a committee stage we will be seeking to change by way of amendment.

One of the other aspects we will seek to change is the summary termination of the FOI commissioner and the commissioner for privacy and data protection. These offices were established between 2011 and 2014 with a very clear intent that they operate independently of government. For all intents and purposes they sat aside from government, with the virtual status of an independent officer of the Parliament. They were in many respects watchdog officers in the same way as the Ombudsman and the Auditor-General are, and they were afforded similar protections by virtue of the fact that they could not be terminated without the agreement of Parliament, as I indicated before. In the conduct of their statutory functions they were not subject to the direction of the portfolio minister, which currently is the Special Minister of State.

It is extraordinary that in setting up this new model the government is taking the opportunity to terminate those two office-holders, who are otherwise protected in their functions from termination by the government. Every other staff member that is associated with the FOI commissioner's office or the privacy commissioner's office will be transferred to the new entity that is going to be created, but the two statutory office-holders that actually exercise the statutory functions in the current model are to be terminated, and no reason has been given by the government for this. We have seen what the government did with the first FOI commissioner, Ms Bertolini, and it is apparent from the evident tension that exists between the government and the current inaugural privacy commissioner that they are using this legislation to seek to do the same. We believe that is unacceptable. It is unacceptable for this government to terminate two statutory officers because it finds dealing with one inconvenient.

We have seen this before from this government. We saw it with the Country Fire Authority (CFA) board, which was sacked because it did not bend to the Premier's will. We have seen it with the chief executive officer of the CFA. Now we are apparently seeing it with the privacy and data protection commissioner, who also has not been compliant with the government's will and therefore seemingly is to be terminated by this legislation as a convenient by-product of putting this new structure in place. For that reason, if the bill reaches a committee stage, we will be seeking to amend the bill to preserve the existing FOI commissioner and privacy and data protection commissioner and to provide that the existing office-holders are deemed to be the deputy office-holders in the respective FOI and privacy functions for the duration of their current appointments. Therefore they too would transfer to the new structure as the deputies in the same way as existing staff and assets transfer to the new structure.

The other area we will seek amendments on goes to the issue of the operation of the FOI system. The argument put by the government for this legislation is that this is part of the reform it is driving, particularly in FOI. In reality there is very little change to the FOI framework in this legislation. It is largely structural and it is largely about nobbling the two office-holders, in particular the privacy commissioner. One of the changes this bill does purport to introduce is to reduce the time frame for consideration of an FOI request from 45 days to 30 days. However, in providing for that reduction from 45 days to 30 days the legislation then provides that if an agency is required to undertake consultation with another agency, it is entitled to 45 days. In effect what we have is the existing 45-day time frame being preserved, because most FOI requests — I imagine a vast majority of FOI requests — will of necessity entail consultation with other agencies and therefore the default time frame will increase from 30 days to 45 days if the responsible agency desires it.

A further amendment we will seek will be to strike out the as-of-right capacity for an agency to increase the time frame for a response from 30 to 45 days when consultation is required. There is a proposed provision in the bill which allows for an extension of 30 days by agreement with the FOI applicant, and we believe that that is more than adequate as a mechanism when consultation is required which may exceed the proposed default 30-day time frame. We believe that if the government says it is changing the default time frame for an FOI response from 45 to 30 days, then that is what it should do — not use a backdoor mechanism to preserve a 45-day window.

This piece of legislation is concerning. There is the lack of consultation undertaken with the existing office-holders, the fact that without explanation the government is seeking to implement a model which has failed in jurisdiction after jurisdiction around Australia and the fact that it is also seeking to do this without providing any explanation as to how the existing framework, which is only a couple of years old, is defective. We believe that these issues need to be ventilated before this house proceeds with the consideration of this legislation. So it is my intention when this bill reaches the end of the second-reading stage to seek a referral of the bill to the legal and social issues committee of the Legislative Council to allow it to undertake a short inquiry into this bill, to conduct public hearings at which it can call on the privacy commissioner, the FOI commissioner and the Law Institute of Victoria — which is also an interested party in this and which has given extensive commentary on the proposed legislation — to give evidence, to test this proposed model that is being proposed for Victoria versus the way in which it is operated in other jurisdictions in Australia and to give an opportunity to the minister and the Department of Premier and Cabinet to explain why a model which has only been in place for a couple of years needs to be replaced with a new model that has failed in other jurisdictions and to outline the policy reasons why these changes are being made.

We believe that with this legislation, given the uncertainty of the policy basis behind it and given the evidence that policy consultation was not undertaken with the statutory office holders whose roles are to be abolished by the legislation, having a short, sharp inquiry through the Legislative Council's legal and social issues committee is an appropriate next step to get these policy issues considered before the finality of the legislation is dealt with. So the coalition will be reserving its final position on this legislation. We do seek the house's support for a short inquiry and a public hearing session through the legal and social issues committee. Following that we will be seeking the house's consideration of the amendments that we seek to bring to this legislation.

The way in which this legislation has come together is troubling. The implications it has for statutory offices in this state, given the history we have seen with other government entities in the state, such as the Country Fire Authority, is also troubling. Considerable explanation and rationale will need to be provided by the government in respect of a range of the changes it is seeking to make through this legislation before the coalition can provide any support for it.
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