Office of the Information Commissioner attend Estimates

March 1, 2025 |


Senate Estimates is an annual event. For Governments it is a mandatory evil. For oppositions it promises to reveal a cornucopia of a information to embarrass the government and burnish its credentials. For the agencies, in particular the public servants who front the various Estimates Committees, it is a burden to be carried as part of the job. This year the Information Commissioner’s attendance before the Legal and Constitutional Affairs Legislation Committee proved to be no different. The Commissioner’s opening statement was the usual anodyne, nothing to see here, statement providing.

With the chair’s leave I take this opportunity to acknowledge the committee’s role and in doing so provide a brief opening statement outlining the important work of the Office of the Australian Information Commissioner (OAIC).

I appear today with the assistance of the FOI Commissioner Ms Toni Pirani and with the chair’s leave the Privacy Commissioner Ms Carly Kind appearing via link and Executive General Manager, Information Rights Ms Ashleigh McDonald.

Supported by our new organisational structure we are better positioned to operate as a contemporary and proactive regulator. Some of our recent initiatives and outcomes demonstrate our future direction. We have:

    • commenced preliminary inquiries into the privacy impacts of connected vehicles
    • commenced the development of a Children’s Online Privacy Code
    • developed a public facing dashboard to ensure that agency freedom of information (FOI) data is reported and presented more effectively
    • We will shortly deliver a report examining the use of messaging apps by Australian government agencies
    • We are building our strategic intelligence capabilities.

To deliver a proactive and contemporary regulatory approach to benefit the Australian community, agencies and industry alike, we will also focus on building staffing capabilities through an investment in new ways of working and professional development. Within our budgetary parameters, our technology and systems will also be a focus to support our new direction.

However, we are also mindful to deal with our core case management responsibilities and reduce our backlog in both FOI and privacy cases. Our resources are challenged by a 25% increase in FOI Information Commissioner review (IC review) applications compared to the same period last year. This is against a backdrop of an increase in FOI IC review applications over the last 5 years that is estimated to double the number of FOI IC review applications received in 2019–20. We also face an overall growth in privacy case work and increasing complexity in our case work arising from digital services and emerging technologies. This has a particular impact on our privacy case work.

Our enforcement capabilities have been assisted by an increase of funding in recognition of the complexities of enforcement. Similarly designated funding has been provided to the OAIC to develop the Children’s Online Privacy Code and guidance regarding the social media age limit.

Our appearance and preparatory papers are informed by data as at 15 January 2025.  However, to assist the committee, as at 23 February 2025 the OAIC 2024–25 case statistics are as follows:

    • 1,279 FOI review applications were received and 1,494 finalised.
    • 196 FOI complaints were received and 216 finalised.
    • 1,966 privacy complaints were received and 1,687 finalised.

During this period, we also finalised a number of complex privacy matters that have delivered a strong enforcement message and importantly established our expectations of the regulated community. In doing so, we are upholding the rights of privacy and information access enshrined in statute by the Australian Parliament and better serving the values and expectations of the Australian community.

I wish to acknowledge the significant work and expertise of the OAIC leadership in taking forward this major change program and recognise with gratitude OAIC staff for their dedication and commitment as we secure the fundamental human rights of privacy and information access in an increasingly complex environment.

The hearing before the Estimates Committee focused on the reduction in staffing in the office from 200 to 138 staff in the Office.  A 23% reduction in staff.  Also of interest is the Privacy Commissioner’s admission that the the findings of the Property Lovers determination is not being complied with.  In short, the behaviour complained of is continuing.  The Privacy Commissioner is investigating what to do next.  

An understaffed office is bad news for effective regulation.  That has been a chronic problem for this office.  Fortunately there will be a statutory tort as of June 2025 so in many cases individuals will not need to rely on the Commissioner taking up an investigation from a member of the public.

The Transcript provides:

CHAIR: With 20 minutes to go in our hearing, we’re going to politely and apologetically, dismiss the Australian Human Rights Commission. We won’t get to them this evening. We thank them for their time and for travelling. We do have questions for them, but we won’t have time to put them. We thank them for their ongoing work, particularly in the current environment. I know they’re working very hard. So thank you very much.

Welcome, commissioners. Do you have an opening statement you’d like to table?

Ms Tydd : I do have a very brief opening statement and I’m happy to table that.

CHAIR: Thank you very much. That will be circulated to senator so they can read from that when they have it in front of them. In the meantime, I’ll pass the call to Senator Scarr.

  Senator SCARR: Commissioner, how many staff have left the OAIC since August last year?

Ms Tydd : I don’t think I could speak with authority from the date of August, but I can give you the very high-level numbers of staffing pre and post our organisational redesign.

  Senator SCARR: Can you give me the dates for the organisational redesign, so I can calibrate that with my August date.

Ms Tydd : Yes. That was finalised in mid-November, about 17 November. The organisational redesign responded to our significant budgetary situation, in which we would be operating at a deficit. Action was taken around that. At the time, in July, we had an FTE of just over 200. Our organisational redesign that allowed us to operate within our budgetary parameters—

  Senator SCARR: Sorry; it’s late. I’ve got to get these numbers right. In July your FTE was just over 200?

Ms Tydd : Correct. And our ASL cap came down to 173. We knew that within our budgetary parameters we’d need to operate at around 165. We didn’t purely look at staffing levels in relation to meeting our budgetary parameters; we looked at a range of measures. They included external supply costs. Legal costs were something that we focused on as well. So, yes, we were required to reduce staffing in response to our revised budgetary parameters, and that process was completed around mid-November.

  Senator SCARR: Okay. What were the FTE numbers as at mid-November, when you completed that process?

Ms Tydd : There probably was still some lag. I’d say it would be about 175. I’ll see if I have any dates that will help you further. I can tell you that as at 18 December, as we were still working through that process, our staffing level was 175.

  Senator SCARR: Do you have the data as at today or the most recent data as at the end of the month? Do you have any most recent data?

Ms Tydd : As at 29 January, it was 138.4.

  Senator SCARR: So you went from 175 as at 18 December—that was the figure you gave?—

Ms Tydd : Correct.

  Senator SCARR: to 138.4 as at 29 January?

Ms Tydd : That’s correct, with a headcount of 156.

  Senator SCARR: Okay, so you’ve got part-time—

  Senator SHOEBRIDGE: So as we don’t have to traverse across this, do you mind if I ask: you’ve been talking FTE all the time through, so these have all been the same dataset of FTE, full-time equivalents?

Ms Tydd : Yes.

  Senator SCARR: So you went from—we’ll try and use the common terminology—FTE as at 18 December of 175 to FTE as at 29 January, which is only a month later, of 156. Is that correct?

Ms Tydd : The figure I have is 138.4.

  Senator SCARR: 175 to 138.4?

Ms Tydd : Yes. They’re the figures I have before me.

  Senator SCARR: That’s in the context where you said the target number would be about 165. Are we comparing apples and apples here—is that correct?

Ms Tydd : Yes.

  Senator SCARR: What’s the reason for the dramatic decrease from 175 to 138.4 over the Christmas period?

Ms Tydd : There are a range of reasons that led to that further reduction. We were very active in engaging with staff during the redesign process to say that we would need to curtail our staffing numbers. We assisted staff by placing them in other organisations or by way of temporary transfers that they might take and return to the OAIC. That did stimulate a higher attrition rate than we had anticipated on our modelling. That was coupled with a process of people taking leave for other reasons and a slowing of recruitment to positions within the structure during the December/January period. I would offer that, in relation to the voluntary redundancies, it was less than five per cent of our staffing profile, affecting eight people within the OAIC.

  Senator SCARR: You’re aware that this committee has previously conducted a review into the OAIC. Have you had an opportunity to read that report prepared by this committee?

Ms Tydd : Yes, I did read it.

  Senator SCARR: I’ve been contacted and concerns have been raised with me in relation to morale within the OAIC and the stress people are under in terms of their workloads—and I’m being quite open with you—and we’re all concerned about workplace health and safety. Do you currently have any staff on long-term leave for workplace stress or leave associated with any other psychosocial reasons?

Ms Tydd : I don’t have those figures before me, but, to the best of my knowledge, there have been no notifications of WHS in the last month. We report on this very regularly.

  Senator SCARR: Are there any proceeding that month?

Ms Tydd : I can’t speak to any before that period.

  Senator SCARR: Is there anyone with you who can perhaps give an indication as to whether there are any staff on long-term leave for workplace stress or a similar sort of issue?

Ms Tydd : I don’t believe there are long-term staff on long-term stress related leave at this point in time, but I’m happy to take that on notice.

  Senator SCARR: Can you take that on notice?

Ms Tydd : Of course.

  Senator SCARR: I understand that these questions are sensitive, but we’ve got an obligation to raise them after things are brought to our notice. How many staff are currently in acting roles?

Ms Tydd : It’s that number that I provided earlier, 138.4.

  Senator SCARR: In acting roles?

Ms Tydd : I’m sorry. I couldn’t tell you the precise number in acting roles throughout the OAIC at the moment, but I can tell you that about 87 per cent of our workforce are permanent appointments. Non-ongoing staff account for about 12 per cent and casual accounts for only one per cent.

  Senator SCARR: Can you take on notice how many are in acting roles? And given these fluctuations in FTEs and the process you’re going through, is there an abnormally high number of staff in acting roles? We always expect some staff in the usual course to be in acting roles. Given the context of OAIC, is there an abnormal number of staff in acting roles that you’re seeking to address? I think someone’s just brought up a piece of paper—

Ms Tydd : Thank you, Senator—

  Senator SCARR: which is probably totally unrelated to the question I’m asking! Does that piece of paper help?

Ms Tydd : I might start in addressing the question as I understand it. We are actively recruiting within the OAIC now, and that’s responsive to additional MYEFO allocation of funding to the OAIC that occurred in December. We’re recruiting actively, and that may stimulate further acting roles because of the relationship with the program of work that we’ve been delivered and ensuring that we have staff to deliver that as expeditiously as possible, so that could stimulate a higher number of acting positions.

  Senator SCARR: I do have some information about that recruiting process just from available information. I might give you all this information and then give you a chance to respond. In November last year you advertised for two SES band 2 roles, EGM regulatory action and EGM information rights, and I understand that in December you then advertised for head of legal. I understand you’re currently advertising for the general manager regulatory intelligence and strategy, which is SES band 1 level.

In addition to those senior roles, or what I’d characterise as senior roles, over the summer you also advertised for a number of other positions—approximately 10—and for five of them multiple roles, as I understand it, were available. The secretary provided us with some information through the estimates process showing that your staffing profile sits at around 162. You referred to 165; there’s no substantial difference there. But in the last three months you’ve advertised for roles that are approximately one-tenth, or maybe even a little bit higher, of your total workforce, which to me is quite extraordinary, in a situation where you’ve actually been decreasing the numbers. You’d expect that you’d be advertising for less, because you’re decreasing the numbers. What’s the reason for the huge recruitment activity?

Ms Tydd : There are a couple of factors at play. One is that the organisational restructure was responsive to the OAIC’s stated need to move towards a more enforcement based approach to its regulatory activities and to enhancing our ability to proactively deal with new and emerging harms. Likewise, it is to provide greater education and operate programs that uplift industry capability. That new direction has required additional capability in particular areas such as one that you mentioned in terms of regulatory intelligence. The greater focus on proactive and enforcement activity has led to an organisational design that supports the two SES positions that you’ve referred to. Those factors have changed the profile of capabilities the OAIC needs in order to deliver its mandate in the most effective way that we possibly can. There’s another factor as well—

CHAIR: Senator Scarr, I have to share the call.

  Senator SCARR: I have just one question.

Ms Tydd : That additional factor—I’m sorry, Senator, if I could just—

CHAIR: I think you just need to keep your answers a little brief so we can—

Ms Tydd : Okay. Thank you. The additional factor is that with the MYEFO funding we were also allocated our ASL staffing profile elevated, so therefore we’re advertising for those positions as well.

CHAIR: Great news. One last question.

  Senator SCARR: Commissioner, I’ve received information to the effect that staff are moving into different roles on a regular basis and don’t have enough time to settle into their roles, that staff are concerned about the work pressures being placed on them and some staff are actually having to perform two roles or multiple roles, and that this is all having a serious impact on staff morale. I take your answer in good faith, but when I look at those numbers of recruitment positions—and I don’t think they’re all explained by the explanation you gave about changing circumstances—I’m obliged to ask: is there a morale problem in the OAIC? And how are you looking to address that?

Ms Tydd : I’ll try to be as brief as possible in my answer. We’re reliant upon the APS survey results—last year’s results—and they did identify issues in terms of engagement et cetera. Capability uplift also is required in terms of our training program. But, importantly, we’re conducting a whole-of-OAIC summit in March to really reset team build, to set new directions and to respond to a very much changed workforce in which previously there was a lot of travel expenditure. That was one of the other expenditures that we reduced so that we could maintain a staffing profile. And we are rebuilding the capability and the culture of the OAIC in earnest, and it is our obligation and our intent to provide a safe and purposeful, meaningful and enjoyable workplace.

  Senator SCARR: Okay. Thank you.

  Senator SHOEBRIDGE: Commissioner, I hear what you say, but no organisation can survive a 30 per cent reduction in staff in a matter of months and not have morale problems, and that’s what you’ve had: a more than 30 per cent reduction in your staff, haven’t you?

Ms Tydd : I think you’re in the ballpark with that figure. If I remember correctly, it was about a 23 per cent reduction by virtue of the 1 July budget.

  Senator SHOEBRIDGE: You went from 200 to 138.

Ms Tydd : Yes.

  Senator SHOEBRIDGE: That’s a reduction in 62 full-time equivalents. That’s actually more than 30 per cent. Can I ask you, because we have minimal time, to provide on notice what you’ve done to deal with that—there’s effectively a razor gang going through the OAIC—in terms of keeping staff morale. Also, can you provide us with the staffing profile in terms of full-time equivalent employees and their relevant seniority in each of the different groups, such as those associated with the executive management role, those associated with regulatory intelligence and strategy, and FOI et cetera? Can you provide that and the changes from 1 July to where they are now?

Ms Tydd : I can supply some of that information now. I might just—

  Senator SHOEBRIDGE: Please, don’t. Because we don’t have time, I would ask you to provide those numbers on notice.

Ms Tydd : I would like to just generally observe that, for APS5 and below, we have increased the number of those staff; and, for APS6 and above right through to the SES, there has been a reduction in those categories.

  Senator SHOEBRIDGE: Thanks, Commissioner. My questions now are to the privacy commissioner. I want to cover both the Bunnings issue in the Property Lovers issue. Dealing first with the findings regarding Bunnings on facial recognition technology. What’s the status of that review?

Ms Kind : We issued our determination last year. Bunnings has sought review of the determination in the ART. We have had a first case management hearing, and the dates have been set for the filing of certain documents, and the matter is set for hearing.

  Senator SHOEBRIDGE: Has Bunnings given any undertaking or evidence to you that they’re no longer repeating the behaviour of using facial recognition? And have they given you any evidence or undertakings about destroying any personal information they received in the course of their use of it?

Ms Kind : To the best of my recollection, Bunnings paused the use of the technology at the time at which the investigation commenced some years ago. So it’s not a question of ongoing activities, acts and practices. In terms of enforcement of the determination, we’ve suspended any efforts to seek evidence about a compliance with the determination in anticipation of the review this year.

  Senator SHOEBRIDGE: I’ll just quickly go to your investigation and your determination regarding Property Lovers. Are you aware that their updated privacy policy still refers to collecting personal information for what is called ‘assisting distressed homeowners’ and that they’re hosting a video on the website fastproperty.ai, which refers to identifying distressed properties from court lists, with those properties then appearing on the platform. I’m putting those two things together because it seems, notwithstanding your determination, which I commend you for, they’re still engaging in predatory conduct. What’s happening with Property Lovers?

Ms Kind : Yes, we have grave concerns about compliance with the determination. I have sighted those things that you’ve just referred to, including the video. We have been in correspondence with the relevant parties about their compliance with the determination. In early January, they responded to some correspondence with their initial submissions evidencing their purported compliance. We weren’t satisfied with the information that was provided in that correspondence. We’ve written again to them suggesting other forms of evidence that they can place for the commissioner, and that correspondence is returnable by this Friday. And we have specifically inquired about the status of fastproperty.ai as a company that’s formed a relationship with Property Lovers and other matters as well. So we’re actively involved in seeking evidence around compliance and considering options around enforcement.

  Senator SHOEBRIDGE: Do you have take-down powers or injunctive powers in some of those enforcement options that are being considered?

Ms Kind : We have two general powers. One is to seek an enforcement order, and one is to seek conjunctive relief in Federal Court, and they can be sought in tandem. We are seeking legal advice on that.

  Senator SHOEBRIDGE: Thanks, Commissioner. Commissioner Tydd, not now because we’re going to run out of time, can you provide to the committee as soon as possible the number and status of FOI reviews?

Ms Tydd : I can very quickly give you those numbers now—

  Senator SHOEBRIDGE: That would be great.

Ms Tydd : and my colleague probably has that available. The backlog has reduced further. The number of IC reviews received as at 23 February is 1,279, and there are 1,494 finalised.

  Senator SHOEBRIDGE: So what’s the backlog?

Ms Pirani : It means that the number of cases that we had on hand at 23 February was down to 1,811.

  Senator SHOEBRIDGE: What’s the oldest case?

Ms Pirani : The oldest is from January 2021.

  Senator SHOEBRIDGE: Okay. If you could give a more granular breakdown on notice, I’d appreciate that. I note the time.

Ms Tydd : Can I just clarify, is that year by year?

  Senator SHOEBRIDGE: Yes, please.

CHAIR: Thank you, commissioners. That’s all the time we have this evening. That concludes today’s proceedings. I thank the minister, secretary and the department officers for their attendance, as well as Hansard, Broadcasting and secretariat staff. We did have some documents tabled today. Senator Scarr, I’m guessing that you’ll be moving that way.

  Senator SCARR: Absolutely.

CHAIR: Senators are reminded that questions on notice should be provided to the secretariat by 5 pm Thursday 6 March 2025.

 

 

Leave a Reply