A former Liberal party attorney general has written to the federal incumbent, George Brandis, reminding him of the critical importance of the rule of law and the separation of powers in a democratic society.



John Dowd, who served as the first law officer of New South Wales from 1988 to 1991, raised concerns that the government had budgeted insufficient funds for the Office of the Australian Information Commission (OAIC) and was “emasculating a statutory body, which can only be abolished by statute”.

Dowd wrote to Brandis on Monday in his capacity as president of the Australian section of the International Commission of Jurists (ICJ), which aims to protect the rule of law.

The government introduced legislation in 2014 to abolish the OAIC – a body that handles complaints about privacy issues and freedom of information decisions – but has yet to secure adequate support in the Senate to do so.

Dowd said the government had allowed the freedom of information commissioner position to remain vacant since the beginning of this year, had recently called on the privacy commissioner to serve as the acting information commissioner, and had not allocated sufficient funds for the OAIC to discharge its statutory obligations.

“The result is that the government is seeking to achieve executively what it cannot achieve legislatively,” Dowd said in the letter to Brandis.

“This is of profound concern to the ICJ which has the responsibility of defending the rule of law.

“The rule of law is not a nebulous concept but does have some very specific components, one of which is the doctrine of the separation of powers … It is disappointing that we have to draw this simple principle to your attention.”



When a government was seen to be doing executively what it was unable to do by legislation, Dowd wrote, concerns about “insults to rule of law and the doctrine of separation of powers are understandably aroused”.

“When this executive function has the effective result of emasculating a statutory body, which can only be abolished by statute, there can be no doubt that the wall of protection separating the executive from the legislature has been breached,” he said.

Dowd told Brandis a government should not prevent the ongoing effective discharge of the functions of a statutory body that the law required to continue, otherwise “the consequences in a civilised society such as ours would be too disastrous to contemplate”. He said if that were the case, a government could emasculate any statutory body that caused it displeasure.

Dowd sought a reassurance from Brandis that the government would continue to fund the OAIC, including provision for a permanent commissioner to replace the previous office holder, Professor John McMillan, and a commissioner to fill the vacant office of the freedom of information commissioner.

The government has argued for the abolition of the OAIC to “streamline” privacy and freedom of information functions, according to the explanatory memorandum.

This would include the provision of a privacy commissioner as an independent statutory office holder within the Human Rights Commission and giving the Administrative Appeals Tribunal the sole jurisdiction for external merits review of freedom of information decisions.