Untitled document

Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017

No. 20 of 2017

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Amendment of Freedom of Information Act 1982

4Definitions

5Section 6AA substituted

6Part IA substituted

7Part IB substituted

8Section 21 substituted

9Requests may be refused in certain cases

10Reasons etc. to be given

11Cabinet documents

12Documents containing matter communicated by any other State

13Documents affecting national security, defence or international relations

14Law enforcement documents

15New section 31A inserted

16Document affecting personal privacy

17New section 33A inserted

18Documents related to trade secrets etc.

19Documents containing material obtained in confidence

20Heading to Division 1 of Part VI substituted

21Applications to Information Commissioner for review

22Time for applying for review

23Form of application

24Notice and copies of application for review

25Parties to review

26Section 49EA repealed

27Section 49F substituted

28Information Commissioner may determine not to accept application or may dismiss review

29Procedure on review

30Section 49I substituted

31Effect of delay by Information Commissioner in relation to requests

32Preliminary inquiries

33New sections 49KA and 49KB inserted

34Referral back to agency or Minister for reconsideration

35Reconsideration at agency's or Minister's own initiative

36Procedure after reconsideration under section 49L or 49M

37Information Commissioner may facilitate a negotiated agreement

38Referral of matter to a relevant authority

39Review of decisions under section 25A(5)

40Decision on review

41Conciliation by Health Services Commissioner

42Applications for review by the Tribunal

43Information Commissioner may be called on to assist Tribunal

44Time for applying for review

45Reviews where decisions delayed

46Procedure where Tribunal determines that there do not exist reasonable grounds for claim under section 29A

47Notification of reviews regarding documents affecting personal privacy

48Inspection of exempt documents by Tribunal

49Disciplinary action

50Complaints

51Section 61AB repealed

52Information Commissioner may accept or decline to deal with complaint

53Referral of complaint to another body

54Notice of decision to investigate complaint

55Section 61E substituted

56Complaint must be dealt with in private

57Preliminary inquiries and consultation

58New sections 61GA and 61GB inserted

59Conciliation of complaint

60Procedure for dealing with complaint if conciliation fails

61Section 61J repealed

62Section 61K repealed

63Outcome of complaint

64Section 61M substituted

65Section 61N repealed

66New Parts VIB and VIC inserted

67Protection against actions for defamation or breach of confidence

68Section 63A substituted

69Protection of person making complaint

70New section 63BA inserted

71Division 2 of Part VII substituted and new  Division 2A inserted

72Reporting by Information Commissioner

73Reports to Accountability and Oversight Committee

74Duty of agency or Minister to comply with requirements of Information Commissioner

75Regulations

76New section 72 inserted

77New Schedule 1 inserted

Part 3—Amendment of Privacy and Data Protection Act 2014

78Purposes

79Definitions

80New Part 1A inserted

81Ministerial approval of information usage arrangement

82Complaint referred to Commissioner

83Commissioner may refer complaint

84Power to obtain information and documents

85When may VCAT hear a complaint

86Power to obtain information and documents

87Sections 80 and 81 repealed

88New Division 10 of Part 3 inserted

89Commissioner to develop Victorian protective data security framework

90Heading to Part 6 substituted

91Division 1 of Part 6 repealed

92Heading to Division 2 of Part 6 substituted

93Section 103 repealed

94Section 104 repealed

95Section 105 repealed

96Commissioner may require access to data and data systems from public sector body Heads

97Commissioner may require access to data and data systems from Chief Commissioner of Police

98Commissioner may request access to crime statistics data

99Heading to Division 3 of Part 6 substituted

100Section 114 repealed

101Section 115 repealed

102Secrecy

103Section 122 substituted

104New section 129 inserted

105New Schedule 3 inserted

106Amendment of references to Commissioner for Privacy and Data Protection

Part 4—Amendment of Victorian Inspectorate Act 2011

107Definitions

108Objects of Act

109Functions of the Victorian Inspectorate

110Delegation

111New Part 5A inserted

112Complaints

113Investigation of complaint

114Own motion investigation

115Conduct of the investigation

116Requirement to provide assistance

117Conduct of inquiry

118Content and form of witness summons

119Legal representation of witnesses and other persons

120Powers of entry, inspection and seizure

121Privileges and secrecy generally

122New sections 85A and 85B inserted

123Recommendations must not include information likely to identify person who makes an assessable disclosure

124Advice to a complainant

125Outcome of investigation

126Matters to be included in annual report

127Exemption from Freedom of Information Act 1982

Part 5—Amendment of Independent Broad-based Anti-corruption Commission Act 2011 and Parliamentary Committees Act 2003

Division 1—Independent Broad-based Anti‑corruption Commission Act 2011

128Definitions

129Section 194 substituted

Division 2—Parliamentary Committees Act 2003

130Definitions

131Accountability and Oversight Committee

132New Part 10 inserted

Part 6—Consequential amendments to other Acts

Division 1—Health Complaints Act 2016

Division 2—Amendment of Principal Act

Division 3—Judicial Commission of Victoria Act 2016

133Judicial Commission of Victoria Act 2016

Division 4—Amendments to other Acts

134Consequential amendments to other Acts

Part 7—Repeal of amending Act

135Repeal of amending Act

Schedule 1—Consequential amendments

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Endnotes

1      General information

Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017

No. 20 of 2017

[Assented to 16 May 2017]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Freedom of Information Act 1982—

(i)to establish the Office of the Victorian Information Commissioner and abolish the Freedom of Information Commissioner; and

(ii)to appoint the Information Commissioner and the Public Access Deputy Commissioner; and

(iii)to allow the Information Commissioner to review decisions made by Ministers and principal officers; and

(iv)to allow the Information Commissioner to review decisions to exempt Cabinet documents; and

(v)to provide for limited use of Cabinet certificates; and

(vi)to reduce timeframes for responding to requests; and

(vii)to make amendments relating to professional standards; and

(viii)to provide for the Information Commissioner to conduct investigations; and

(ix)to clarify the exemptions for certain IBAC documents; and

(x)to make other amendments to otherwise improve the operation of that Act; and

(b)to amend the Privacy and Data Protection Act 2014—

(i)to abolish the Commissioner for Privacy and Data Protection and confer the Commissioner's functions on the Information Commissioner; and

(ii)to appoint the Privacy and Data Protection Deputy Commissioner; and

(c)to amend the Victorian Inspectorate Act 2011 to enable oversight of the Office of the Victorian Information Commissioner; and

(d)to amend the Independent Broad-based Anti-corruption Commission Act 2011 in relation to documents that are exempt from the Freedom of Information Act 1982; and

(e)to amend the Parliamentary Committees Act 2003 to allow the Accountability and Oversight Committee oversight of the Office of the Victorian Information Commissioner; and

(f)to make consequential amendments to other Acts.

2Commencement

(1)Subject to this section, this Act comes into operation on a day or days to be proclaimed.

(2)Division 1 of Part 6 comes into operation on the later of the following—

(a)on the day on which Part 2 comes into operation; or

(b)the day on which section 3 of the Judicial Commission of Victoria Act 2016 comes into operation.

(3)If a provision of this Act (other than a provision referred to in subsection (2)) does not come into operation before 1 September 2017, it comes into operation on that day.

3Principal Act

In this Act, the Freedom of Information Act 1982 is called the Principal Act.

Part 2—Amendment of Freedom of Information Act 1982

4Definitions

In section 5(1) of the Principal Act—

(a)insert the following definitions—

"child means a person under the age of 18 years;

IBAC means the Independent Broad-based Anti-corruption Commission established under section 12 of the Independent Broad-based
Anti-corruption Commission Act 2011;

Information Commissioner means the Information Commissioner appointed under section 6C;

investigation means an investigation under Part VIB;

legal practitioner means an Australian legal practitioner;

member of staff, of the Office of the Victorian Information Commissioner, means a person employed or engaged under section 6Q;

Ministerial professional standards means professional standards adopted under section 6Y(1);

notice to produce or attend means a notice to produce or attend issued under section 49KB, 61I(4) or 61P(2), and includes a notice as varied under section 61V;

Office of the Victorian Information Commissioner means the Office of the Victorian Information Commissioner established under section 6B;

professional standards means standards published under section 6V(1), but does not include Ministerial professional standards;

Public Access Deputy Commissioner means the Public Access Deputy Commissioner appointed under section 6D;";

(b)in the definition of Tribunal, for "1998." substitute "1998;";

(c)after the definition of Tribunal insert—

"Victorian Inspectorate means the Victorian Inspectorate established under section 8 of the Victorian Inspectorate Act 2011.";

(d)the definitions of Assistant Commissioner and Freedom of Information Commissioner are repealed.

5Section 6AA substituted

For section 6AA of the Principal Act substitute—

"6AA   Act not to apply to access to certain documents of Office of Victorian Information Commissioner

This Act does not apply to access to a document that is in the possession of—

(a)the Information Commissioner or the Public Access Deputy Commissioner; or

(b)a member of staff of the Office of the Victorian Information Commissioner; or

(c)a contractor, agent or other person acting for or on behalf of the Information Commissioner or the Public Access Deputy Commissioner—

to the extent that the document is the subject of, or discloses information that relates to—

(d)a review under Part VI; or

(e)a complaint to the Information Commissioner under Part VIA; or

(f)an investigation.".

6Part IA substituted

For Part IA of the Principal Act substitute—

"Part IA—Office of the Victorian Information Commissioner

6BEstablishment of the Office of the Victorian Information Commissioner

(1)There is to be an Office of the Victorian Information Commissioner.

(2)The Office of the Victorian Information Commissioner consists of—

(a)the Information Commissioner; and

(b)the Public Access Deputy Commissioner; and

(c)the Privacy and Data Protection Deputy Commissioner appointed under section 8H of the Privacy and Data Protection Act 2014; and

(d)the staff employed and other persons engaged under section 6Q.

(3)Except where expressly provided in this Act or the Privacy and Data Protection Act 2014—

(a)the Information Commissioner is not subject to the direction or control of the Minister in respect of the performance of the Information Commissioner's duties and functions and the exercise of the Information Commissioner's powers; and

(b)the Public Access Deputy Commissioner is not subject to the direction or control of the Minister in respect of the performance of the Deputy Commissioner's duties and functions and the exercise of the Deputy Commissioner's powers.

6CAppointment of the Information Commissioner

(1)The Governor in Council, on the recommendation of the Minister, may appoint an eligible person as the Information Commissioner.

(2)The following persons are not eligible to be appointed as the Information Commissioner—

(a)a person who is a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory;

(b)a person who is a member of a council.

(3)A person may hold office as Information Commissioner for not more than 2 terms (whether consecutive terms or otherwise).

6DAppointment of Public Access Deputy Commissioner

(1)The Governor in Council may appoint an eligible person as the Public Access Deputy Commissioner.

(2)A person is not eligible for appointment as the Public Access Deputy Commissioner if the person is—

(a)a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory; or

(b)a member of a council.

(3)A person may hold office as Public Access Deputy Commissioner for not more than 2 terms (whether consecutive terms or otherwise).

6ETerms and conditions of appointment of Information Commissioner

(1)The appointment of the Information Commissioner is to be for the period, not exceeding 5 years, set out in the instrument of appointment.

(2)Subject to this Part, the Information Commissioner holds office on the terms and conditions determined by the Governor in Council.

(3)Subject to section 6C(3), the Information Commissioner may be reappointed.

(4)The Information Commissioner is entitled to leave of absence as determined by the Governor in Council.

(5)The Information Commissioner must not directly or indirectly engage in paid employment outside the duties of the office of Information Commissioner.

(6)The Public Administration Act 2004 does not apply to the Information Commissioner in respect of the Office of the Victorian Information Commissioner except as provided for in section 16 of that Act.

6FTerms and conditions of appointment of Public Access Deputy Commissioner

(1)The appointment of the Public Access Deputy Commissioner is to be for the period, not exceeding 5 years, set out in the instrument of appointment.

(2)Subject to this Part, the Public Access Deputy Commissioner holds office on the terms and conditions determined by the Governor in Council.

(3)Subject to section 6D(3), the Public Access Deputy Commissioner may be reappointed.

(4)The Public Access Deputy Commissioner is entitled to leave of absence as determined by the Governor in Council.

(5)The Public Access Deputy Commissioner must not directly or indirectly engage in paid employment outside the duties of the office of Public Access Deputy Commissioner.

6GFunctions of the Information Commissioner

(1)The Information Commissioner has the following functions—

(a)the functions set out in section 6I;

(b)any other functions conferred on the Information Commissioner by or under this Act;

(c)the functions conferred on the Information Commissioner by or under the Privacy and Data Protection Act 2014 or any other Act.

(2)The Information Commissioner must perform functions and exercise powers under this or any other Act with as little formality and technicality as possible.

6HFunctions of the Public Access Deputy Commissioner

(1)The Public Access Deputy Commissioner has the functions set out in section 6I(2) and any function conferred on the Information Commissioner under this Act other than—

(a)a function conferred on the Information Commissioner by or under the Privacy and Data Protection Act 2014 or any other Act; or

(b)a function of the Information Commissioner referred to in section 6I(1); or

(c)a function of the Information Commissioner referred to in section 6R; or

(d)issuing directions under section 6S; or

(e)a function of the Information Commissioner referred to in section 63G.

(2)The Public Access Deputy Commissioner must perform functions and exercise powers under this or any other Act with as little formality and technicality as possible.

6IFreedom of information functions

(1)The Information Commissioner has the following functions—

(a)to employ staff and engage contractors under section 6Q;

(b)to develop and review professional standards in accordance with Part IB;

(c)to make reports in accordance with Division 3 of Part VII;

(d)to provide advice, at the request of the Minister, about the operation and administration of this Act;

(e)to conduct investigations under Part VIB.

(2)The Information Commissioner and the Public Access Deputy Commissioner each have the following functions—

(a)to promote understanding and acceptance by agencies and the public of this Act and the object of this Act;

(b)to provide advice, education and guidance to agencies and the public in relation to compliance with the professional standards;

(c)to monitor compliance with professional standards;

(d)in accordance with Division 1 of Part VI, to conduct reviews of decisions by agencies and Ministers on requests;

(e)in accordance with Part VIA, to receive and handle complaints;

(f)to provide advice, education and guidance to agencies and the public in relation to the Information Commissioner's functions.

6JPerformance of concurrent functions

If a function may be performed by the Information Commissioner and the Public Access Deputy Commissioner, that function may be performed by—

(a)the Information Commissioner; or

(b)the Public Access Deputy Commissioner; or

(c)the Information Commissioner and the Public Access Deputy Commissioner.

6KGeneral powers of Information Commissioner and Public Access Deputy Commissioner

(1)The Information Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of the Information Commissioner's functions.

(2)The Public Access Deputy Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of the Deputy Commissioner's functions.

6LRemuneration

(1)The Information Commissioner is entitled to be paid the remuneration and allowances that are determined by the Governor in Council.

(2)The Public Access Deputy Commissioner is entitled to be paid the remuneration and allowances that are determined by the Governor in Council.

6MVacancy and resignation of Information Commissioner or Public Access Deputy Commissioner

(1)The Information Commissioner ceases to hold office if the Information Commissioner—

(a)resigns by notice in writing delivered to the Minister; or

(b)becomes an insolvent under administration; or

(c)is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(d)nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; or

(e)nominates for election as a member of a council; or

(f)is removed from office under section 6N.

(2)The Public Access Deputy Commissioner ceases to hold office if the Deputy Commissioner—

(a)resigns by notice in writing delivered to the Minister; or

(b)becomes an insolvent under administration; or

(c)is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(d)nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; or

(e)nominates for election as a member of a council; or

(f)is removed from office under section 6O.

(3)A resignation under subsection (1)(a) or (2)(a) takes effect on—

(a)the day on which it is received by the Minister; or

(b)if a later day is specified in the notice, on that day.

6NSuspension of Information Commissioner and removal from office

(1)The Governor in Council, on the advice of the Minister, may suspend the Information Commissioner from office on any ground on which the Governor in Council is satisfied that the Commissioner is unfit to hold office.

(2)The Minister must cause a full statement of the grounds of suspension to be presented to each House of Parliament within 7 sitting days of that House after the suspension.

(3)The Information Commissioner must be removed from office by the Governor in Council if each House of Parliament, within 20 sitting days after the day on which the statement is presented to it, declares by resolution that the Commissioner ought to be removed from office.

(4)The Governor in Council must remove the suspension and restore the Information Commissioner to office unless each House makes a declaration of the kind specified in subsection (3) within the time specified in that subsection.

(5)If the Information Commissioner is suspended from office under subsection (1), the Information Commissioner is taken not to be the Information Commissioner during the period of suspension.

6OSuspension of Public Access Deputy Commissioner and removal from office

(1)The Governor in Council, on the recommendation of the Minister, may suspend or remove the Public Access Deputy Commissioner from office on any of the following grounds—

(a)misconduct;

(b)neglect of duty;

(c)inability to perform the duties of the office;

(d)any other ground on which the Governor in Council is satisfied that the Public Access Deputy Commissioner should not hold office.

(2)If the Public Access Deputy Commissioner is removed from office, the Minister must cause a full statement of the grounds for removal to be presented to each House of Parliament within 10 sitting days of that House after the removal.

6PActing Information Commissioner and Public Access Deputy Commissioner

(1)The Governor in Council, on the recommendation of the Minister, may appoint an eligible person to act as the Information Commissioner—

(a)during a vacancy in the office of the Information Commissioner; or

(b)during any period, or all periods, when the Information Commissioner is absent from duty or from the State or, for another reason, cannot perform the functions of the office.

(2)The Governor in Council, on the recommendation of the Minister, may appoint an eligible person to act as the Public Access Deputy Commissioner—

(a)during a vacancy in the office of the Public Access Deputy Commissioner; or

(b)during any period, or all periods, when the Public Access Deputy Commissioner is absent from duty or from the State or, for another reason, cannot perform the functions of the office.

(3)A person is not eligible for appointment to act as the Information Commissioner or the Public Access Deputy Commissioner if the person is—

(a)a member of the Parliament of Victoria or of the Commonwealth or of another State or a Territory; or

(b)a member of a council.

(4)An appointment under subsection (1) or (2) is for the period, not exceeding 12 months, set out in the instrument of appointment.

(5)The Governor in Council, on the recommendation of the Minister, may at any time remove the acting Information Commissioner or the acting Public Access Deputy Commissioner from office.

(6)While a person is acting in the office of the Information Commissioner or the Public Access Deputy Commissioner, the person—

(a)has, and may exercise, all the powers and must perform all the duties of that office under this Act and any other Act; and

(b)is entitled to be paid the remuneration and allowances that the Information Commissioner or Public Access Deputy Commissioner would have been entitled to for performing those duties.

6QStaff

The Information Commissioner may—

(a)employ under Part 3 of the Public Administration Act 2004 any employees that are necessary for the purposes of the Information Commissioner's functions under this Act or the Privacy and Data Protection Act 2014; and

(b)engage any contractor, agent or other person to assist the Information Commissioner in the performance of the Information Commissioner's functions under this Act or the Privacy and Data Protection Act 2014.

6RDelegation

(1)The Information Commissioner may by instrument delegate to the Public Access Deputy Commissioner or any member of staff any of the Information Commissioner's functions and powers under this Act except—

(a)the power to employ staff and engage contractors or other persons under section 6Q; or

(b)the power to make a fresh decision under section 49P on a review under Part VI; or

(c)the power to make recommendations under section 61L in relation to a complaint under Part VIA; or

(d)the power to prepare a report under Part VII; or

(e)this power of delegation.

(2)The Information Commissioner may by instrument delegate only to the Public Access Deputy Commissioner the power to undertake an investigation.

(3)The Information Commissioner may by instrument delegate to the Public Access Deputy Commissioner or any member of staff a function or power conferred on the Information Commissioner by or under any other Act except—

(a)a function or power conferred on the Information Commissioner by or under the Privacy and Data Protection
Act 2014; or

(b)a function or power relating to information privacy, protective data security or law enforcement data security conferred on the Information Commissioner by or under any other Act.

(4)With the written consent of the Information Commissioner, the Public Access Deputy Commissioner may by instrument delegate to any member of staff any of the Deputy Commissioner's functions and powers (including any power delegated to the Deputy Commissioner under subsection (1)) except—

(a)the power to make a fresh decision under section 49P on a review under Part VI; or

(b)the power to make recommendations under section 61L in relation to a complaint under Part VIA; or

(c)this power of delegation.

6SDirections

The Information Commissioner may issue directions to the Public Access Deputy Commissioner or to any member of staff in relation to the performance of functions under this Act other than in relation to the following—

(a)the review of a decision under section 49P;

(b)the consideration of a complaint under section 61L.

6TValidity of acts and decisions

An act or decision of the Information Commissioner, Public Access Deputy Commissioner or acting Information Commissioner or acting Public Access Deputy Commissioner is not invalid only because—

(a)of a defect or irregularity in or in connection with the appointment of the Information Commissioner, Public Access Deputy Commissioner or acting Information Commissioner or acting Public Access Deputy Commissioner; or

(b)in the case of an acting Information Commissioner or acting Public Access Deputy Commissioner, that the occasion for so acting had not arisen or had ceased.".

7Part IB substituted

For Part IB of the Principal Act substitute—

"Part IB—Professional standards

6UDevelopment of professional standards

(1)The Information Commissioner may develop professional standards relating to—

(a)the conduct of agencies in performing functions under this Act; and

(b)the administration of this Act in relation to agencies and the operation of this Act by agencies.

(2)The professional standards may include standards for the processing of requests under this Act, including standards for—

(a)assistance for applicants in making requests; and

(b)identification of relevant documents; and

(c)consultation; and

(d)clear communication with applicants; and

(e)timely decision-making, including extending time for making decisions on requests.

(3)The professional standards must not be inconsistent with this Act.

(4)Before publishing professional standards under section 6V the Information Commissioner must—

(a)publish the draft professional standards on the Internet site of the Office of the Victorian Information Commissioner; and

(b)notify, in writing, principal officers of agencies and any other relevant person that—

(i)the draft professional standards have been published; and

(ii)submissions may be made to the Information Commissioner on or before the date specified in the notice.

(5)The date specified in a notice under subsection (4)(b) must be at least 28 days after the day on which the draft professional standards are published.

(6)The Information Commissioner must take into account all reasonable submissions made under this section relating to the draft professional standards before publishing them under section 6V.

6VPublication of professional standards

(1)As soon as practicable after finalising draft professional standards in accordance with section 6U, the Information Commissioner must cause the professional standards to be published—

(a)in the Government Gazette; and

(b)on the Internet site of the Office of the Victorian Information Commissioner.

(2)Professional standards have effect on and after the later of the following—

(a)the date specified in the professional standards; or

(b)the date that is 20 business days after the day on which the professional standards are published in the Government Gazette.

(3)The Information Commissioner must cause a copy of the professional standards published under subsection (1) to be laid before each House of Parliament not more than 6 sitting days after the day on which the standards are published in the Government Gazette.

6WCompliance with professional standards

(1)Subject to subsection (3), the principal officer of an agency and any officer or employee of the agency concerned in the operation of this Act must comply with professional standards in performing the officer's or employee's functions under this Act.

(2)Subject to subsection (3), the principal officer of an agency must ensure that any officer or employee of the agency concerned in the operation of this Act complies with any professional standards in performing the officer's or employee's functions under this Act.

(3)Professional standards do not apply to a principal officer, officer or employee of an agency in making decisions in respect of requests made to a Minister, except as provided under section 6Y.

(4)A principal officer must ensure that all officers and employees of the agency are informed about the requirements of the professional standards.

6XReview and amendment of professional standards

(1)The Information Commissioner must review professional standards at least once in every 4-year period.

(2)The Information Commissioner may at any time amend professional standards.

(3)The requirements of sections 6U and 6V apply to any amendment of professional standards, other than typographical or similar amendments.

6YMinisterial professional standards

(1)The Premier, by notice published in the Government Gazette, may adopt professional standards (either wholly or with modifications) to be applied to Ministers.

(2)If the Premier adopts professional standards under subsection (1)—

(a)the professional standards as adopted have effect on and after the date stated in the notice; and

(b)the Premier must cause the professional standards as adopted to be published on the Internet site of the Department of Premier and Cabinet at least 20 business days before the date stated in the notice.

(3)The Premier must review Ministerial professional standards whenever the Information Commissioner reviews or amends professional standards under section 6X.

(4)The Premier may at any time amend Ministerial professional standards.

(5)The requirements of subsections (1) and (2) apply to any amendment of Ministerial professional standards, other than typographical or similar amendments.

6ZCompliance with Ministerial professional standards

(1)A Minister must comply with Ministerial professional standards in performing the Minister's functions under this Act.

(2)A person (including an officer of an agency) authorised to make decisions in respect of requests made to a Minister must comply with Ministerial professional standards in relation to that request.".

8Section 21 substituted

For section 21 of the Principal Act substitute—

"21   Time within which formal requests to be decided

(1)An agency or Minister must take all reasonable steps to enable an applicant to be notified of a decision on a request as soon as practicable but not later than—

(a)30 days after the day on which the request is received by or on behalf of the agency or Minister; or

(b)if that period is extended or further extended, the day after that period as extended ends.

(2)An agency or Minister may extend the period for deciding a request referred to in subsection (1)(a)—

(a)if consultation is required under section 29, 29A, 31, 31A, 33, 34 or 35, by a period of not more than 15 days; or

(b)in any case, by a period of not more than 30 days, as agreed by the applicant.

(3)An agency or Minister may further extend a period for deciding a request in accordance with subsection (2)(b) any number of times.

(4)An agency or Minister must notify the applicant in writing if the period for deciding a request is extended or further extended under this section.

(5)The period for deciding a formal request cannot be extended or further extended under this section if that period has expired.".

9Requests may be refused in certain cases

In section 25A(7) of the Principal Act—

(a)for "section 21" (where first occurring) substitute "section 21(1)";

(b)for "45 day period referred to in section 21" substitute "period referred to in
section 21(1)".

10Reasons etc. to be given

(1)In section 27(1)(e) of the Principal Act—

(a)after "agency" insert "or a Minister";

(b)for "or 31" substitute ", 31 or 31A";

(c)for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)In section 27(2)(b) of the Principal Act, for
"or 31" (where twice occurring) substitute ", 31 or 31A".

11Cabinet documents

Section 28(4), (5) and (6) of the Principal Act are repealed.

12Documents containing matter communicated by any other State

At the end of section 29 of the Principal Act insert—

"(2)In deciding whether a document is an exempt document under subsection (1), an agency or Minister, if practicable, must—

(a)notify any of the following that are relevant that the agency or Minister has received a request for access to the document—

(i)another agency or Minister;

(ii)an agency of another country or the Commonwealth or another State or a Territory;

(iii)an authority of another country or the Commonwealth or another State or a Territory; and

(b)seek the view of that agency, authority or Minister as to whether the document should be disclosed.".

13Documents affecting national security, defence or international relations

(1)After section 29A(1C) of the Principal Act insert—

"(1D)In deciding whether a document is an exempt document under this section, an agency or Minister, if practicable, must—

(a)notify any of the following that are relevant that the agency or Minister has received a request for access to the document—

(i)another agency or Minister;

(ii)an agency of another country or the Commonwealth or another State or a Territory;

(iii)an authority of another country or the Commonwealth or another State or a Territory; and

(b)seek the view of that agency, authority or Minister as to whether the document should be disclosed.".

(2)For section 29A(2) of the Principal Act substitute—

"(2)For the purposes of this Act—

(a)a certificate signed by a Department Head or the Chief Commissioner of Police certifying that a document as described in a request is or, if it existed, would be one of a kind referred to in subsection (1), (1A) or (1B) establishes that the document is or, if it existed, would be an exempt document;

(b)a certificate signed by a Department Head or the Chief Commissioner of Police certifying that a document as described in a notice to produce or attend is or, if it existed, would be one of a kind referred to in subsection (1), (1A) or (1B) establishes that the document is or, if it existed, would be an exempt document;

(c)a certificate signed by a Department Head or the Chief Commissioner of Police certifying that information described in a notice to produce or attend would, if included in a document, make that document one of a kind referred to in subsection (1), (1A) or (1B), establishes that the information described is information that if included in a document would make that document an exempt document.".

(3)For section 29A(3) of the Principal Act substitute—

"(3)The Information Commissioner must not conduct a review, handle a complaint or conduct an investigation in respect of—

(a)a certificate under subsection (2); or

(b)a question whether a document is, or whether a document including the information would be, of a kind referred to in subsection (1), (1A) or (1B); or

(c)a decision to sign a certificate under subsection (2).".

14Law enforcement documents

After section 31(4) of the Principal Act insert—

"(5)In deciding whether a document is an exempt document under subsection (1), an agency or Minister, if practicable, must—

(a)notify any of the following that are relevant that the agency or Minister has received a request for access to the document—

(i)another agency or Minister;

(ii)an agency of the Commonwealth or another State or a Territory;

(iii)an authority of the Commonwealth or another State or a Territory; and

(b)seek the view of that agency, authority or Minister as to whether the document should be disclosed.

(6)In deciding whether it is in the public interest to grant access to a document referred to in subsection (2), an agency or Minister, if practicable, must—

(a)notify any of the following that are relevant that the agency or Minister has received a request for access to the document—

(i)another agency or Minister;

(ii)an agency of the Commonwealth or another State or a Territory;

(iii)an authority of the Commonwealth or another State or a Territory; and

(b)seek the view of that agency, authority or Minister as to whether the document should be disclosed in the public interest.".

15New section 31A inserted

After section 31 of the Principal Act insert—

"31A   Documents relating to IBAC

(1)A document is an exempt document if its disclosure under this Act would, or would be reasonably likely to—

(a)prejudice an investigation undertaken by the IBAC; or

(b)disclose, or enable a person to ascertain, the identity of any person or body (other than Victoria Police) who has provided information to the IBAC; or

(c)disclose methods or procedures for preventing, investigating or dealing with protected disclosures, complaints or notifications relating to corrupt conduct or police personnel conduct the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(d)endanger the lives or physical safety of persons engaged in or in connection with the IBAC's functions or persons who have provided information to the IBAC.

(2)In deciding whether a document is an exempt document under subsection (1), an agency or Minister, if practicable, must—

(a)notify the IBAC that the agency or Minister has received a request for access to the document; and

(b)seek the IBAC's view as to whether the document should be disclosed.

Note

See also section 194 of the Independent Broad-based Anti-corruption Commission Act 2011.".

16Document affecting personal privacy

(1)After section 33(2A) of the Principal Act insert—

"(2B)An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must—

(a)notify the person who is the subject of that information (or if that person is deceased, that person's next of kin) that the agency or Minister has received a request for access to the document; and

(b)seek that person's view as to whether disclosure of the document should occur; and

(c)state that if the person consents to disclosure of the document, or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply to the Tribunal for review of a decision to grant access to that document.

(2C)Despite subsection (2B), an agency or Minister is not required to notify a person if—

(a)the notification would be reasonably likely to endanger the life or physical safety of that person, or cause that person undue distress, or is otherwise unreasonable in the circumstances; or

(b)it is not practicable to do so.".

(2)For section 33(3) of the Principal Act substitute—

"(3)If a request by a person other than a person referred to in subsection (2) is made to an agency or Minister for access to a document containing information relating to the personal affairs of any person (including a deceased person) and the agency or Minister decides to grant access to the document, the agency or Minister, if practicable, must notify the person who is the subject of that information (or that person's next of kin) of the—

(a)decision to grant access to the document; and

(b)right to make an application for review of the decision provided by section 50(3).

(3A)An agency or Minister is not required to notify a person who has consented to disclosure of a document, or a document with deletions, of the decision to disclose that document or document with deletions (as the case requires).".

17New section 33A inserted

After section 33 of the Principal Act insert—

"33A   Notice requirement where person is a child—document affecting personal privacy or information communicated in confidence

For the purposes of sections 33 and 35, if the person who is required to be notified about a request is a child, the agency or Minister may notify either or both of the following—

(a)the child;

(b)a parent or guardian of the child.".

18Documents related to trade secrets etc.

For section 34(3) of the Principal Act substitute—

"(3)An agency or Minister, in deciding whether the disclosure of information would expose an undertaking unreasonably to disadvantage, if practicable, must—

(a)notify the undertaking that the agency or Minister has received a request for access to the document; and

(b)seek the undertaking's view as to whether disclosure of the document should occur; and

(c)state that if the undertaking consents to disclosure of the document, or disclosure subject to deletion of information likely to expose the undertaking to disadvantage, the undertaking is not entitled to apply to the Tribunal for review of a decision to grant access to that document.

(3A)If the agency or Minister, after consultation, decides to disclose the document, the agency or Minister must notify the undertaking from which the document was acquired of the—

(a)decision to grant access to the document; and

(b)right to make an application for review of the decision provided by section 50(3A).

(3B)An agency or Minister is not required to notify an undertaking that has consented to disclosure of a document, or a document with deletions, of the decision to disclose that document or document with deletions (as the case requires).".

19Documents containing material obtained in confidence

After section 35(1) of the Principal Act insert—

"(1A)An agency or Minister, in deciding whether a document is an exempt document under subsection (1), must—

(a)notify the following that the agency or Minister has received a request for access to the document—

(i)the person or government that communicated the information or matter;

(ii)the person or government on whose behalf the information or matter was communicated; and

(b)seek the view of that person or government as to whether—

(i)the information or matter was communicated in confidence; and

(ii)the disclosure of the information or matter would be contrary to the public interest for the reason set out in subsection (1)(b); and

(c)if notifying a person, state that if the person consents to disclosure of the document, or disclosure subject to deletion of the information or matter communicated in confidence, the

person is not entitled to apply to the Tribunal for review of a decision to grant access to that document.

(1B)Despite subsection (1A), an agency or Minister is not required to notify a person if—

(a)the notification would be reasonably likely to endanger the life or physical safety of that person, or cause that person undue distress, or is otherwise unreasonable in the circumstances; or

(b)it is not practicable to do so.

(1C)If the agency or Minister, after consultation, decides to disclose the document, the agency or Minister must notify the person who communicated the information or matter, or on whose behalf the information or matter was communicated, of the—

(a)decision to grant access to the document; and

(b)right to make an application for review of the decision provided by section 50(3AB).

(1D)An agency or Minister is not required to notify a person who has consented to disclosure of a document, or a document with deletions, of the decision to disclose that document or document with deletions (as the case requires).".

20Heading to Division 1 of Part VI substituted

For the heading to Division I of Part VI of the Principal Act substitute—

"Division 1—Review by Information Commissioner".

21Applications to Information Commissioner for review

(1)In the heading to section 49A of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)For section 49A(1)(a) of the Principal Act substitute—

"(a)a decision of an agency or a Minister refusing to grant access to a document in accordance with a request; or".

(3)In section 49A of the Principal Act—

(a)for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner";

(b)after "an agency" (wherever occurring) insert "or Minister".

(4)Section 49A(3) of the Principal Act is repealed.

(5)In section 49A(4) of the Principal Act—

(a)after "agency" insert "or a Minister";

(b)for "section 28 or 29A" substitute "section 29A".

(6)In section 49A(5) of the Principal Act—

(a)after "an agency" insert "or a Minister";

(b)for "section 28 or 29A" substitute "section 29A";

(c)after "the agency" insert "or Minister".

22Time for applying for review

(1)In section 49B of the Principal Act, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

(2)In section 49B(3) of the Principal Act, after "the agency" insert "or Minister".

23Form of application

In section 49C(b)(i) of the Principal Act, after "the agency" insert "or Minister".

24Notice and copies of application for review

(1)In section 49D of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)In section 49D(1) of the Principal Act, after "the agency" insert "or Minister".

(3)In section 49D of the Principal Act, after "agency" (where twice occurring) insert "or the Minister".

25Parties to review

In section 49E(b) of the Principal Act, after "the agency" insert "or Minister".

26Section 49EA repealed

Section 49EA of the Principal Act is repealed.

27Section 49F substituted

For section 49F of the Principal Act substitute—

"49F   Review of decision

Subject to this Division, the Information Commissioner may review the decision that is the subject of the application for review.".

28Information Commissioner may determine not to accept application or may dismiss review

(1)In the heading to section 49G of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)In section 49G of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(3)In section 49G(3) of the Principal Act, after "the agency" insert "or Minister".

29Procedure on review

(1)In section 49H of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)In section 49H(4) of the Principal Act, for "person referred to in section 6J" substitute "member of staff of the Office of the Victorian Information Commissioner".

30Section 49I substituted

For section 49I of the Principal Act substitute—

"49I   Agency or Minister must assist Information Commissioner

The agency or Minister that made the decision that is the subject of the review must assist the Information Commissioner to undertake the review.".

31Effect of delay by Information Commissioner in relation to requests

(1)In the heading to section 49J of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)In section 49J of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(3)In section 49J(1)(a) of the Principal Act, after "agency" insert "or Minister".

(4)For section 49J(3) of the Principal Act substitute—

"(3)In this section the required period is—

(a)30 days after the application for review by the Information Commissioner is received; or

(b)if that period is extended or further extended, that period as extended.

(4)The Information Commissioner may extend the period referred to in subsection (3)(a) by agreement in writing with the applicant, any number of times.

(5)The period referred to in subsection (3)(a) cannot be extended or further extended under this section if that period has expired.".

32Preliminary inquiries

In section 49K of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

33New sections 49KA and 49KB inserted

After section 49K of the Principal Act insert—

"49KA   Power to require a further search for documents

(1)This section applies if the Information Commissioner reasonably believes that an agency or Minister has failed to undertake an adequate search for documents that relate to a decision that is the subject of a review under this Division.

(2)During the review, the Information Commissioner may give a notice to an agency or Minister to require the agency or Minister—

(a)in the case of a decision of an agency under section 25A(1) or 25A(5), to process or identify a reasonable sample of the documents to which the request relates; or

(b)in any other case, to further search or to cause a further search to be undertaken for documents in the possession, custody or control of the agency or Minister.

(3)The agency or Minister must comply

with a requirement of the Information Commissioner under subsection (2) within the reasonable period stated in the notice, being not less than 10 business days.

(4)The Information Commissioner, on request of the agency or Minister, may extend the time for complying with a notice under subsection (2).

(5)The Information Commissioner may specify any reasonable means or method for undertaking a further search under subsection (2)(b).

Example

The Information Commissioner may specify that the agency is required to undertake a search of the agency's email system by searching specified keywords.

(6)The required period for completing the review under section 49J is suspended from the time the Information Commissioner gives a notice under subsection (2).

(7)The agency or Minister must notify the Information Commissioner within 3 business days after the end of the period referred to in subsection (2) or (3) of the following information—

(a)in the case of a notice under subsection (2)(a)—

(i)that the agency or Minister has processed or identified a reasonable sample of the documents; and

(ii)the nature of the documents processed or identified; and

(iii)whether the decision to refuse to grant access under section 25A(1) or 25A(5) is likely to be upheld;

(b)in the case of a notice under subsection (2)(b), that the agency or Minister has completed the further search and whether or not any further documents have been located.

(8)After receiving a notification under subsection (7), the Information Commissioner may decide to refer the matter back to the agency or Minister in accordance with section 49L.

49KBInformation Commissioner may issue notice to produce or attend

During a review under this Division, the Information Commissioner may issue a notice to produce or attend on a principal officer on behalf of an agency or Minister, in accordance with Part VIC.".

34Referral back to agency or Minister for reconsideration

(1)In the heading to section 49L of the Principal Act, after "agency" insert "or Minister".

(2)In section 49L of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(3)For section 49L(1) of the Principal Act substitute—

"(1)This section applies if—

(a)the Information Commissioner has done any of the following—

(i)made preliminary inquiries under section 49K;

(ii)required an agency or Minister to conduct a sampling search under section 49KA(2)(a), or a further search under section 49KA(2)(b);

(iii)issued a notice to produce or attend; and

(b)it appears to the Information Commissioner reasonably likely that the agency or Minister will be able to make a fresh decision in a way that is satisfactory to the applicant and in accordance with law.

(1A)The Information Commissioner, with the agreement of the applicant, may refer the matter that is the subject of the application back to the agency or Minister for reconsideration in accordance with this section.".

35Reconsideration at agency's or Minister's own initiative

(1)In the heading to section 49M of the Principal Act, after "agency's" insert "or Minister's".

(2)In section 49M(1) of the Principal Act, after "agency's" insert "or Minister's".

(3)In section 49M of the Principal Act—

(a)for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner";

(b)after "agency" (wherever occurring) insert "or Minister".

(4)After section 49M(8) of the Principal Act insert—

"(9)This section applies whether or not the Information Commissioner gives a notice under section 49KA or issues a notice to produce or attend.".

36Procedure after reconsideration under section 49L or 49M

(1)In section 49MA of the Principal Act—

(a)for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner";

(b)after "agency" (where twice occurring) insert "or Minister".

(2)For section 49MA(2) of the Principal Act substitute—

"(2)Subject to subsection (4), if the applicant does not agree with the fresh decision the Information Commissioner must complete the review on the basis of the fresh decision within—

(a)30 days after the date on which the applicant advises the Commissioner under section 49L(6) or 49M(6) that the applicant does not agree with the fresh decision; or

(b)if that period is extended or further extended, that period as extended.".

(3)For section 49MA(3) of the Principal Act substitute—

"(3)Subject to subsection (4), if the agency does not make a fresh decision under section 49L or 49M within the period referred to in section 49L(2) or 49M(2) the Information Commissioner must recommence the review and complete the review within—

(a)14 days after the earlier of—

(i)the date on which the notice under section 49L(4) or 49M(4) is given; or

(ii)the end of the period within which the notice under section 49L(4) or 49M(4) is required to be given; or

(b)if that period is extended or further extended, that period as extended. ".

(4)In section 49MA(4) of the Principal Act, for "section 28 or 29A" substitute "section 29A".

(5)After section 49MA(4) of the Principal Act insert—

"(5)The Information Commissioner may extend a period referred to in subsection (2)(a) or (3)(a) by agreement in writing with the applicant, any number of times.

(6)A period referred to in subsection (2)(a) or (3)(a) cannot be extended or further extended under this section if that period has expired.".

37Information Commissioner may facilitate a negotiated agreement

(1)In the heading to section 49N of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)In section 49N of the Principal Act, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

38Referral of matter to a relevant authority

(1)In section 49O of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)For section 49O(1) of the Principal Act substitute—

"(1)If the Information Commissioner identifies a matter arising out of or in relation to a review as being within the jurisdiction of a relevant authority, the Information Commissioner, after consulting with the relevant authority, may refer the matter to the relevant authority if the Information Commissioner considers it appropriate to do so.".

(3)For section 49O(2) of the Principal Act substitute—

"(2)If the Information Commissioner identifies a matter arising out of or in relation to a review as being within the jurisdiction of the Information Commissioner under the Privacy and Data Protection Act 2014, the Information Commissioner, may decide to deal with the matter under that Act if the Commissioner considers it appropriate to do so.".

(4)In section 49O(3) of the Principal Act, for "The referral of a matter under this section" substitute "The referral of, or decision in relation to, a matter under this section".

(5)In section 49O(4) of the Principal Act, for

"of a matter" substitute "or a decision".

39Review of decisions under section 25A(5)

(1)In section 49OA of the Principal Act—

(a)after "agency" (where twice occurring) insert "or Minister";

(b)for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)For section 49OA(2) of the Principal Act substitute—

"(2)Nothing in subsection (1) prevents the Information Commissioner giving a notice under section 49KA(2)(a).".

40Decision on review

(1)In section 49P of the Principal Act—

(a)for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner";

(b)after "agency" (wherever occurring) insert "or Minister".

(2)For section 49P(4) of the Principal Act substitute—

"(4)A decision requiring an agency or Minister to release a document does not take effect until—

(a)if the decision requires release of a document of a kind referred to in section 33, 34 or 35 in respect of which a person has a right of review under section 50—

(i)60 days after notice of the decision is given; or

(ii)if an application is made to the Tribunal within that 60 day period, until a decision is made on review; or

(b)if the decision requires release of any other document or a document to the extent that it does not include information of a kind referred to in section 33, 34 or 35 in respect of which a person has a right of review under section 50—

(i)14 days after notice of the decision is given; or

(ii)if an application is made to the Tribunal within that 14 day period, until a decision is made on review.".

(3)In section 49P(5) of the Principal Act—

(a)for "section 33 or 34" substitute "section 33, 34 or 35";

(b)for "section 50(3) or (3A)" substitute "section 50(3), (3A) or (3B)".

(4)Section 49P(6) of the Principal Act and the note at the foot of that section are repealed.

41Conciliation by Health Services Commissioner

(1)In section 49Q(1) of the Principal Act, after "agency" insert "or Minister".

(2)In section 49Q(6) of the Principal Act—

(a)in paragraph (b), after "agency" (where second occurring) insert "or the Minister";

(b)in paragraph (c), for "Freedom of Information Commissioner" substitute "Information Commissioner".

42Applications for review by the Tribunal

(1)In section 50 of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)In section 50(1) of the Principal Act—

(a)in paragraph (d), after "agency" insert "or Minister";

(b)for paragraph (e) substitute—

"(e)a decision of an agency or a Minister refusing to grant access to a document that is claimed to be exempt under section 29A;

(ea)a decision of an agency or a Minister refusing to grant access to a document or refusing to amend a document, or a decision of a principal officer refusing to specify a document in a statement, that is taken to have been made under section 53;";

(c)paragraphs (a) and (f) are repealed.

(3)For section 50(3) of the Principal Act substitute—

"(3)Subject to subsection (3AC), a person who is the subject of information in a document referred to in section 33(3) (or in the case of a deceased person, that person's next of kin) may apply to the Tribunal for a review of a decision to disclose that document.".

(4)For section 50(3A) of the Principal Act substitute—

"(3A)Subject to subsection (3AC), a business, commercial or financial undertaking may apply to the Tribunal for a review of a decision to disclose a document referred to in section 34.

(3AB)Subject to subsection (3AC), a person who communicated information or a matter in confidence, or on whose behalf information or a matter was communicated (or in the case of a deceased person, that person's next of kin), may apply to the Tribunal for a review of a decision to disclose a document referred to in section 35(1).

(3AC)A person or undertaking may not apply for review under subsection (3), (3A) or (3AB) if that person or undertaking consented to the disclosure of the document, and the document was disclosed in accordance with that consent.

Note

A person or undertaking may consent to disclosure of a document subject to the deletion of certain information in that document—see sections 33(2B), 34(3) and 35(1A).".

(5)In section 50(3C), (3D), (3F), (3FA) and (3G) of the Principal Act, after "agency" (where twice occurring) insert "or Minister".

(6)In section 50(3H) of the Principal Act, for "or (3A)" substitute ", (3A) or (3AB)".

(7)In section 50(4) of the Principal Act, after "section 31(3)," insert "section 31A,".

(8)In section 50(5) of the Principal Act, for "section 28(4)" substitute "section 61ZA(2)".

43Information Commissioner may be called on to assist Tribunal

(1)In the heading to section 51 of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)After section 51(1) of the Principal Act insert—

"(1A)If a review under section 50 relates to a decision made by the Public Access Deputy Commissioner, the Tribunal, on its own motion or on the application of the Deputy Commissioner, may call on the Deputy Commissioner to assist the Tribunal in respect of the review.".

(3)In section 51 of the Principal Act—

(a)for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner";

(b)for "office of the Freedom of Information Commissioner" substitute "Office of the Victorian Information Commissioner".

44Time for applying for review

(1)In section 52 of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)In section 52(1) of the Principal Act, for "section 50(1)(a), (e), (f) or (g)" substitute "section 50(1)(e) or (g)".

(3)In section 52(3) of the Principal Act, for

"section 50(3) or (3A)" substitute "section 50(3), (3A) or (3AB)".

(4)In section 52(9) of the Principal Act—

(a)for "60 days" substitute "14 days";

(b)after "agency" insert "or Minister".

45Reviews where decisions delayed

(1)In section 53(1)(b) of the Principal Act, for "section 21" substitute "section 21(1)".

(2)In section 53(1) of the Principal Act, for the words and expressions commencing "the principal officer" and ending at the end of the subsection substitute "for the purposes of making an application to the Tribunal under section 50(1)(ea), the agency or Minister is taken to have made a decision refusing to grant access to the document in accordance with the request or, in the case of a request under section 39, refusing to amend the document in accordance with the request, on the last day of the relevant period.".

(3)After section 53(1) of the Principal Act insert—

"(2)Subject to this section, where—

(a)a notice has been served on the principal officer under section 12(1); and

(b)the time period provided in section 12(2) has elapsed; and

(c)notice of the principal officer's decision has not been received by the applicant—

for the purposes of making an application to the Tribunal under section 50(1)(ea), the principal officer is taken to have made a decision refusing to specify the document in a statement on the last day of that period.".

(4)In section 53(5) of the Principal Act, for

", other than a decision to grant, without deferment, access to the document in accordance with the request, is given," substitute "is given, subject to subsection (5A),".

(5)After section 53(5) of the Principal Act insert—

"(5A)Subsection (5) does not apply to—

(a)a decision of the agency or Minister to grant access to the document without deferment; or

(b)in the case of a request under section 39, a decision of the agency or Minister to amend the document in accordance with the request; or

(c)in the case of a notice under section 12(1), a decision of the principal officer to specify the document in a statement.".

(6)Section 53(8) of the Principal Act is repealed.

46Procedure where Tribunal determines that there do not exist reasonable grounds for claim under section 29A

In section 53AA(6) and (7) of the Principal Act, for "31(3) or" substitute "31(3), 31A or".

47Notification of reviews regarding documents affecting personal privacy

In section 53A(1) of the Principal Act—

(a)for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner";

(b)in paragraph (c), for "section 50(1)(a), (b) or (d)" substitute "section 50(1)(b) or (d)".

48Inspection of exempt documents by Tribunal

In section 56(5) of the Principal Act, for "or section 31" insert "section 31 or section 31A".

49Disciplinary action

In section 61(2) of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

50Complaints

(1)In section 61A(1) of the Principal Act—

(a)after paragraph (a) insert—

"(ab)an action taken or failed to be taken by a principal officer in the performance or purported performance of the principal officer's functions and obligations under Part IB or II;";

(b)after paragraph (b) insert—

"(ba)a decision by a Minister that a document does not exist or cannot be located;";

(c)in paragraph (e), for "section 34." substitute "section 34;";

(d)after paragraph (e) insert—

"(f)a failure by a Minister to comply with Ministerial professional standards.".

(2)In section 61A(2)(c) and (5) of the Principal Act, for "agency" substitute "agency, principal officer".

(3)In section 61A of the Principal Act, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

51Section 61AB repealed

Section 61AB of the Principal Act is repealed.

52Information Commissioner may accept or decline to deal with complaint

(1)In the heading to section 61B of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2)After section 61B(1)(a)(i) of the Principal Act insert—

"(ia)a matter referred to in section 61A(1)(ab);".

(3)After section 61B(2)(a) of the Principal Act insert—

"(ab)the action or failure by a principal officer was not in the performance by the principal officer of the principal officer's functions or obligations under Part IB or II;".

(4)In section 61B of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

53Referral of complaint to another body

(1)In section 61C of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)After section 61C(2) of the Principal Act insert—

"(2A)The Information Commissioner may communicate to a person or body to whom or which a complaint is referred any information obtained or received in the course or as a result of the exercise of the functions of the Information Commissioner under this Part, being information relating to a complaint referred to the person or body.

(2B)The Information Commissioner may decide to deal with a complaint as if it were a complaint made under the Privacy and Data Protection Act 2014 if the Information Commissioner considers that the complaint could be dealt with more effectively or appropriately under that Act.".

(3)In section 61C(3) of the Principal Act, after "section," insert "or decides to deal with the complaint under the Privacy and Data Protection Act 2014,".

54Notice of decision to investigate complaint

In section 61D of the Principal Act, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

55Section 61E substituted

For section 61E of the Principal Act substitute—

"61E   Agency or Minister to co-operate with Information Commissioner

An agency, principal officer or Minister to which or whom a complaint relates must co‑operate with the Information Commissioner in dealing with the complaint.".

56Complaint must be dealt with in private

In section 61F of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

57Preliminary inquiries and consultation

In section 61G(1) of the Principal Act—

(a)for "Freedom of Information Commissioner" substitute "Information Commissioner";

(b)in paragraph (b), before "Minister" insert "principal officer or".

(2)Section 61G(2) of the Principal Act is repealed.

58New sections 61GA and 61GB inserted

After section 61G of the Principal Act insert—

"61GA   Power to require a further search for documents

(1)If, when dealing with a complaint under this Part, the Information Commissioner reasonably believes that an agency, principal officer or Minister has failed to undertake an adequate search for documents that relate to a decision that is the subject of the complaint, the Information Commissioner may give a notice to an agency, principal officer of an agency or Minister to require that agency, principal officer or Minister—

(a)in the case of a decision of an agency or Minister under section 25A(1) or (5), to process or identify a reasonable sample of the documents to which the request relates; or

(b)in any other case, to further search or to cause a further search to be undertaken for documents in the possession, custody or control of the agency or Minister.

(2)The agency, principal officer or Minister must comply with a requirement of the Information Commissioner under subsection (1) within the reasonable period stated in the notice, being not less than 10 business days.

(3)The Information Commissioner, on request of the agency or Minister, may extend the time for complying with a notice under subsection (1).

(4)The Information Commissioner may specify any reasonable means or method for undertaking a further search under subsection (1)(b).

Example

The Information Commissioner may specify that the agency is required to undertake a search of the agency's email system by searching specified keywords.

61GBInformal resolution

If the Information Commissioner determines that a complaint can be resolved informally, the Information Commissioner must take reasonable steps to resolve the complaint.".

59Conciliation of complaint

(1)In section 61H(2) of the Principal Act, before "Minister" insert "principal officer or".

(2)In section 61H of the Principal Act, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

60Procedure for dealing with complaint if conciliation fails

(1)In section 61I(2) of the Principal Act, before "Minister" insert "principal officer or".

(2)In section 61I of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(3)For section 61I(4) of the Principal Act substitute—

"(4)If, after considering any submissions, the Information Commissioner considers that the complaint is unable to be dealt with in accordance with subsection (3) and that further information is required in order for the Information Commissioner to deal with the complaint, the Commissioner may serve on a principal officer, on the officer's own behalf or on behalf of an agency, or a Minister a notice to produce or attend, in accordance with Part VIC.".

(4)In section 61I(5) of the Principal Act, for "person referred to in section 6J" substitute "member of staff of the Office of the Victorian Information Commissioner".

61Section 61J repealed

Section 61J of the Principal Act is repealed.

62Section 61K repealed

Section 61K of the Principal Act is repealed.

63Outcome of complaint

(1)In section 61L of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(2)In section 61L(1) and (3) of the Principal Act, after "agency" (wherever occurring) insert
", the principal officer".

(3)In section 61L(5), (6) and (7) of the Principal Act, after "agency," (wherever occurring) insert "principal officer,".

(4)Section 61L(9) of the Principal Act and the note at the foot of that section are repealed.

64Section 61M substituted

For section 61M of the Principal Act substitute—

"61M   Complaints notified or referred by other bodies

The Information Commissioner may treat a complaint—

(a)notified by the Ombudsman under section 16G of the Ombudsman Act 1973; or

(b)referred by the Health Complaints Commissioner under section 51 of the Health Records Act 2001—

as if it were a complaint made under section 61A.".

65Section 61N repealed

Section 61N of the Principal Act is repealed.

66New Parts VIB and VIC inserted

After Part VIA of the Freedom of Information Act 1982 insert—

"Part VIB—Investigations

Division 1—Investigations

61OInformation Commissioner may conduct investigation

(1)The Information Commissioner may, on the Commissioner's own motion, conduct an investigation in respect of—

(a)the performance or exercise of a function or obligation, under this Act, by an agency or principal officer; or

(a)the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982; and

(b)the Public Access Deputy Commissioner; and

(c)the Privacy and Data Protection Deputy Commissioner; and

(d)a person referred to in section 6Q of the Freedom of Information Act 1982;

Privacy and Data Protection Deputy Commissioner means the Privacy and Data Protection Deputy Commissioner appointed under section 8H of the Privacy and Data Protection Act 2014;

Public Access Deputy Commissioner means the Public Access Deputy Commissioner appointed under section 6D of the Freedom of Information Act 1982;".

108Objects of Act

In section 5 of the Victorian Inspectorate Act 2011—

(a)in paragraph (f), for "Examiners." substitute "Examiners;";

(b)after paragraph (f) insert—

"(g)provide for the independent oversight of officers of the Office of the Victorian Information Commissioner.".

109Functions of the Victorian Inspectorate

After section 11(4) of the Victorian Inspectorate Act 2011 insert—

"(5)Without limiting the generality of subsection (1), the Victorian Inspectorate has the following functions in respect of officers of the Office of the Victorian Information Commissioner—

(a)to monitor—

(i)the exercise of coercive powers by officers of the Office of the Victorian Information Commissioner; and

(ii)compliance by an officer of the Office of the Victorian Information Commissioner with procedural fairness requirements in the performance of functions under the Freedom of Information Act 1982 or any other Act, including in the conduct of investigations and the making of reports under the Freedom of Information Act 1982 or any other Act; and

(iii)compliance by an officer of the Office of the Victorian Information Commissioner with procedural fairness requirements in the performance of functions under the Privacy and Data Protection Act 2014 or any other Act, including in the conduct of investigations and the making of reports under the Privacy and Data Protection Act 2014 or any other Act;

(b)to receive complaints in accordance with this Act about the conduct of officers of the Office of the Victorian Information Commissioner;

(c)to investigate and assess in accordance with this Act the conduct of officers of the Office of the Victorian Information Commissioner;

(d)to report on, and make recommendations as a result of, the performance of its functions under paragraphs (a) to (c).".

110Delegation

After section 27(1)(l) of the Victorian Inspectorate Act 2011 insert—

"(la)the power to authorise a Victorian Inspectorate Officer to enter premises of the Office of the Victorian Information Commissioner under section 63(9); or".

111New Part 5A inserted

After Part 5 of the Victorian Inspectorate Act 2011 insert—

"Part 5A—Matters to be reported to the Victorian Inspectorate by the Information Commissioner

42ACoercive questioning

(1)The Victorian Inspectorate may require the Information Commissioner to provide a written report specifying, in relation to an appearance by a person before an officer of the Office of the Victorian Information Commissioner in an investigation, complaint or review under the Freedom of Information Act 1982, or a complaint or a decision to issue a compliance notice under the Privacy and Data Protection Act 2014 (whether in response to a notice or otherwise)—

(a)the name of the person who appeared; and

(b)the reasons for the person's appearance; and

(c)the place and time of the person's appearance; and

(d)the relevance of the appearance to the purpose of the investigation; and

(e)the name of any other person who was present during the appearance in an official capacity under any Act; and

(f)any other prescribed matter.

(2)The Information Commissioner must comply with a requirement under subsection (1) as soon as possible after it is made.".

112Complaints

After section 43(8) of the Victorian Inspectorate Act 2011 insert—

"(9)A person may make a complaint to the Victorian Inspectorate about the conduct of an officer of the Office of the Victorian Information Commissioner in respect of—

(a)the exercise or purported exercise of coercive powers in relation to any matter; or

(b)the compliance with procedural fairness requirements in the performance of functions under the Freedom of Information Act 1982, the Privacy and Data Protection Act 2014 or any other Act, including in the conduct of reviews and investigations and the making of reports and

recommendations under the Freedom of Information Act 1982 or the Privacy and Data Protection Act 2014.

(10)Without limiting the generality of subsection (9), a complaint may be made on the basis that specified conduct was—

(a)contrary to law; or

(b)unreasonable, unjust, oppressive or improperly discriminatory; or

(c)based on improper motives; or

(d)an abuse of power; or

(e)otherwise improper.".

113Investigation of complaint

(1)After section 44(6) of the Victorian Inspectorate Act 2011 insert—

"(6A)If the Victorian Inspectorate decides to investigate a complaint referred to in section 43(9), the Victorian Inspectorate must notify the Information Commissioner and either the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner (as the case applies) in writing unless the Victorian Inspectorate reasonably believes that giving notice of the investigation could prejudice the investigation of the complaint.".

(2)In section 44(7) of the Victorian Inspectorate Act 2011, for "and (6)" substitute
", (6) and (6A)".

114Own motion investigation

After section 46(4) of the Victorian Inspectorate Act 2011 insert—

"(5)The Victorian Inspectorate, on its own motion, may investigate the conduct of an officer of the Office of the Victorian Information Commissioner in respect of—

(a)the exercise or purported exercise of coercive powers in relation to any matter; or

(b)the compliance with procedural fairness requirements in the performance of functions under the Freedom of Information Act 1982, or any other Act, including in the conduct of reviews and investigations and the making of reports and recommendations under the Freedom of Information Act 1982 or any other Act; or

(c)the compliance with procedural fairness requirements in the performance of functions under the Privacy and Data Protection Act 2014 or any other Act, including in the conduct of reviews and investigations and the making of reports and recommendations under the Privacy and Data Protection Act 2014 or any other Act.".

115Conduct of the investigation

After section 47(4) of the Victorian Inspectorate Act 2011 insert—

"(4A)For the purposes of conducting an investigation in relation to an officer of the Office of the Victorian Information Commissioner, the Victorian Inspectorate—

(a)may investigate any aspect of—

(i)the operations of the Office of the Victorian Information Commissioner; or

(ii)any conduct of an officer of the Office of the Victorian Information Commissioner; and

(b)has full and free access to all the records of the Office of the Victorian Information Commissioner and may copy any record, or part of any record of the Office of the Victorian Information Commissioner; and

(c)may require an officer within the Office of the Victorian Information Commissioner to give the Victorian Inspectorate any information in that officer's possession which the Victorian Inspectorate considers is relevant to the investigation; and

(d)may require an officer within the Office of the Victorian Information Commissioner to attend before the Victorian Inspectorate to answer questions or to produce documents relating to—

(i)operations of the Office of the Victorian Information Commissioner; or

(ii)the conduct of any officer of the Office of the Victorian Information Commissioner.".

116Requirement to provide assistance

After section 48(4) of the Victorian Inspectorate Act 2011 insert—

"(5)The Information Commissioner must—

(a)give any assistance; and

(b)ensure that officers of the Office of the Victorian Information Commissioner give any assistance—

to the Victorian Inspectorate which the Victorian Inspectorate reasonably requires to enable the Victorian Inspectorate to conduct any investigation in relation to an officer of the Office of the Victorian Information Commissioner under this Part.".

117Conduct of inquiry

(1)In section 50(e) of the Victorian Inspectorate Act 2011, for "section 63." substitute "section 63;".

(2)After section 50(e) of the Victorian Inspectorate Act 2011 insert—

"(f)may, after notifying the Information Commissioner, enter and search premises of the Office of the Victorian Information Commissioner and inspect, copy and seize any document or thing in accordance with section 63.".

118Content and form of witness summons

(1)After section 54(4)(g)(vi) of the Victorian Inspectorate Act 2011 insert—

"(vii)if the person is an officer of the Office of the Victorian Information Commissioner, neither the Information Commissioner nor the Office of the Victorian Information Commissioner is entitled to assert any privilege;".

(2)In section 54(4)(i) of the Victorian Inspectorate Act 2011, for "or a member of Victoria Police personnel" substitute ", an officer of the Office of the Victorian Information Commissioner or a member of Victoria Police personnel".

119Legal representation of witnesses and other persons

(1)In section 58(2)(c) and (d) of the Victorian Inspectorate Act 2011—

(a)for "complaint or matter" substitute "complaint, review or matter";

(b)for "or the Victoria Inspectorate" substitute ", the Victorian Inspectorate or the Office of the Victorian Information Commissioner".

(2)In section 58(8)(c) and (d) of the Victorian Inspectorate Act 2011—

(a)for "complaint or matter" substitute "complaint, review or matter";

(b)for "or the Victoria Inspectorate" substitute ", the Victorian Inspectorate or the Office of the Victorian Information Commissioner".

120Powers of entry, inspection and seizure

After section 63(8) of the Victorian Inspectorate Act 2011 insert—

"(9)Subject to subsection (10), if the Victorian Inspectorate considers on reasonable grounds there are documents that are relevant to an inquiry in relation to an officer of the Office of the Victorian Information Commissioner which are on the premises of the Office of the Victorian Information Commissioner, the Victorian Inspectorate may authorise a Victorian Inspectorate Officer, with such assistance as the Victorian Inspectorate Officer thinks fit, and after notifying the Information Commissioner to—

(a)enter those premises at any time; and

(b)search those premises for documents that are relevant to the inquiry; and

(c)inspect or copy any document found at those premises; and

(d)seize any document found at those premises that is relevant to the inquiry and keep it until the Victorian Inspectorate has completed its inquiry.

(10)The Victorian Inspectorate must not exercise the power conferred by subsection (9) unless the Victorian Inspectorate considers on reasonable grounds that the officer of the Office of the Victorian Information Commissioner has wilfully failed to give assistance in accordance with section 48(5).".

121Privileges and secrecy generally

After section 68(10) of the Victorian Inspectorate Act 2011 insert—

"(11)If a person is an officer of the Office of the Victorian Information Commissioner, any obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or provided to the person in the person's service as an officer of the Office of the Victorian Information Commissioner imposed by any enactment or any rule of law—

(a)is overridden; and

(b)does not apply to the disclosure of information under this Part.

(12)If a person is an officer of the Office of the Victorian Information Commissioner—

(a)neither the Information Commissioner nor the Office of the Victorian Information Commissioner is entitled to assert any privilege in relation to any requirement for that person to produce a document or give information under this Part; and

(b)any privilege referred to in

paragraph (a) is abrogated.".

122New sections 85A and 85B inserted

After section 85 of the Victorian Inspectorate Act 2011 insert—

"85A   Recommendation to the Information Commissioner

(1)The Victorian Inspectorate may at any time make recommendations to the Information Commissioner in relation to any action that the Victorian Inspectorate considers should be taken.

(2)Without limiting subsection (1), the Victorian Inspectorate may recommend taking action—

(a)to prevent specified conduct from continuing or occurring in the future; and

(b)to remedy any harm or loss arising from the conduct of any officer of the Office of the Victorian Information Commissioner.

(3)The Victorian Inspectorate may at any time make recommendations to the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner—

(a)to prevent specified conduct from continuing or occurring in the future; or

(b)in relation to any action that the Victorian Inspectorate considers should be taken.

(4)Without limiting subsection (3), the Victorian Inspectorate may recommend taking action to remedy any harm or loss arising from the conduct of the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner.

(5)A recommendation to the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner which is not contained in a report must be made in private.

(6)Subsection (5) does not limit the power of the Victorian Inspectorate to make a public recommendation if the Victorian Inspectorate considers that the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner has failed to take appropriate action in relation to the recommendation.

(7)The Victorian Inspectorate may require the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner to give a report to the Victorian Inspectorate, within a reasonable specified time, stating—

(a)whether or not the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner has taken, or intends to take, action recommended by the Victorian Inspectorate; and

(b)if the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner has not taken the recommended action, or does not intend to take the recommended action, the reason for not taking or intending to take the action.

(8)The Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner must comply with a requirement of the Victorian Inspectorate under subsection (7).

85BRecommendation for further action in respect of officers of the Office of the Victorian Information Commissioner

(1)The Victorian Inspectorate may at any time recommend in private to the Information Commissioner the undertaking of a disciplinary process or action against any officer of the Office of the Victorian Information Commissioner other than the Information Commissioner.

(2)Subsection (1) does not limit the power of the Victorian Inspectorate to make a public recommendation if the Victorian Inspectorate considers that the Information Commissioner has failed to take appropriate action in relation to the recommendation.

(3)If the Victorian Inspectorate is satisfied that any conduct of any officer of the Office of the Victorian Information Commissioner which has been the subject of a complaint, investigation or other finding should be the subject of any further investigatory or enforcement action, the Victorian Inspectorate may make a recommendation to that effect to any or all of the following—

(a)the Chief Commissioner of Police;

(b)the Director of Public Prosecutions;

(c)the Australian Federal Police;

(d)the IBAC;

(e)the Victorian WorkCover Authority;

(f)any other person or body prescribed for the purposes of this subsection.".

123Recommendations must not include information likely to identify person who makes an assessable disclosure

In section 86(1) of the Victorian Inspectorate Act 2011, for "or 85" substitute ", 85, 85A or 85B(1)".

124Advice to a complainant

After section 88(3)(i) of the Victorian Inspectorate Act 2011 insert—

"(ia)prejudice an investigation by the Office of the Victorian Information Commissioner; or".

125Outcome of investigation

After section 89(4) of the Victorian Inspectorate Act 2011 insert—

"(5)After conducting an investigation in relation to an officer of the Office of the Victorian Information Commissioner, the Victorian Inspectorate may—

(a)make a recommendation to the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner in accordance with section 85A;

(b)make a recommendation to the Information Commissioner in accordance with section 85B;

(c)make a recommendation to the Chief Commissioner of Police in accordance with section 85B;

(d)make a recommendation to the Director of Public Prosecutions in accordance with section 85B;

(e)make a recommendation to the Australian Federal Police in accordance with section 85B;

(f)make a recommendation to the IBAC in accordance with section 85B;

(g)make a recommendation to the Victorian WorkCover Authority in accordance with section 85B;

(h)make a recommendation (in accordance with section 85B) to a person or body prescribed for the purposes of section 85B(3)(f);

(i)transmit a report under section 87;

(j)provide advice to a complainant in accordance with section 88;

(k)do any combination or all of the matters referred to in paragraphs (a) to (j);

(l)determine to make no findings or take no action following the investigation.".

126Matters to be included in annual report

(1)In section 91(1)(p) of the Victorian Inspectorate Act 2011, for "Monitors." substitute "Monitors;".

(2)After section 91(1)(p) of the Victorian Inspectorate Act 2011 insert—

"(q)details of the results of the Victorian Inspectorate's monitoring of—

(i)the exercise of coercive powers by officers of the Office of the Victorian Information Commissioner; and

(ii)compliance by officers of the Office of the Victorian Information Commissioner with procedural fairness requirements in the performance of functions under the Freedom of Information Act 1982 or any other Act, including in the conduct of investigations and the making of reports under the Freedom of Information Act 1982 or any other Act; and

(iii)compliance by officers of the Office of the Victorian Information Commissioner with procedural fairness requirements in the performance of functions under the Privacy and Data Protection Act 2014 or any other Act, including in the conduct of investigations and the making of reports under the Privacy and Data Protection Act 2014 or any other Act;

(r)details of the comprehensiveness and adequacy of reports made to the Victorian Inspectorate by the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner;

(s)details of the extent to which action recommended by the Victorian Inspectorate to be taken by the Information Commissioner, the Privacy and Data Protection Deputy Commissioner or the Public Access Deputy Commissioner has been taken.".

127Exemption from Freedom of Information Act 1982

In section 102(2) of the Victorian Inspectorate Act 2011, in the definition of relevant person or body—

(a)in paragraph (m), for "Examiner." substitute "Examiner;";

(b)after paragraph (m) insert—

"(n)the Office of the Victorian Information Commissioner or any officer of the Office of the Victorian Information Commissioner.".

Part 5—Amendment of Independent Broad-based Anti-corruption Commission Act 2011 and Parliamentary Committees Act 2003

Division 1—Independent Broad-based Anti‑corruption Commission Act 2011

128Definitions

In section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011, in the definition of integrity body for paragraph (b) substitute—

"(b)the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014;".

129Section 194 substituted

For section 194 of the Independent Broad-based Anti-corruption Commission Act 2011 substitute—

"194 Exemption from Freedom of Information Act 1982

(1)The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to—

(a)a recommendation made by the IBAC under this Act; or

(b)an investigation conducted under this Act; or

(c)a report, including a draft report, on an investigation conducted under this Act.

(2)The Freedom of Information Act 1982 does not apply to a document that is in the possession of the IBAC to the extent to which the document discloses information that relates to—

(a)a complaint; or

(b)information received by the IBAC under section 56; or

(c)a notification made to the IBAC under a mandatory notification provision; or

(d)a preliminary inquiry.

(3)In this section, document has the same meaning as it has in the Freedom of Information Act 1982.".

Division 2—Parliamentary Committees Act 2003

130Definitions

In section 3 of the Parliamentary Committees Act 2003 insert the following definitions—

"Information Commissioner means the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982;

Officeof the Victorian Information Commissioner means the Office of the Victorian Information Commissioner established under section 6B of the Freedom of Information Act 1982;

officer of the Victorian Information Commissioner means any of the following persons—

(a)the Public Access Deputy Commissioner;

(b)the Privacy and Data Protection Deputy Commissioner appointed under section 8H of the Privacy and Data Protection Act 2014;

(c)a person to whom a function has been delegated under section 6R of the Freedom of Information Act 1982 or section 8O of the Privacy and Data Protection Act 2014;

Public Access Deputy Commissioner means the Public Access Deputy Commissioner appointed under section 6D of the Freedom of Information Act 1982;".

131Accountability and Oversight Committee

(1)In section 6A(1) of the Parliamentary Committees Act 2003—

(a)in paragraphs (a), (c)(i) and (d), for "Freedom of Information Commissioner" substitute "Information Commissioner";

(b)for paragraph (b) substitute—

"(b)to consider and investigate complaints concerning the Information Commissioner and the operation of the Office of the Victorian Information Commissioner; and";

(c)for paragraph (c)(ii) substitute—

"(ii)any complaint concerning the Information Commissioner and the operation of the Office of the Victorian Information Commissioner—".

(2)In section 6A(2) of the Parliamentary Committees Act 2003—

(a)for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner or Public Access Deputy Commissioner";

(b)after paragraph (b) insert—

"(ba)reconsider any findings in relation to an investigation under the Freedom of Information Act 1982; or

(bb)reconsider the making of a public interest determination under the Privacy and Data Protection Act 2014; or

(bc)reconsider the approval of an information usage arrangement under the Privacy and Data Protection Act 2014; or

(bd)reconsider a decision to serve a compliance notice under the Privacy and Data Protection Act 2014; or".

132New Part 10 inserted

After Part 9 of the Parliamentary Committees Act 2003 insert—

"Part 10—Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017

69Functions relating to the Freedom of Information Commissioner

(1)On and after the commencement of Division 2 of Part 5 of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017, the Accountability and Oversight Committee may continue to carry out its functions under section 6A(1)(a) to (d) in relation to the Freedom of Information Commissioner and the office of the Freedom of Information Commissioner as if that Division had not been enacted.".

Part 6—Consequential amendments to other Acts

Division 1—Health Complaints Act 2016

Division 2—Amendment of Principal Act

Division 3—Judicial Commission of Victoria Act 2016

133Judicial Commission of Victoria Act 2016

For item 2 of Schedule 1 to the Judicial Commission of Victoria Act 2016 substitute—

"2The Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014;".

Division 4—Amendments to other Acts

134Consequential amendments to other Acts

On the coming into operation of an item in Schedule 1, the Act specified in the heading to that item is amended as set out in the item.

Part 7—Repeal of amending Act

135Repeal of amending Act

This Act is repealed on 1 September 2018.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

Schedule 1—Consequential amendments

1Audit Act 1994

For section 19C(2)(f) substitute—

"(f)the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014;".

2City of Melbourne Act 2001

2.1In section 3—

(a)the definition of Commissioner for Privacy and Data Protection is repealed;

(b)insert the following definition—

"Information Commissioner means the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection
Act 2014;".

2.2In section 11G, for "Commissioner for Privacy and Data Protection" (wherever occurring) substitute "Information Commissioner".

3Commission for Children and Young People Act 2012

For section 53(1)(f) substitute—

"(f)the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014;".

4Corrections Act 1986

4.1In section 47(1)(m)—

(a)for paragraph (x) substitute—

"(x)the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982;";

(b)paragraph (xii) is repealed;

(c)in paragraph (xiv) omit ", (xii)".

4.2In section 47B(2)—

(a)for paragraph (e) substitute—

"(e)the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982;";

(b)paragraph (g) is repealed;

(c)in paragraph (i) omit ", (g)".

5Crimes Act 1958

5.1In section 464ZGH(2)—

(a)paragraph (g)(i) is repealed;

(b)in paragraph (g)(iv), for "Act 2011." substitute "Act 2011;";

(c)after paragraph (g) insert—

"(h)an investigation of a complaint by the Information Commissioner under the Privacy and Data Protection Act 2014.".

5.2In section 464ZGK(2)—

(a)paragraph (g)(i) is repealed;

(b)in paragraph (g)(v), for "database." substitute "database;";

(c)after paragraph (g) insert—

"(h)an investigation of a complaint by the Information Commissioner under the Privacy and Data Protection Act 2014.".

6Disability Act 2006

For section 108(b) substitute—

"(b)the Information Commissioner under the Privacy and Data Protection Act 2014.".

7Education and Care Services National Law Act 2010

In section 264(2)—

(a)in paragraph (a), for "Office of the Freedom of Information Commissioner" substitute
"Office of the Victorian Information Commissioner";

(b)in paragraph (b), for "to the Freedom of Information Commissioner" substitute
"to the Information Commissioner".

8Electoral Act 2002

In section 34(1)—

(a)for paragraph (b) substitute—

"(b)consult with the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014, on the public interest in protecting the privacy of personal information; and";

(b)in paragraph (c), for "Commissioner for Privacy and Data Protection" substitute "Information Commissioner".

9Food Act 1984

In section 53F—

(a)in subsection (3), for "Commissioner for Privacy and Data Protection" (where twice occurring) substitute "Information Commissioner";

(b)for subsection (4) substitute—

"(4)In this section, Information Commissioner means the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014.".

10Health Records Act 2001

10.1In section 3(1)—

(a)insert the following definition—

"Information Commissioner means the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982;";

(b)the definition of Commissioner for Privacy and Data Protection is repealed.

10.2In section 46—

(a)paragraph (ab) is repealed;

(b)for paragraph (b) substitute—

"(b)the Information Commissioner under section 61C of the Freedom of Information Act 1982 or section 63 of the Privacy and Data Protection Act 2014—".

10.3In section 51(3)—

(a)for "Privacy and Data Protection Commissioner" substitute "Information Commissioner";

(b)omit ", the Freedom of Information Commissioner".

11Local Government Act 1989

11.1In section 3(1)—

(a)the definition of Commissioner for Privacy and Data Protection is repealed;

(b)insert the following definition—

"Information Commissioner means the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014;".

11.2In section 24C—

(a)for subsection (5)(d) substitute—

"(d)subject to the approval of the Information Commissioner, any other public interest purpose in accordance with the Privacy and Data Protection Act 2014.";

(b)in subsections (7), (8), (9) and (10), for "Commissioner for Privacy and Data Protection" (wherever occurring) substitute "Information Commissioner".

12Mental Health Act 2014

For section 233(1)(i) substitute—

"(i)in the case of a complaint made under the Privacy and Data Protection Act 2014, the Information Commissioner appointed under the Freedom of Information Act 1982;".

13Ombudsman Act 1973

13.1In section 2(1)—

(a)the definition of Freedom of Information Commissioner is repealed;

(b)insert the following definition—

"Information Commissioner means the Information Commissioner appointed under section 6C of the Freedom of Information Act 1982;".

13.2In section 15(2), for "Freedom of Information Commissioner" substitute "Information Commissioner".

13.3In the heading to section 16G, for "Freedom of Information Commissioner" substitute "Information Commissioner".

13.4In section 16G, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

13.5In Schedule 1—

(a)in item 3—

(i)in column 1, for "Freedom of " substitute "Victorian";

(ii)in column 2, for "Freedom of Information Commissioner" substitute "The Information Commissioner";

(iii)in column 3, after " Act 1982" insert "and Minister administering the Privacy and Data Protection Act 2014";

(b)item 5 is repealed.

13.6For item 4 of Schedule 3 substitute—

"4The Information Commissioner, in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014".

14Protected Disclosure Act 2012

In section 16—

(a)for paragraph (b) substitute—

"(b)the Information Commissioner appointed under the Freedom of Information Act 1982;";

(b)paragraph (c) is repealed.

15Public Administration Act 2004

15.1In section 6(1) of the Public Administration Act 2004—

(a)for paragraph (f) substitute—

"(f)the Office of the Victorian Information Commissioner;";

(b)paragraph (g) is repealed.

15.2In section 16(1) of the Public Administration Act 2004—

(a)for paragraph (i) substitute—

"(i)the Information Commissioner in relation to the Office of the Victorian Information Commissioner;";

(b)paragraph (ia) is repealed.

16Serious Sex Offenders (Detention and Supervision) Act 2009

For section 142(3)(b)(v) substitute—

"(v)the Information Commissioner, in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014;".

17Unclaimed Money Act 2008

For section 77(1)(g)(vii) substitute—

"(vii)the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014; or".

18Victoria Police Act 2013

For section 10(4)(f) substitute—

"(f)in the case of a report or recommendation made under the Privacy and Data Protection Act 2014, the Information Commissioner appointed under the Freedom of Information Act 1982;".

19Victorian Civil and Administrative Tribunal Act 1998

19.1In clause 29A of Schedule 1—

(a)for "Freedom of Information Commissioner" substitute "Information Commissioner";

(b)for "section 50(1)(a), (b), (d) or (e)" substitute "section 50(1)(b), (d) or (e)".

19.2In the heading to clause 66AA of Schedule 1, for "Commissioner" substitute "Information Commissioner". 

19.3In clause 66AA of Schedule 1, for the definition of Commissioner substitute—

"Information Commissioner means the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014.".

19.4In the heading to clause 66AB of Schedule 1, for "Commissioner" substitute "Information Commissioner".

19.5In clause 66AB of Schedule 1, for "Commissioner" substitute "Information Commissioner".

19.6In clause 66AC of Schedule 1, for "Commissioner" (where twice occurring) substitute "Information Commissioner".

19.7In the heading to clause 66AD of Schedule 1, for "Commissioner" substitute "Information Commissioner".

19.8In clause 66AD of Schedule 1, for "Commissioner" (where twice occurring) substitute "Information Commissioner".

19.9In clause 66AE of Schedule 1, for "Commissioner" substitute "Information Commissioner".

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 23 June 2016

Legislative Council: 13 September 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Freedom of Information Act 1982 to establish the Office of the Victorian Information Commissioner, to amend the Privacy and Data Protection Act 2014 to confer functions on the Information Commissioner, and to make related and consequential amendments to other Acts and for other purposes."