Standalone FOI Commissioner to be appointed

A standalone Freedom of Information Commissioner will be appointed to work alongside the Privacy Commissioner, with the government to finally meet its legislative requirements in separating the positions.

Angelene Falk currently serves as both the Information Commissioner and the Privacy Commissioner, covering the Freedom of Information Act and all privacy-related issues.

In the 2021-22 federal budget, handed down by Treasurer Josh Frydenberg on Tuesday night, the government revealed it would be split this role and have two separate commissioners, something that is already required under the legislation.

The government has allocated $1 million per year for the new role, with the FOI Commissioner to sit within the Office of the Australian Information Commissioner (OAIC).

The OAIC has also been provided $3.524 million in 2021-22 and the following year under the government’s new Digital Economy Strategy.

But despite the cash boost and new commissioner, the OAIC is still facing a significant funding cut in the coming years, with no new funding package announced in the budget to take the place of the extra funding provided for privacy complaints, which comes to an end next year.

The OAIC’s funding for the next financial year is at $28.487 million, up from $26.405 million in the current year, with its staffing level also increasing from 120 to 147.

But it is still racing toward a funding cliff, unless the Office is able to negotiate a new deal with the federal government. This will likely be part of the major review of the Privacy Act that is currently underway, with a number of submissions, including from the OAIC itself, calling for additional funding to cover a significant uptick in workload.

“The OAIC must be appropriately resourced to properly carry out its statutory functions and use the full suite of regulatory powers effectively, including enforcement through the courts, which can be costly and resource intensive,” Ms Falk said in a submission to government.

The OAIC was also branded “weak” and “dysfunctional” in other submissions to the Privacy Act review.

The federal budget also handed the Australian National Audit Office (ANAO) a funding boost, with $61.5 million provided over the next four years. This would enable the ANAO to “address rising costs due to more complex financial data and records management arrangements, new audit controls relating to COVID-19 measures and the need to enhance IT cybersecurity migration”.

The ANAO is considering launching audits into the government’s COVIDSafe contact tracing app and further inquiries into public sector cybersecurity. It is also currently scrutinising the administration of the research and development tax incentive.

Elsewhere in the budget, $9.6 million has been allocated over four years to assist with the exchange of data between Australia and the US on the investigation of “serious crimes”. This exchange would take place under a CLOUD Act agreement, which is yet to be signed by the two countries.

International Production Orders legislation, which would facilitate such a deal, has been in Parliament for more than a year, and has been the subject of a Parliamentary Joint Committee on Intelligence and Security for more than a year.

Initial negotiations between the two countries took place while Donald Trump was still in power in the US.

With $1.5 million allocated in the 2021-22 financial year, the Australian government appears set to restart its effort to pass the bill, and to secure a CLOUD Act deal with the Biden administration.

The Australian Security Intelligence Organisation (ASIO) has received a huge funding boost as part of the budget, with $1.3 billion to be provided over 10 years. This will assist ASIO to “better leverage Australian industry to help respond to challenges posed by rapid technological change” and “further boost its ability to protect Australia and Australians from threats to our security”, the government said.

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