freedom of information amendment (office of the … · part 1—preliminary freedom of information...

Authorised by the Chief Parliamentary Counsel

Authorised Version

i

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

No. 20 of 2017

TABLE OF PROVISIONS Section Page

Part 1—Preliminary 1

1 Purposes 1 2 Commencement 3 3 Principal Act 3

Part 2—Amendment of Freedom of Information Act 1982 4

4 Definitions 4 5 Section 6AA substituted 5 6 Part IA substituted 6 7 Part IB substituted 20 8 Section 21 substituted 25 9 Requests may be refused in certain cases 26 10 Reasons etc. to be given 26 11 Cabinet documents 26 12 Documents containing matter communicated by any other

State 26 13 Documents affecting national security, defence or

international relations 27 14 Law enforcement documents 29 15 New section 31A inserted 30 16 Document affecting personal privacy 31 17 New section 33A inserted 33 18 Documents related to trade secrets etc. 33 19 Documents containing material obtained in confidence 34 20 Heading to Division 1 of Part VI substituted 36 21 Applications to Information Commissioner for review 36 22 Time for applying for review 37 23 Form of application 37 24 Notice and copies of application for review 37 25 Parties to review 37 26 Section 49EA repealed 38 27 Section 49F substituted 38 28 Information Commissioner may determine not to accept

application or may dismiss review 38 29 Procedure on review 38

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30 Section 49I substituted 39 31 Effect of delay by Information Commissioner in relation to

requests 39 32 Preliminary inquiries 40 33 New sections 49KA and 49KB inserted 40 34 Referral back to agency or Minister for reconsideration 42 35 Reconsideration at agency's or Minister's own initiative 43 36 Procedure after reconsideration under section 49L or 49M 44 37 Information Commissioner may facilitate a negotiated

agreement 45 38 Referral of matter to a relevant authority 46 39 Review of decisions under section 25A(5) 47 40 Decision on review 47 41 Conciliation by Health Services Commissioner 48 42 Applications for review by the Tribunal 49 43 Information Commissioner may be called on to assist

Tribunal 51 44 Time for applying for review 51 45 Reviews where decisions delayed 52 46 Procedure where Tribunal determines that there do not exist

reasonable grounds for claim under section 29A 53 47 Notification of reviews regarding documents affecting

personal privacy 53 48 Inspection of exempt documents by Tribunal 53 49 Disciplinary action 54 50 Complaints 54 51 Section 61AB repealed 55 52 Information Commissioner may accept or decline to deal

with complaint 55 53 Referral of complaint to another body 55 54 Notice of decision to investigate complaint 56 55 Section 61E substituted 56 56 Complaint must be dealt with in private 56 57 Preliminary inquiries and consultation 56 58 New sections 61GA and 61GB inserted 57 59 Conciliation of complaint 58 60 Procedure for dealing with complaint if conciliation fails 58 61 Section 61J repealed 59 62 Section 61K repealed 59 63 Outcome of complaint 59 64 Section 61M substituted 60 65 Section 61N repealed 60 66 New Parts VIB and VIC inserted 60 67 Protection against actions for defamation or breach of

confidence 73 68 Section 63A substituted 74 69 Protection of person making complaint 75

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70 New section 63BA inserted 75 71 Division 2 of Part VII substituted and new Division 2A

inserted 76 72 Reporting by Information Commissioner 80 73 Reports to Accountability and Oversight Committee 81 74 Duty of agency or Minister to comply with requirements of

Information Commissioner 81 75 Regulations 81 76 New section 72 inserted 82 77 New Schedule 1 inserted 82

Part 3—Amendment of Privacy and Data Protection Act 2014 90

78 Purposes 90 79 Definitions 90 80 New Part 1A inserted 91 81 Ministerial approval of information usage arrangement 104 82 Complaint referred to Commissioner 105 83 Commissioner may refer complaint 105 84 Power to obtain information and documents 105 85 When may VCAT hear a complaint 106 86 Power to obtain information and documents 106 87 Sections 80 and 81 repealed 106 88 New Division 10 of Part 3 inserted 106 89 Commissioner to develop Victorian protective data security

framework 113 90 Heading to Part 6 substituted 113 91 Division 1 of Part 6 repealed 113 92 Heading to Division 2 of Part 6 substituted 113 93 Section 103 repealed 114 94 Section 104 repealed 114 95 Section 105 repealed 114 96 Commissioner may require access to data and data systems

from public sector body Heads 114 97 Commissioner may require access to data and data systems

from Chief Commissioner of Police 114 98 Commissioner may request access to crime statistics data 114 99 Heading to Division 3 of Part 6 substituted 114 100 Section 114 repealed 115 101 Section 115 repealed 115 102 Secrecy 115 103 Section 122 substituted 116 104 New section 129 inserted 117 105 New Schedule 3 inserted 118 106 Amendment of references to Commissioner for Privacy and

Data Protection 123

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Part 4—Amendment of Victorian Inspectorate Act 2011 128 107 Definitions 128 108 Objects of Act 129 109 Functions of the Victorian Inspectorate 129 110 Delegation 131 111 New Part 5A inserted 131 112 Complaints 132 113 Investigation of complaint 133 114 Own motion investigation 134 115 Conduct of the investigation 134 116 Requirement to provide assistance 136 117 Conduct of inquiry 136 118 Content and form of witness summons 136 119 Legal representation of witnesses and other persons 137 120 Powers of entry, inspection and seizure 137 121 Privileges and secrecy generally 138 122 New sections 85A and 85B inserted 139 123 Recommendations must not include information likely to

identify person who makes an assessable disclosure 142 124 Advice to a complainant 142 125 Outcome of investigation 143 126 Matters to be included in annual report 144 127 Exemption from Freedom of Information Act 1982 145

Part 5—Amendment of Independent Broad-based Anti-corruption Commission Act 2011 and Parliamentary Committees Act 2003 146

Division 1—Independent Broad-based Anti-corruption Commission Act 2011 146

128 Definitions 146 129 Section 194 substituted 146

Division 2—Parliamentary Committees Act 2003 147 130 Definitions 147 131 Accountability and Oversight Committee 148 132 New Part 10 inserted 150

Part 6—Consequential amendments to other Acts 151

Division 1—Health Complaints Act 2016 151

Division 2—Amendment of Principal Act 151

Division 3—Judicial Commission of Victoria Act 2016 151

133 Judicial Commission of Victoria Act 2016 151

Division 4—Amendments to other Acts 151

134 Consequential amendments to other Acts 151

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Part 7—Repeal of amending Act 152 135 Repeal of amending Act 152

Schedule 1—Consequential amendments 153 ═══════════════

Endnotes 162

1 General information 162


Authorised Version

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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 1 Purposes

The main purposes of this Act are—

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

Victoria

Part 1—Preliminary


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(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

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(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.

2 Commencement (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.

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

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4 Definitions 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;



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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.

5 Section 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



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(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.".

6 Part IA substituted For Part IA of the Principal Act substitute—

"Part IA—Office of the Victorian Information Commissioner

6B Establishment 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



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(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.

6C Appointment 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.



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

6D Appointment 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).

6E Terms 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.



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(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.

6F Terms 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.

6G Functions of the Information Commissioner

(1) The Information Commissioner has the following functions—

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



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(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.

6H Functions 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.



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6I Freedom 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;



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

6J Performance 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.

6K General 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.

6L Remuneration (1) The Information Commissioner is entitled to

be paid the remuneration and allowances that are determined by the Governor in Council.



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

6M Vacancy 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—





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

6N Suspension 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



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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.

6O Suspension 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.



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6P Acting 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—





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(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.

6Q Staff 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.



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6R Delegation (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



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(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.

6S Directions 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.



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6T Validity 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.".

7 Part IB substituted For Part IB of the Principal Act substitute—

"Part IB—Professional standards 6U Development 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—



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(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.



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(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.

6V Publication 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.

6W Compliance 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



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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.

6X Review 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.

6Y Ministerial 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.



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(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.

6Z Compliance 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.".



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8 Section 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.".



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9 Requests 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)".

10 Reasons 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".

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

12 Documents 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;



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(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.".

13 Documents 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—



(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.".



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(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—



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(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).".

14 Law 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—



(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—




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(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.".

15 New 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



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(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.".

16 Document 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



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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



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that document or document with deletions (as the case requires).".

17 New 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.".

18 Documents 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



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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—


(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).".

19 Documents 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



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(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—




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(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).".

20 Heading 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".

21 Applications 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.



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(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".


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

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

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

22 Time 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".

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

24 Notice 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".

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



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26 Section 49EA repealed Section 49EA of the Principal Act is repealed.

27 Section 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.".

28 Information 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".

29 Procedure on review (1) In section 49H of the Principal Act, for


(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".



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30 Section 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.".

31 Effect 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.



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

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

33 New 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



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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;



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(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.

49KB Information 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.".

34 Referral 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;



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(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.".

35 Reconsideration 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".



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(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.".

36 Procedure after reconsideration under section 49L or 49M

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


(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



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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.".

37 Information 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".



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38 Referral of matter to a relevant authority (1) In section 49O of the Principal Act, for


(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".



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39 Review 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).".

40 Decision on review (1) In section 49P of the Principal Act—


(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



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(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.

41 Conciliation 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".



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42 Applications 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.".



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(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)".



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43 Information 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—


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

44 Time 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".



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45 Reviews 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.".


"(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),".



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"(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.

46 Procedure 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".

47 Notification 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)".

48 Inspection of exempt documents by Tribunal In section 56(5) of the Principal Act, for "or section 31" insert "section 31 or section 31A".



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

50 Complaints (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".



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51 Section 61AB repealed Section 61AB of the Principal Act is repealed.

52 Information 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".

53 Referral of complaint to another body (1) In section 61C of the Principal Act, for


(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.



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(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,".

54 Notice of decision to investigate complaint In section 61D of the Principal Act, for "Freedom of Information Commissioner" (where twice occurring) substitute "Information Commissioner".

55 Section 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.".

56 Complaint must be dealt with in private In section 61F of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

57 Preliminary inquiries and consultation In section 61G(1) of the Principal Act—

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



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

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

58 New 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.



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(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.

61GB Informal resolution If the Information Commissioner determines that a complaint can be resolved informally, the Information Commissioner must take reasonable steps to resolve the complaint.".

59 Conciliation 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".

60 Procedure 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".



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(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".

61 Section 61J repealed Section 61J of the Principal Act is repealed.

62 Section 61K repealed Section 61K of the Principal Act is repealed.

63 Outcome of complaint (1) In section 61L of the Principal Act, for


(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.



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64 Section 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.".

65 Section 61N repealed Section 61N of the Principal Act is repealed.

66 New Parts VIB and VIC inserted After Part VIA of the Freedom of Information Act 1982 insert—

"Part VIB—Investigations

Division 1—Investigations 61O Information 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



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(b) the failure to perform or exercise a function or obligation, under this Act, by an agency or principal officer; or

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

(2) The Information Commissioner may not conduct an investigation in respect of—

(a) any action taken or a failure to take an action by—

(i) a Minister; or

(ii) a person employed as a Ministerial officer under Part 6 of the Public Administration Act 2004; or

(b) any action taken or a failure to take an action by an agency or principal officer, in the performance or purported performance of a Minister's functions or obligations under this Act.

61P Conduct of investigation (1) An investigation under this Part must be

conducted in private.

(2) During an investigation, the Information Commissioner may serve on a person, a notice to produce or attend, in accordance with Part VIC.



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Division 2—Reporting of investigation 61Q Investigation report

As soon as practicable after the completion of an investigation, the Information Commissioner must make a report of the findings of the investigation.

61R Content of investigation report (1) The Information Commissioner must not

include in a report under this Division—

(a) any information that the Information Commissioner reasonably believes would prejudice a criminal investigation, criminal proceedings or any investigation by the IBAC or the Victorian Inspectorate; or

(b) any information that—

(i) if included in a document would make that document an exempt document in accordance with section 28 or 29A; or

(ii) is subject to legal professional privilege or client legal privilege; or

(c) a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit an offence; or

(d) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence.

(2) If the Information Commissioner intends to include in a report under this Division a comment or opinion that is adverse to any



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person, the Information Commissioner must first give the person a reasonable opportunity to respond to the adverse material, and must fairly set out each element of the person's response in the report.

(3) If the Information Commissioner intends to include in a report under this Division a comment or opinion that is not adverse to a person, the Information Commissioner must first provide that person with the relevant material in relation to which the Information Commissioner intends to name that person.

(4) If the Information Commissioner intends to include in a report under this Division any adverse finding about an agency, the Information Commissioner must first give the principal officer of that agency a reasonable opportunity to respond to the adverse material, and must fairly set out each element of the response in the report.

(5) The Information Commissioner must not include in a report under this Division any information that would identify any person who is not the subject of any adverse comment or opinion unless the Information Commissioner—

(a) is satisfied that—

(i) it is necessary or desirable to include the information in the public interest; and

(ii) including the information will not cause unreasonable damage to the person's reputation, safety or wellbeing; and



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(b) states in the report that the person is not the subject of any adverse comment or opinion.

61S Legal advice and representation—investigation report A person may seek legal advice, and be represented by, a legal practitioner in relation to a proposed report, or draft or part of a proposed report under this Division that is received by the person.

61T Tabling of report in Parliament (1) The Information Commissioner may cause a

report to be transmitted to each House of the Parliament as soon as practicable after the investigation report has been completed.

(2) The clerk of each House of the Parliament must cause the report to be laid before the House of the Parliament on the day on which it is received or on the next sitting day of the House of the Parliament.

(3) If the Information Commissioner proposes to transmit a report to the Parliament on a day on which neither House of the Parliament is sitting, the Information Commissioner must—

(a) give one business day's notice of the intention to do so to the clerk of each House of the Parliament; and

(b) give the report to the clerk of each House of the Parliament on the day indicated in the notice; and

(c) publish the report on the Internet site of the Office of the Victorian Information Commissioner as soon as practicable after giving it to the clerks.



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(4) The clerk of each House of the Parliament must—

(a) notify each member of the House of the Parliament of the receipt of a notice under subsection (3)(a) on the same day that the clerk receives that notice; and

(b) give a copy of a report to each member of the House of the Parliament as soon as practicable after the report is received under subsection (3)(b); and

(c) cause the report to be laid before the House of the Parliament on the next sitting day of the House of the Parliament.

Part VIC—Coercive powers 61U Notice to produce or attend (1) A notice to produce or attend may require a

person—

(a) to produce a specified document to the Information Commissioner by or before a specified time and in a specified manner; or

(b) to attend at a specified time and place on a specified date to produce documents to the Information Commissioner; or

(c) to attend an examination before the Information Commissioner to give evidence and to produce documents at a specified time and place on a specified date; or

(d) to attend the Information Commissioner at a specified time and place to produce a specified document.



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(2) A notice under this section must contain the following information—

(a) a statement that—

(i) failure to comply with the notice without reasonable excuse may be an offence; and

(ii) includes the maximum penalty for that offence;

(b) examples of what may constitute a reasonable excuse for failing to comply with the notice.

61V Variation or revocation of a notice to produce or attend

(1) The Information Commissioner, by further written notice served on a person, may at any time vary or revoke a notice to produce or attend served on the person.

(2) A notice varying or revoking a notice to produce or attend must be served in accordance with section 61W.

61W Service of notice to produce or notice to attend

(1) Subject to subsection (2), a notice to produce or attend must be served at a reasonable time, being not less than 7 days before the date on which the person is required to attend or otherwise comply with the notice.

(2) The Information Commissioner may serve a notice to attend requiring immediate attendance by a person if—

(a) the Information Commissioner considers on reasonable grounds that a delay in the person's attendance is likely to result in—



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(i) a document or thing being lost or destroyed; or

(ii) the commission of an offence; or

(iii) the escape of the person on whom the notice is served; or

(iv) serious prejudice to the conduct of the inquiry to which the notice relates; or

(b) the person on whom the notice is served consents to immediate attendance.

(3) A notice to produce or attend directed to a natural person must be served by serving a copy of the notice on the person personally.

(4) A notice to produce or attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.

(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

61X Failure to comply with notice to produce or attend A person who is served with a notice to produce or attend must not, without reasonable excuse, refuse or fail to comply with a requirement set out in the notice—

(a) to attend before the Information Commissioner; or

(b) to give information; or



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(c) to answer a question or produce a document.

Penalty: 60 penalty units.

61Y Reasonable excuse—self incrimination Without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse to refuse or fail to comply with a requirement of the notice if the giving of the information or production of the document may tend to incriminate the person.

61Z Reasonable excuse—documents affecting national security, defence or international relations Without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse for a person to refuse or fail to comply with a requirement set out in the notice if the information or document—

(a) is an exempt document under section 29A; or

(b) is information that if included in a document would make that document an exempt document under section 29A.

61ZA Reasonable excuse—cabinet documents and legal professional privilege

(1) Subject to subsection (3), and without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse for a person to refuse or fail to comply with a requirement set out in the notice if—



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(a) the information or document—

(i) is an exempt document under section 28; or

(ii) is information that if included in a document would make that document an exempt document under section 28; or

(b) the information or document—

(i) is an exempt document under section 32; or

(ii) is information that if included in a document would make that document an exempt document under section 32.

(2) The Secretary to the Department of Premier and Cabinet may certify that information or a document described in subsection (1)(a)—

(a) in the case of information, is information which, if included in a document, would make the document an exempt document of a kind referred to in section 28(1);

(b) in the case of a document, is or, if it existed, would be an exempt document of a kind referred to in section 28(1).

(3) If a notice to produce or attend is served on a person during a review of a decision that relates to a document claimed to be exempt under section 28 or 32, it is not a reasonable excuse for a person to refuse or fail to comply with the notice for the reason that the information or document—



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(a) is an exempt document under section 28 or 32; or

(b) is information that if included in a document would make that document an exempt document under section 28 or 32.

61ZB Production under notice of document claimed to be exempt under section 28, 31 or 31A

(1) This section applies if—

(a) a person is required under this Part to produce a document under a notice to produce or attend; and

(b) that document is claimed to be exempt under section 28, 31 or 31A.

(2) The person must produce the document for inspection by the Information Commissioner at the premises of the agency which, or Minister who, made the claim that the document is exempt, within the timeframe specified by the Information Commissioner.

(3) A person who produces a document for inspection in accordance with subsection (2)—

(a) is taken to comply with the notice to produce or attend; and

(b) does not commit an offence against section 61X.

61ZC Statutory secrecy not a reasonable excuse (1) It is not a reasonable excuse for the purposes

of section 61X for a person to refuse or fail to comply with a requirement of the Information Commissioner as a result of—



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(a) any obligation imposed on that person, by any enactment or rule of law, to maintain secrecy in relation to the production of the document, information or the answer to a question; or

(b) any restriction imposed on that person, by any enactment or rule of law, that prohibits the disclosure of the document, information or the answer to a question.

(2) Nothing in this section affects the operation of—

(a) Part 7 of the Protected Disclosure Act 2012; or

(b) Division 3 of Part 2 of the Independent Broad-based Anti-corruption Commission Act 2011.

61ZD Office of the Information Commissioner to report to the Victorian Inspectorate on issue of notice to produce or attend Within 3 days after the issue of a notice to produce or attend, the Information Commissioner must give a written report to the Victorian Inspectorate specifying—

(a) the name of the person to whom the notice relates; and

(b) the reasons why the notice was issued.



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61ZE Power to take evidence on oath or affirmation

(1) The Information Commissioner may require a person attending an examination, in accordance with a notice to attend, to give evidence or answer questions on oath or affirmation.

(2) The Information Commissioner, or a person authorised to do so by the Commissioner, may administer an oath or affirmation to a person for the purposes of subsection (1).

(3) A person must not, without reasonable excuse, refuse or fail to take an oath or make an affirmation when required to do so by the Information Commissioner under subsection (1).


(4) A person does not commit an offence against subsection (3) unless, before the person is required to take the oath or make the affirmation, the Information Commissioner informs the person that refusal or failure to do so without reasonable excuse is an offence.

61ZF Legal advice and representation A person may seek legal advice, and be represented by, a legal practitioner in relation to—

(a) a notice to produce or attend that is directed to the person; and



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(b) the person's rights, liabilities, obligations and privileges in relation to the notice to produce or attend.

61ZG Protection of legal practitioners and persons—notice to produce or attend

(1) A legal practitioner representing the person who is served with a notice to produce or attend has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.

(2) A person who is served with a notice to produce or attend has the same protection and immunity as a witness has in a proceeding in the Supreme Court.".

67 Protection against actions for defamation or breach of confidence

For section 62(3) of the Principal Act substitute—

"(3) The provision of access to a document in accordance with—

(a) a request by the Information Commissioner; or

(b) a notice under section 49KA or 61GA(1); or

(c) a notice to produce or attend—

does not constitute a waiver of any privilege attaching to that document in relation to its contents.".



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68 Section 63A substituted For section 63A of the Principal Act substitute—

"63A Information Commissioner and certain other persons not compellable to produce documents in legal proceedings

(1) The following persons cannot be compelled in a legal proceeding to produce any document or any part of a document that has come into the person's possession in the performance of the person's functions under Part VI, VIA or VIB or in acting for or on behalf of a person in the performance of those functions—

(a) the Information Commissioner;

(b) the Public Access Deputy Commissioner;

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

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

(2) This section does not apply to—

(a) a criminal proceeding; or

(b) a proceeding under section 63BA; or

(c) a proceeding involving a claim that the Information Commissioner does not have the jurisdiction to compel the production of documents.".



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69 Protection of person making complaint In section 63B of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

70 New section 63BA inserted After section 63B of the Principal Act insert—

"63BA Application to Supreme Court (1) If a question arises as to whether the

Information Commissioner or the Public Access Deputy Commissioner has jurisdiction to serve a notice to produce or attend on an agency, principal officer or a Minister under this Act, the Information Commissioner or, subject to subsection (2), the Public Access Deputy Commissioner or the agency, principal officer or Minister may apply to the Supreme Court for determination of that question.

(2) The Public Access Deputy Commissioner may only apply for determination under this section in relation to a notice to produce or attend served by the Deputy Commissioner.

(3) The Supreme Court may make any order it considers proper in relation to an application under subsection (1).

(4) A Minister may, or a principal officer may, on behalf of the agency or, if the notice to produce or attend is served on the principal officer, on the officer's own behalf—

(a) make an application under this section; and



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(b) be a party to an application by the Information Commissioner under this section.

(5) Nothing in this section limits any application an agency, principal officer or Minister may make to the Supreme Court in respect of the issuing of a notice to produce or attend.".

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

For Division 2 of Part VII of the Principal Act substitute—

"Division 2—Production of documents to Information Commissioner

63C Application of Division This Division applies to a document that is claimed to be an exempt document and is, or is to be, produced to the Information Commissioner in the course of the Information Commissioner—

(a) conducting a review under Division 1 of Part VI; or

(b) dealing with a complaint under Part VIA; or

(c) conducting an investigation under Part VIB.

63D Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A

(1) This section applies to the production of a document that is claimed to be exempt under section 28, 29A, 31 or 31A.



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(2) The document may only be inspected at the premises of the agency which, or the Minister who, made the claim that the document is exempt.

(3) The Information Commissioner is not entitled to possession of, or to make copies of, the document.

63E Use of documents claimed to be exempt (1) The Information Commissioner must do all

things necessary to ensure that only a specified person has access to the document or its contents.

(2) A person who is or has been a specified person must not intentionally or recklessly disclose the document or its contents to any person other than—

(a) to a specified person in the course of performing the person's functions under this or any other Act or acting for or on behalf of a specified person in the performance of those functions; or

(b) to a representative of the agency or Minister who produced the document.

Penalty: 240 penalty units or imprisonment for 2 years or both.

(3) A specified person may, to the extent practicable without disclosing any exempt matter, disclose the nature of the document to the applicant for review or the complainant (as the case requires) if—

(a) the specified person considers that the disclosure may assist in the resolution of the review or complaint; and



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(b) the agency head, principal officer or Minister, or a person nominated by the agency head, principal officer or Minister, gives prior written consent to the disclosure.

(4) Subject to section 63D, the Information Commissioner may copy the document, but only to the extent necessary for the performance of the Information Commissioner's functions in conducting the review, complaint or investigation.

(5) On completion of the review, complaint or investigation process, the Information Commissioner must—

(a) return the document to the agency that produced it; and

(b) return to that agency, or destroy, any copies of the document.

(6) In this section—

former Commissioner means a person who was appointed as—

(a) the Freedom of Information Commissioner; or

(b) an Assistant Commissioner;

specified person means—


(b) the Public Access Deputy Commissioner; or

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



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(d) a former Commissioner, acting former Commissioner or employee, contractor or agent employed or engaged by a former Commissioner.

Division 2A—Offences 63F Offence to obstruct, mislead or provide

false information (1) A person must not, without reasonable

excuse, wilfully obstruct, hinder or resist the Information Commissioner, the Public Access Deputy Commissioner, a delegate of the Information Commissioner or the Public Access Deputy Commissioner or a member of staff of the Office of the Victorian Information Commissioner, in—

(a) performing, or attempting to perform, a function or duty under this Act; or

(b) exercising, or attempting to exercise, a power under this Act.


(2) A person must not, without reasonable excuse, provide information or make a statement to the Information Commissioner, the Public Access Deputy Commissioner, a delegate of the Information Commissioner or the Public Access Deputy Commissioner, or a member of staff of the Office of the Victorian Information Commissioner knowing that it is false or misleading in a material particular.




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(3) A person must not, without reasonable excuse, mislead or attempt to mislead the Information Commissioner, the Public Access Deputy Commissioner, a delegate of the Information Commissioner or the Public Access Deputy Commissioner, or a member of staff of the Office of the Victorian Information Commissioner.


63G Prosecutions (1) A proceeding for an offence against this Act

may be commenced by—

(a) a member of the police force; or

(b) the Information Commissioner; or

(c) any other person authorised to do so by the Information Commissioner.

(2) In a proceeding for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceeding was authorised to bring it.".

72 Reporting by Information Commissioner (1) For the heading to section 64 of the Principal Act

substitute—

"64 Reporting by Information Commissioner".

(2) In section 64 of the Principal Act, for "Freedom of Information Commissioner" (wherever occurring) substitute "Information Commissioner".

(3) In section 64(3) of the Principal Act, for "Freedom of Information Commissioner's" substitute "Information Commissioner's".



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73 Reports to Accountability and Oversight Committee (1) For the heading to section 64A of the Principal

Act substitute—

"64A Reports to Accountability and Oversight Committee".


(a) after paragraph (a) insert—

"(ab) on the performance of functions and exercise of powers of the Information Commissioner and the operation of the Office of the Victorian Information Commissioner; and";

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

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

(1) In the heading to section 64B of the Principal Act, for "Freedom of Information Commissioner" substitute "Information Commissioner".

(2) In section 64B of the Principal Act—

(a) for "or Minister" (where twice occurring) substitute ", principal officer or Minister";

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

75 Regulations Section 66(1)(b) of the Principal Act is repealed.



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76 New section 72 inserted After section 71 of the Principal Act insert—

"72 Transitional provisions—Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 Schedule 1 has effect.".

77 New Schedule 1 inserted At the end of the Principal Act insert—

"Schedule 1—Transitional provisions—Freedom of

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

1 Definitions In this Schedule—

commencement day means the day on which Part 2 of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 comes into operation.

2 Office of Freedom of Information Commissioner abolished On the commencement day—

(a) the office of the Freedom of Information Commissioner is abolished and the person holding that office and any person acting in that office go out of office; and



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(b) all rights, property and assets that, immediately before that day, were vested in the office of the Freedom of Information Commissioner are, by force of this clause, vested in the Office of the Victorian Information Commissioner; and

(c) all debts, liabilities and obligations of the office of the Freedom of Information Commissioner existing immediately before that day become, by force of this clause, debts, liabilities and obligations of the Office of the Victorian Information Commissioner; and

(d) the Information Commissioner is, by force of this clause, substituted as a party to any proceeding pending in any court or tribunal to which the Freedom of Information Commissioner was a party immediately before that day; and

(e) the Information Commissioner is, by force of this clause, substituted as a party to any arrangement or contract entered into by or on behalf of the Freedom of Information Commissioner as a party and in force immediately before that day.

3 References to Freedom of Information Commissioner and Assistant Commissioner On the commencement day any reference to the Freedom of Information Commissioner or Assistant Commissioner in any Act (other than this Act) or in any rule, regulation, order, agreement, instrument, deed or other document (by whatever name



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called or however described) must, so far as it relates to any period on or after that day and if not inconsistent with the context or subject matter, be construed as a reference to the Information Commissioner.

4 Staff On the commencement day, any staff employed under Part 3 of the Public Administration Act 2004 immediately before the commencement day by the Freedom of Information Commissioner are taken to be employed by the Information Commissioner under section 6Q of this Act.

5 Requests under section 17 This Act as in force immediately before the commencement day continues to apply in relation to a request made under section 17 but not determined before the commencement day as if any reference to the Freedom of Information Commissioner or the Assistant Commissioner were a reference to the Information Commissioner.

6 Requests under Part V This Act as in force immediately before the commencement day continues to apply in relation to a request made under section 39 but not determined before the commencement day as if any reference to the Freedom of Information Commissioner or the Assistant Commissioner were a reference to the Information Commissioner.

7 Review by Freedom of Information Commissioner This Act as in force immediately before the commencement day continues to apply in relation to an application for review made



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under Division 1 of Part VI but not determined before the commencement day as if any reference to the Freedom of Information Commissioner or the Assistant Commissioner were a reference to the Information Commissioner.

8 Review by Tribunal Section 50(5) as in force before the commencement day continues to apply to a certificate issued under section 28(4) before the commencement day.

9 Complaints This Act as in force immediately before the commencement day continues to apply in relation to any complaint that was made under Part VIA but in respect of which a determination had not been made under section 61B or 61C before the commencement day as if any reference to the Freedom of Information Commissioner or the Assistant Commissioner were a reference to the Information Commissioner.

10 Accepted complaints This Act as in force immediately before the commencement day continues to apply in relation to any complaint that was made under Part VIA and accepted under section 61B before the commencement day as if any reference to the Freedom of Information Commissioner or the Assistant Commissioner were a reference to the Information Commissioner.



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11 Protections in relation to legal action (1) Section 62 and 63 as in force immediately

before the commencement day—

(a) continue to apply in relation to the provision of access to a document before the commencement day; and

(b) apply in relation to the provision of access to a document on or after the commencement day under any other provision of this Act continued by this Schedule.

(2) Section 63A as in force immediately before the commencement day—

(a) continues to apply in relation to anything done before the commencement day; and

(b) applies in relation to the performance on or after the commencement day of functions under Parts VI and VIA as continued by this Schedule as if for subsection (1)(a) to (c) there were substituted—

(a) the Information Commissioner;

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

(c) a contractor, agent or other person acting for or on behalf of the Information Commissioner.

(3) Section 63B as in force immediately before the commencement day continues to apply in relation to anything done before the commencement day.



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12 Production of documents Division 2 of Part VII as in force immediately before the commencement day applies to any review conducted or any dealing with a complaint on or after the commencement day under any other provision of this Act that is continued by this Schedule as if—

(a) any reference to the Freedom of Information Commissioner or the Assistant Commissioner were a reference to the Information Commissioner; and

(b) any reference to a person referred to in section 6J were a reference to a person referred to in section 6Q.

13 Lodgement of complaints A person cannot lodge a complaint under this Act as in force on and after the commencement day if the person had already lodged a complaint in respect of the same matter under this Act before the commencement day.

14 Annual reports for reporting periods which end before commencement day

(1) This clause applies if—

(a) a reporting period has ended before the commencement day; and

(b) the Freedom of Information Commissioner has not prepared an annual report referred to in section 64 for that reporting period before that day.



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(2) The Information Commissioner must prepare an annual report for the reporting period in accordance with section 64.

(3) The annual report may be prepared as a composite report with the report prepared under clause 12 of Schedule 3 to the Privacy and Data Protection Act 2014.

(4) In this clause—

reporting period means the period commencing on 1 July in any year and ending on 30 June in the following year.

15 Annual reports for reporting periods which end on or after the commencement day

(1) This clause applies if a reporting period ends on or after the commencement day.

(2) On and after the commencement day, the Information Commissioner must prepare a report in accordance with section 64 for the part of the reporting period occurring before the commencement day and include that report in the Information Commissioner's first report under that section after the end of the reporting period.





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16 Report to Accountability and Oversight Committee

(1) This clause applies if the Freedom of Information Commissioner has not prepared a report referred to in section 64A before the commencement day.

(2) On and after the commencement day, the Information Commissioner must prepare the report in accordance with section 64A as in force before the commencement day.".

Part 3—Amendment of Privacy and Data Protection Act 2014


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78 Purposes For section 1(e) of the Privacy and Data Protection Act 2014 substitute—

"(e) to provide for the appointment of the Privacy and Data Protection Deputy Commissioner; and".

79 Definitions In section 3 of the Privacy and Data Protection Act 2014—

(a) insert the following definitions—

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

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 of the Freedom of Information Act 1982;

notice to produce or attend means a notice issued under section 68 or 79, and includes a notice as varied under section 83B;

Office of the Victorian Information Commissioner means the Office of the Victorian Information Commissioner established under the Freedom of Information Act 1982;



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Privacy and Data Protection Deputy Commissioner means the Privacy and Data Protection Deputy Commissioner appointed under section 8H;";

(b) the definition of Commissioner is repealed.

80 New Part 1A inserted After Part 1 of the Privacy and Data Protection Act 2014 insert—

"Part 1A—Functions, powers of Information Commissioner and

appointment of Privacy and Data Protection Deputy Commissioner

Division 1—Performance of functions 8A Functions of Information Commissioner (1) The Information Commissioner has the

following functions—

(a) functions relating to information privacy set out in section 8C;

(b) functions relating to protective data security and law enforcement data security set out in section 8D;

(c) functions conferred on the Information Commissioner by or under this Act;

(d) functions conferred on the Information Commissioner by or under any other Act.

(2) The Information Commissioner must have regard to the objects of this Act in the performance of the Commissioner's functions and the exercise of the Commissioner's powers under this Act.



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(3) Except where expressly provided in this Act, 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.

8B Functions of Privacy and Data Protection Deputy Commissioner

(1) The Privacy and Data Protection Deputy Commissioner has the following functions—

(a) functions relating to information privacy set out in section 8C(2);

(b) functions relating to protective data security and law enforcement data security set out in section 8D(2);

(c) any function conferred by the Information Commissioner on the Deputy Commissioner by authorisation under section 8F;

(d) any other function conferred on the Information Commissioner by or under this Act, except—

(i) a function of the Information Commissioner referred to in section 8A(1)(d); or

(ii) a function of the Information Commissioner referred to in section 8C(1) or 8D(1); or

(iii) a function of the Information Commissioner referred to in section 8F; or

(iv) a function of the Information Commissioner referred to in section 8O; or



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(v) issuing directions under section 8P; or

(vi) making reports under section 116.

(2) The Privacy and Data Protection Deputy Commissioner must have regard to the objects of this Act in the performance of the Deputy Commissioner's functions and the exercise of the Deputy Commissioner's powers under this Act.

(3) Except where expressly provided in this Act, the Privacy and Data Protection 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.

8C Information privacy functions (1) The Information Commissioner has the

following functions in relation to information privacy—

(a) in accordance with Division 3 of Part 3, to undertake activities relating to the development and approval of codes of practice;

(b) to develop and publish model terms capable of being adopted by an organisation in a contract or arrangement with a recipient of personal information being transferred by the organisation outside Victoria;

(c) to make public interest determinations and temporary public interest determinations in accordance with Division 5 of Part 3;



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(d) to approve information usage arrangements in accordance with Division 6 of Part 3;

(e) to examine and assess any proposed legislation that would require or authorise acts or practices of an organisation that may, in the absence of the legislation, be interferences with the privacy of an individual or that may otherwise have an adverse effect on the privacy of an individual, and to report to the Minister the results of the examination and assessment;

(f) to make public statements in relation to any matter affecting personal privacy or the privacy of any class of individual;

(g) to issue guidelines and other materials in relation to the Information Privacy Principles and information usage arrangements;

(h) to undertake reviews of any matters relating to information privacy, as requested by the Minister;

(i) to make reports or recommendations in relation to information privacy as provided for by section 111.

(2) The Information Commissioner and the Privacy and Data Protection Deputy Commissioner each have the following functions in relation to information privacy—

(a) to promote understanding and acceptance of the Information Privacy Principles and of the objects of those Principles;



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(b) to examine the practice of an organisation with respect to personal information maintained by that organisation for the purpose of ascertaining whether or not the information is maintained according to the Information Privacy Principles or any applicable code of practice;

(c) to issue certificates under Division 7 of Part 3;

(d) subject to this Act—

(i) to receive complaints about an act or practice of an organisation; and

(ii) if appropriate to do so, to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the complaint;

(e) to issue compliance notices under Division 9 of Part 3 and to carry out an investigation for that purpose;

(f) to conduct or commission audits of records of personal information maintained by an organisation for the purpose of ascertaining whether the records are maintained according to the Information Privacy Principles or any applicable code of practice;

(g) to consult and cooperate with persons and bodies concerned with information privacy;

(h) to undertake research in relation to matters relating to information privacy.



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8D Protective data security and law enforcement data security functions

(1) The Information Commissioner has the following functions in relation to protective data security and law enforcement data security—

(a) to issue protective data security standards and law enforcement data security standards;

(b) to develop the Victorian protective data security framework;

(c) to issue guidelines and other materials in relation to protective data security standards;

(d) to undertake reviews of any matters relating to protective data security, as requested by the Minister;

(e) to undertake reviews of any matters relating to law enforcement data security and crime statistics data security, as requested by the Minister;

(f) to make reports or recommendations in relation to data security as provided for by section 111.

(2) The Information Commissioner and the Privacy and Data Protection Deputy Commissioner each have the following functions in relation to protective data security and law enforcement data security—

(a) to promote the uptake of protective data security standards by the public sector;

(b) to conduct monitoring and assurance activities, including audits, to ascertain compliance with data security standards;



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(c) to refer findings of monitoring and assurance activities, including audits, to an appropriate person or body for further action;

(d) to undertake research in relation to matters relating to protective data security and law enforcement data security relevant to the public sector, particularly relating to information and communications technology;

(e) to retain copies of protective data security plans.

8E Performance of concurrent functions If a function may be performed by the Information Commissioner and the Privacy and Data Protection Deputy Commissioner, that function may be performed by—


(b) the Privacy and Data Protection Deputy Commissioner; or

(c) the Information Commissioner and the Privacy and Data Protection Deputy Commissioner.

8F Information Commissioner may confer functions on Privacy and Data Protection Deputy Commissioner

(1) The Information Commissioner may in writing authorise the Privacy and Data Protection Deputy Commissioner to perform any of the following functions of the Information Commissioner, as specified in the authorisation—

(a) to undertake activities in relation to the development or approval of a specified code of practice;



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(b) to develop and publish specified model terms capable of being adopted by an organisation in a contract or arrangement with a recipient of personal information being transferred by the organisation outside Victoria;

(c) to make a specified public interest determination or a specified temporary public interest determination in accordance with Division 5 of Part 3;

(d) to approve a specified information usage arrangement;

(e) to issue a specified protective data security standard or a specified law enforcement data standard;

(f) to review or amend the Victorian protective data security framework, as specified;

(g) to issue guidelines and other materials in relation to a specified protective data security standard.

(2) The Information Commissioner may at any time in writing revoke an authorisation under this section, and on that revocation may continue and complete any action commenced under the authorisation by the Privacy and Data Protection Deputy Commissioner.

8G General powers of Information Commissioner and Privacy and Data Protection 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.



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(2) The Privacy and Data Protection 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.

Division 2—Privacy and Data Protection Deputy Commissioner

8H Appointment of Privacy and Data Protection Deputy Commissioner

(1) The Governor in Council may appoint an eligible person as the Privacy and Data Protection Deputy Commissioner.

(2) A person is not eligible for appointment as the Privacy and Data Protection Deputy Commissioner if the person is—



(3) A person may hold office as Privacy and Data Protection Deputy Commissioner for not more than 2 terms (whether consecutive terms or otherwise).

8I Terms and conditions of appointment of Privacy and Data Protection Deputy Commissioner

(1) The appointment of the Privacy and Data Protection 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 Privacy and Data Protection Deputy Commissioner holds office on the terms and conditions determined by the Governor in Council.



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(3) Subject to section 8H(3), the Privacy and Data Protection Deputy Commissioner may be reappointed.

(4) The Privacy and Data Protection Deputy Commissioner is entitled to leave of absence as determined by the Governor in Council.

(5) The Privacy and Data Protection Deputy Commissioner must not directly or indirectly engage in paid employment outside the duties of the relevant office.

8J Remuneration The Privacy and Data Protection Deputy Commissioner is entitled to be paid the remuneration and allowances that are determined by the Governor in Council.

8K Vacancy and resignation of Privacy and Data Protection Deputy Commissioner

(1) The Privacy and Data Protection Deputy Commissioner ceases to hold office if the office holder—




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



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(f) is removed from office under section 8L.

(2) The Privacy and Data Protection Deputy Commissioner's resignation under subsection (1)(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.

8L Suspension and removal from office (1) The Governor in Council, on the

recommendation of the Minister, may suspend or remove the Privacy and Data Protection 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 Privacy and Data Protection Deputy Commissioner should not hold office.

(2) If the Privacy and Data Protection 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.



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8M Acting Privacy and Data Protection Deputy Commissioner

(1) The Governor in Council, on the recommendation of the Minister, may appoint an eligible person to act as the Privacy and Data Protection Deputy Commissioner—

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

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

(2) A person is not eligible for appointment to act as the Privacy and Data Protection Deputy Commissioner if the person is—



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

(4) The Governor in Council, on the recommendation of the Minister, may at any time remove the acting Privacy and Data Protection Deputy Commissioner from office.

(5) While a person is acting in the office of the Privacy and Data Protection Deputy Commissioner, the person—



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(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 Privacy and Data Protection Deputy Commissioner would have been entitled to for performing those duties.

8N Validity of acts and decisions An act or decision of the Privacy and Data Protection Deputy Commissioner or acting Privacy and Data Protection Deputy Commissioner is not invalid only because—

(a) of a defect or irregularity in or in connection with the appointment of the Privacy and Data Protection Deputy Commissioner or acting Privacy and Data Protection Deputy Commissioner; or

(b) in the case of an acting Privacy and Data Protection Deputy Commissioner, the occasion for so acting had not arisen or had ceased.

Division 3—General 8O Delegation (1) The Information Commissioner may by

instrument delegate to the Privacy and Data Protection Deputy Commissioner or a member of staff of the Office of the Victorian Information Commissioner any of the Information Commissioner's functions and powers under this Act except this power of delegation.



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(2) The Information Commissioner may by instrument delegate to the Privacy and Data Protection Deputy Commissioner or any member of staff of the Office of the Victorian Information Commissioner 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.

(3) With the written consent of the Information Commissioner, the Privacy and Data Protection Deputy Commissioner may by instrument delegate to a member of staff any of the Deputy Commissioner's functions and powers (including any function or power delegated under subsection (1)) except this power of delegation.

8P Directions The Information Commissioner may issue directions to the Privacy and Data Protection Deputy Commissioner or to any member of staff of the Office of the Victorian Information Commissioner for the purposes of this Act in relation to the performance of functions under this Act other than in relation to the following—

(a) certifying consistency of an act or practice under section 55; or

(b) the conciliation of a complaint under Subdivision 3 of Division 8 of Part 3.".

81 Ministerial approval of information usage arrangement

In section 50(5) of the Privacy and Data Protection Act 2014, for "31 or" substitute "31, 31A or".



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82 Complaint referred to Commissioner Section 58(2) of the Privacy and Data Protection Act 2014 is repealed.

83 Commissioner may refer complaint (1) Section 63(1)(c) of the Privacy and Data

Protection Act 2014 is repealed.

(2) After section 63(1) of the Privacy and Data Protection Act 2014 insert—

"(1A) The Information Commissioner may decide to deal with a complaint as if it were a complaint made under the Freedom of Information Act 1982 if the Information Commissioner considers that the complaint could be dealt with more effectively or appropriately under that Act.".

(3) In section 63(2) of the Privacy and Data Protection Act 2014, after "referral" insert "or decision under subsection (1A)".

(4) In section 63(3) of the Privacy and Data Protection Act 2014, after "section" insert "or dealt with under the Freedom of Information Act 1982".

84 Power to obtain information and documents For section 68 of the Privacy and Data Protection Act 2014 substitute—

"68 Information Commissioner may issue notice to produce or attend If the Information Commissioner has reason to believe that a person has information or a document relevant to a conciliation under this Subdivision, the Information Commissioner may serve a notice to produce or attend on the person, in accordance with Division 10.".



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85 When may VCAT hear a complaint In section 73(3) of the Privacy and Data Protection Act 2014, for "section 68(3) or 79(3)" substitute "section 83J(2)".

86 Power to obtain information and documents For section 79 of the Privacy and Data Protection Act 2014 substitute—

"79 Power to compel production of documents or attendance of witness If the Information Commissioner reasonably believes that a person has information or a document relevant to a decision to serve a compliance notice under section 78(1), the Information Commissioner may serve a notice to produce or attend on the person in accordance with Division 10.".

87 Sections 80 and 81 repealed Sections 80 and 81 of the Privacy and Data Protection Act 2014 are repealed.

88 New Division 10 of Part 3 inserted After Division 9 of Part 3 of the Privacy and Data Protection Act 2014 insert—

"Division 10—Notices to produce or attend

83A Notice to produce or attend (1) A notice to produce or attend may require a

person—

(a) to produce a specified document to the Information Commissioner by or before a specified time and in a specified manner; or



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(b) to attend at a specified time and place on a specified date to produce documents to the Information Commissioner; or

(c) to attend an examination before the Information Commissioner to give evidence and to produce documents at a specified time and place on a specified date; or

(d) to attend the Information Commissioner at a specified time and place to produce a specified document.

(2) A notice under subsection (1) must contain the following information—

(a) a statement that—

(i) failure to comply with the notice without reasonable excuse may be an offence; and

(ii) includes the maximum penalty for that offence;

(b) examples of what may constitute a reasonable excuse for failing to comply with the notice.

83B Variation or revocation of a notice to produce or attend

(1) The Information Commissioner, by further written notice served on a person, may at any time vary or revoke a notice to produce or attend served on the person.

(2) A notice varying or revoking a notice to produce or attend must be served in accordance with section 83C.



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83C Service of notice to produce documents or to attend

(1) Subject to subsection (2), a notice to produce or attend must be served at a reasonable time, being not less than 7 days before the date on which the person is required to attend or otherwise comply with the notice.

(2) The Information Commissioner may serve a notice to attend requiring immediate attendance by a person if—

(a) the Information Commissioner considers on reasonable grounds that a delay in the person's attendance is likely to result in—

(i) evidence being lost or destroyed; or

(ii) the commission of an offence; or

(iii) the escape of the person on whom the notice is served; or

(iv) serious prejudice to the purpose for which the notice was issued; or

(b) the person on whom the notice is served consents to immediate attendance.

(3) A notice to produce or attend directed to a natural person must be served by serving a copy of the notice on the person personally.

(4) A notice to produce or attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.



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(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

83D Office of the Information Commissioner to report to the Victorian Inspectorate on issue of notice to produce or attend Within 3 days after the issue of a notice to produce or attend, the Information Commissioner must give a written report to the Victorian Inspectorate specifying—

(a) the name of the person to whom the notice relates; and

(b) the reasons why the notice was issued.

83E Power to take evidence on oath or affirmation

(1) The Information Commissioner may require a person attending an examination, in accordance with a notice to attend, to give evidence on oath or affirmation.

(2) The Information Commissioner, or a person authorised to do so by the Commissioner, may administer an oath or affirmation to a person for the purposes of subsection (1).

(3) A person must not, without reasonable excuse, refuse or fail to take an oath or make an affirmation when required to do so by the Information Commissioner under subsection (1).




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(4) A person does not commit an offence against subsection (3) unless, before the person is required to take the oath or make the affirmation, the Information Commissioner informs the person that refusal or failure to do so without reasonable excuse is an offence.

83F Legal advice and representation A person may seek legal advice, and be represented by a legal practitioner in relation to—

(a) a notice to produce or attend that is directed to the person and the notice relates to—

(i) a conciliation conducted by the Information Commissioner; or

(ii) the issue of a compliance notice by the Information Commissioner; or

(b) the person's rights, liabilities, obligations and privileges in relation to the notice to produce or attend.

83G Protection of legal practitioners and persons—notice to produce or attend

(1) A legal practitioner representing the person who is served with a notice to produce or attend has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.

(2) A person who is served with a notice to produce or attend has the same protection and immunity as a witness has in a proceeding in the Supreme Court.



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83H Failure to comply with notice to produce or attend A person who is served with a notice to produce or attend, must not, without reasonable excuse, refuse or fail to comply with a requirement set out in the notice—

(a) to attend before the Information Commissioner; or

(b) to give information; or

(c) to answer a question or produce a document.


83I Reasonable excuse—self-incrimination Without limiting what is a reasonable excuse for the purposes of section 83H, it is a reasonable excuse to refuse or fail to comply with a requirement of the notice if the giving of the information or production of the document may tend to incriminate the person.

83J Reasonable excuse—cabinet documents and legal professional privilege

(1) Without limiting what is a reasonable excuse for the purposes of section 83H, it is a reasonable excuse for a person to refuse or fail to comply with a requirement of the notice if—

(a) the information or document—

(i) is an exempt document under section 28 of the Freedom of Information Act 1982; or



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(ii) is information that if included in a document would make that document an exempt document under that section 28; or

(b) the information or document is subject to legal professional privilege or client legal privilege.

(2) The Secretary to the Department of Premier and Cabinet may certify that information or a document described in subsection (1)(a)—

(a) in the case of information, is information which, if included in a document, would make the document an exempt document of a kind referred to in section 28(1) of the Freedom of Information Act 1982;

(b) in the case of a document, is or, if it existed, would be an exempt document of a kind referred to in section 28(1) of the Freedom of Information Act 1982.

83K Statutory secrecy not a reasonable excuse (1) It is not a reasonable excuse for a person to

refuse or fail to comply with the notice as a result of—

(a) any obligation imposed on that person, by any enactment or rule of law, to maintain secrecy in relation to the production of the document or information or the answer to a question; or

(b) any restriction imposed on that person, by any enactment or rule of law, that prohibits the disclosure of the document, information or the answer to a question.



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(2) Nothing in this section affects the operation of—

(a) Part 7 of the Protected Disclosure Act 2012; or

(b) Division 3 of Part 2 of the Independent Broad-based Anti-corruption Commission Act 2011.".

89 Commissioner to develop Victorian protective data security framework

After section 85(1) of the Privacy and Data Protection Act 2014 insert—

"(1A) The Information Commissioner may from time to time review or amend the Victorian protective data security framework.".

90 Heading to Part 6 substituted For the heading to Part 6 of the Privacy and Data Protection Act 2014 substitute—

"Part 6—General powers of Information Commissioner".

91 Division 1 of Part 6 repealed Division 1 of Part 6 of the Privacy and Data Protection Act 2014 is repealed.

92 Heading to Division 2 of Part 6 substituted For the heading to Division 2 of Part 6 of the Privacy and Data Protection Act 2014 substitute—

"Division 1—General powers of Information Commissioner".



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93 Section 103 repealed Section 103 of the Privacy and Data Protection Act 2014 is repealed.



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

In section 106 of the Privacy and Data Protection Act 2014, for "section 103(2)(c) or (h)" substitute "section 8D(1)(d) and (2)(b)".

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

In section 107 of the Privacy and Data Protection Act 2014, for "section 103(2)(c) and (i)" substitute "section 8D(1)(e) and (2)(b)".

98 Commissioner may request access to crime statistics data

In section 108 of the Privacy and Data Protection Act 2014, for "section 103(2)(c) and (i)" substitute "section 8D(1)(e) and (2)(b)".

99 Heading to Division 3 of Part 6 substituted For the heading to Division 3 of Part 6 of the Privacy and Data Protection Act 2014 substitute—

"Division 2—Reporting".



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102 Secrecy (1) For section 120(1) of the Privacy and Data

Protection Act 2014 substitute— "(1) This section applies to a person who is or has

been—


(b) the Privacy and Data Protection Deputy Commissioner; or

(c) an acting Information Commissioner or Privacy and Data Protection Deputy Commissioner; or

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

(e) a former Commissioner, acting former Commissioner or an employee of the former Commissioner; or

(f) a person to whom a former secrecy provision applied.".

(2) For the penalty at the foot of section 120(2) of the Privacy and Data Protection Act 2014 substitute—

"Penalty: 240 penalty units, or imprisonment for 2 years or both.".



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(3) In section 120(4) of the Privacy and Data Protection Act 2014—

(a) in the definition of "former Act" for "2000." substitute "2000;";

(b) insert the following definitions—

"former Commissioner means a person appointed as Commissioner for Privacy and Data Protection;

former secrecy provision means—

(a) section 67 of the Information Privacy Act 2000, as in force immediately before its repeal; or

(b) section 15 of the Commissioner for Law Enforcement Data Security Act 2005 as in force immediately before its repeal.".

103 Section 122 substituted For section 122 of the Privacy and Data Protection Act 2014 substitute—

"122 Offence to obstruct, mislead or provide false information

(1) A person must not, without reasonable excuse, wilfully obstruct, hinder or resist the Information Commissioner, the Privacy and Data Protection Deputy Commissioner, a delegate of the Information Commissioner or the Privacy and Data Protection Deputy Commissioner or a member of staff of the Office of the Victorian Information Commissioner, in—

(a) performing, or attempting to perform, a function or duty under this Act; or



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(b) exercising, or attempting to exercise, a power under this Act.


(2) A person must not, without reasonable excuse, provide information or make a statement to the Information Commissioner, the Privacy and Data Protection Deputy Commissioner, a delegate of the Information Commissioner or the Privacy and Data Protection Deputy Commissioner or a member of staff of the Office of the Victorian Information Commissioner knowing that it is false or misleading in a material particular.


(3) A person must not, without reasonable excuse, mislead or attempt to mislead the Information Commissioner, the Privacy and Data Protection Deputy Commissioner, a delegate of the Information Commissioner or the Privacy and Data Protection Deputy Commissioner or a member of staff of the Office of the Victorian Information Commissioner.

Penalty: 60 penalty units.".

104 New section 129 inserted After section 128 of the Privacy and Data Protection Act 2014 insert—

"129 Transitional provisions—Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 Schedule 3 has effect.".



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105 New Schedule 3 inserted After Schedule 2 of the Privacy and Data Protection Act 2014 insert—

"Schedule 3—Transitional provisions—Freedom of

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

1 Definition In this Schedule—

commencement day means the day on which Part 3 of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 comes into operation.

2 Office of Commissioner for Privacy and Data Protection abolished On the commencement day—

(a) the office of the Commissioner for Privacy and Data Protection is abolished and the person holding that office and any person acting in that office go out of office; and

(b) all rights, property and assets that, immediately before that day, were vested in the office of the Commissioner for Privacy and Data Protection are, by force of this clause, vested in the Office of the Victorian Information Commissioner; and

(c) all debts, liabilities and obligations of the office of the Commissioner for Privacy and Data Protection existing



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immediately before that day become, by force of this clause, debts, liabilities and obligations of the Office of the Victorian Information Commissioner; and

(d) the Information Commissioner is, by force of this clause, substituted as a party to any proceeding pending in any court or tribunal to which the Commissioner for Privacy and Data Protection was a party immediately before that day; and

(e) the Information Commissioner is, by force of this clause, substituted as a party to any arrangement or contract entered into by or on behalf of the Commissioner for Privacy and Data Protection as a party and in force immediately before that day.

3 References to Commissioner for Privacy and Data Protection On the commencement day any reference to the Commissioner for Privacy and Data Protection in any Act (other than this Act) or in any rule, regulation, order, agreement, instrument, deed or other document (by whatever name called or however described) must, so far as it relates to any period on or after that day and if not inconsistent with the context or subject matter, be construed as a reference to the Information Commissioner, in the Information Commissioner's capacity under this Act.



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4 Staff On the commencement day, any staff employed under Part 3 of the Public Administration Act 2004 immediately before the commencement day by the Commissioner for Privacy and Data Protection are taken to be employed by the Information Commissioner under section 6Q of the Freedom of Information Act 1982.

5 Codes of practice This Act as in force on and after the commencement day applies to any application to approve a code of practice or amend an approved code of practice that was received but not approved before the commencement day.

6 Public interest determinations This Act as in force on and after the commencement day applies to any application for a public interest determination or a temporary public interest determination that was received but not determined before the commencement day.

7 Information usage arrangements This Act as in force on and after the commencement day applies in relation to any application to approve an information usage arrangement or amend an approved information usage arrangement that was received but not approved before the commencement day and anything done under this Act as in force before the commencement day in relation to that application has effect for that purpose.



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8 Complaints This Act as in force immediately before the commencement day continues to apply in relation to any complaint made under Division 8 of Part 3 but not determined before the commencement day as if any reference to the Commissioner for Privacy and Data Protection were a reference to the Information Commissioner.

9 Compliance notices This Act as in force immediately before the commencement day continues to apply in relation to a written notice given before the commencement day under section 79, as in force immediately before its substitution, as if any reference to the Commissioner for Privacy and Data Protection were a reference to the Information Commissioner.

10 Protective data security standards The Information Commissioner may amend, revoke or reissue in accordance with section 87 a protective data security standard issued and in force before the commencement day.

11 Law enforcement data security standards The Information Commissioner may amend, revoke or reissue in accordance with section 92 a law enforcement data security standard issued and in force before the commencement day.

12 Reports for reporting periods which end before commencement day

(1) This clause applies if—

(a) a reporting period has ended before the commencement day; and



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(b) the Commissioner for Privacy and Data Protection has not prepared an annual report referred to in section 116 for that reporting period before that day.

(2) On and after the commencement day, the Information Commissioner must prepare an annual report for the reporting period in accordance with section 116.

(3) The annual report may be prepared as a composite report with the report prepared under clause 14 of Schedule 1 to the Freedom of Information Act 1982.



13 Annual reports for reporting periods which end on or after the commencement day

(1) This clause applies if a reporting period ends on or after the commencement day.

(2) On and after the commencement day, the Information Commissioner must prepare a report in accordance with section 116 for the part of the reporting period occurring before the commencement day and include that report in the Information Commissioner's first report under that section after the end of the reporting period.





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14 Report to Minister (1) This clause applies if the Commissioner for

Privacy and Data Protection has not prepared a report requested under section 111 before the commencement day.

(2) On and after the commencement day, the Information Commissioner must prepare the report in accordance with section 111 as in force before the commencement day.".

106 Amendment of references to Commissioner for Privacy and Data Protection

(1) In section 3 of the Privacy and Data Protection Act 2014—

(a) in the definition of law enforcement data security standards, for "Commissioner" substitute "Information Commissioner";

(b) in the definition of protective data security standards, for "Commissioner" substitute "Information Commissioner".

(2) In sections 25, 29, 30, 35, 36, 38, 41, 47, 49, 53, 54, 64, 67, 69, 77, 83, 86, 112(1) and (3), 113, 117 and 124 of the Privacy and Data Protection Act 2014, for "Commissioner" (wherever occurring) substitute "Information Commissioner".

(3) In the heading to sections 31, 39, 47, 55, 58, 61, 62, 63, 64, 85, 86, 92, 106, 108, 109 and 121 of the Privacy and Data Protection Act 2014, for "Commissioner" substitute "Information Commissioner".

(4) In the heading to sections 48 and 49 of the Privacy and Data Protection Act 2014, for "Commissioner's" substitute "Information Commissioner's".



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(5) In sections 21(4)(d), 32, 34, 37, 52, 56, 58(1), 59, 60, 61, 65, 72(1), 73, 74, 82, 85, 87, 89(5) and 109 of the Privacy and Data Protection Act 2014, for "Commissioner" substitute "Information Commissioner".

(6) In sections 22, 23, 26, 66, 71, 78, 106 and 108 of the Privacy and Data Protection Act 2014—

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

(b) for "Commissioner's" substitute "Information Commissioner's".

(7) In sections 31, 39 and 50 of the Privacy and Data Protection Act 2014—


(b) for "Internet site of the Commissioner" substitute "Internet site of the Office of the Victorian Information Commissioner".

(8) In section 42 of the Privacy and Data Protection Act 2014, for "of the Commissioner" substitute "of the Office of the Victorian Information Commissioner".


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

(b) for "Commissioner's" (wherever occurring) substitute "Information Commissioner's".

(10) In section 51(1) of the Privacy and Data Protection Act 2014, for "a Commissioner's" substitute "the Information Commissioner's".



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(b) for "Internet site of the Commissioner" substitute "Internet site of the Office of the Victorian Information Commissioner".



(b) in subsection (4), for "employees in the office of the Commissioner" substitute "members of staff of the Office of the Victorian Information Commissioner".



(b) for "Commissioner's" substitute "Information Commissioner's";

(c) for "an employee in the office of the Commissioner" substitute "a member of staff of the Office of the Victorian Information Commissioner".


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

(b) for "the Commissioner" substitute "the Information Commissioner".



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(15) In section 92 of the Privacy and Data Protection Act 2014, for "The Commissioner" (wherever occurring) substitute "The Information Commissioner".

(16) In the heading to section 107 of the Privacy and Data Protection Act 2014, for "Commissioner may" substitute "Information Commissioner may".


(a) for "The Commissioner" substitute "The Information Commissioner";

(b) for "the Commissioner" (wherever occurring) substitute "the Information Commissioner";

(c) for "the Commissioner's" substitute "the Information Commissioner's".


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

(b) for "Commissioner's" substitute "Information Commissioner's".



(b) for "Commissioner's" (where twice occurring) substitute "Information Commissioner's".



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(20) In section 116(1) of the Privacy and Data Protection Act 2014—


(b) for "Commissioner's" (where twice occurring) substitute "Information Commissioner's".


(a) for "employee of the Commissioner" substitute "a member of staff of the Office of the Victorian Information Commissioner";

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

Part 4—Amendment of Victorian Inspectorate Act 2011


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107 Definitions In section 3(1) of the Victorian Inspectorate Act 2011—

(a) after paragraph (c) in the definition of coercive power insert—

"(d) in relation to an officer of the Office of the Victorian Information Commissioner, the power to issue a notice under—

(i) sections 49KB, 61I(4) and 61P(2) of the Freedom of Information Act 1982; or

(ii) section 68 or 79 of the Privacy and Data Protection Act 2014;";

(b) insert the following definitions—


Office of 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 Office of the Victorian Information Commissioner means—

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



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(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;".

108 Objects 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.".

109 Functions 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



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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;



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(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).".

110 Delegation 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".

111 New 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 42A Coercive 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)—



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(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.".

112 Complaints 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



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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.".

113 Investigation 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)".



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114 Own 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.".

115 Conduct 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—



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(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.".



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116 Requirement 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.".

117 Conduct 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.".

118 Content 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;".



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(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".

119 Legal 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".

120 Powers 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—



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(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).".

121 Privileges 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.



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(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.".

122 New 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—



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(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



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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).

85B Recommendation 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.



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(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.".

123 Recommendations 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)".

124 Advice 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".



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125 Outcome 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);



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(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.".

126 Matters 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



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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.".

127 Exemption 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


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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

128 Definitions 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;".

129 Section 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



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(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 130 Definitions

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


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



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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;".

131 Accountability 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";



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(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".



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132 New 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

69 Functions 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


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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

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

"2 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;".

Division 4—Amendments to other Acts 134 Consequential 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


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Part 7—Repeal of amending Act 135 Repeal 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


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Schedule 1—Consequential amendments 1 Audit 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;".

2 City of Melbourne Act 2001 2.1 In 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;".

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

3 Commission 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;".



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4 Corrections Act 1986 4.1 In 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)".

4.2 In 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)".

5 Crimes Act 1958 5.1 In 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.".

5.2 In section 464ZGK(2)—

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

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



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(c) after paragraph (g) insert—

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

6 Disability Act 2006 For section 108(b) substitute—

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

7 Education 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".

8 Electoral 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".



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9 Food 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.".

10 Health Records Act 2001 10.1 In 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.

10.2 In 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—".



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10.3 In section 51(3)—

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

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

11 Local Government Act 1989 11.1 In section 3(1)—

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


"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;".

11.2 In 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".



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12 Mental 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;".

13 Ombudsman Act 1973 13.1 In section 2(1)—

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


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

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

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

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

13.5 In 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";



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

(b) item 5 is repealed.

13.6 For item 4 of Schedule 3 substitute—

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

14 Protected 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.

15 Public Administration Act 2004 15.1 In 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.

15.2 In 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.



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16 Serious 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;".

17 Unclaimed 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".

18 Victoria 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;".

19 Victorian Civil and Administrative Tribunal Act 1998

19.1 In 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)".

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



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19.3 In 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.".

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

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

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

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

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

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

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Endnotes


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Endnotes 1 General information

See www.legislation.vic.gov.au 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."