INFORMATION COMMISSIONER BILL 2009
This is a Bill, not an Act. For current law, see the Acts databases.
INFORMATION COMMISSIONER BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Information Commissioner Bill 2009
No. , 2009
(Cabinet Secretary)
A Bill for an Act to establish the Office of the
Information Commissioner, and for related
purposes
i Information Commissioner Bill 2009 No. , 2009
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Definitions
.........................................................................................
2
Part 2--Office of the Information Commissioner
4
Division 1--Introduction
4
4
Guide to this Part ............................................................................... 4
Division 2--Establishment
5
5 Establishment
.....................................................................................
5
6 Definition
of
information officers ...................................................... 5
Division 3--Functions and powers of the information officers
6
7 Definition
of
information commissioner functions ............................ 6
8 Definition
of
freedom of information functions ................................. 6
9 Definition
of
privacy functions .......................................................... 7
10
Functions and powers of the Information Commissioner .................. 8
11
Functions and powers of the Freedom of Information
Commissioner .................................................................................... 8
12
Functions and powers of the Privacy Commissioner ......................... 9
Part 3--Appointments and staffing for the Office of the
Information Commissioner
11
Division 1--Introduction
11
13
Guide to this Part ............................................................................. 11
Division 2--The information officers
12
14 Appointment
....................................................................................
12
15
General terms and conditions of appointment ................................. 12
16 Restriction
on
outside employment ................................................. 13
17 Remuneration
...................................................................................
13
18
Leave of absence .............................................................................. 13
19 Resignation
......................................................................................
13
20 Termination
of
appointment ............................................................ 14
21 Acting
appointments
........................................................................
14
22 Disclosure
of
interests ...................................................................... 15
Division 3--Staff, consultants and delegations
16
23 Staff
.................................................................................................
16
24 Consultants
......................................................................................
16
Information Commissioner Bill 2009 No. , 2009 ii
25
Delegation by the Information Commissioner ................................. 16
Part 4--Information Advisory Committee
18
26
Guide to this Part ............................................................................. 18
27 Establishment
and functions ............................................................ 18
Part 5--Miscellaneous
19
28
Guide to this Part ............................................................................. 19
29 Unauthorised
dealing
with information ........................................... 19
30 Annual
report
...................................................................................
20
31
Definition of the freedom of information matters ............................ 21
32
Definition of the privacy matters ..................................................... 22
33
Review of operation of Act .............................................................. 22
34
Privileges and immunities of the Crown .......................................... 23
35
Information officer etc. not to be sued ............................................. 23
36 Regulations
......................................................................................
23
Information Commissioner Bill 2009 No. , 2009 1
A Bill for an Act to establish the Office of the
1
Information Commissioner, and for related
2
purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the Information Commissioner Act 2009.
8
Part 1 Preliminary
Section 2
2 Information Commissioner Bill 2009 No. , 2009
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
36
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
7
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
3 Definitions
13
In this Act:
14
agency has the meaning given by the Freedom of Information Act
15
1982.
16
Freedom of Information Commissioner means the person
17
appointed under section 14 as the Freedom of Information
18
Commissioner.
19
Preliminary Part 1
Section 3
Information Commissioner Bill 2009 No. , 2009 3
freedom of information functions has the meaning given by
1
section 8.
2
freedom of information matters has the meaning given by
3
subsection 31(1).
4
Information Commissioner means the person appointed under
5
section 14 as the Information Commissioner.
6
information commissioner functions has the meaning given by
7
section 7.
8
information officer has the meaning given by section 6.
9
partial access has a meaning affected by subsection 31(3).
10
Privacy Commissioner means the person appointed under
11
section 14 as the Privacy Commissioner.
12
privacy functions has the meaning given by section 9.
13
privacy matters has the meaning given by section 32.
14
15
Part 2 Office of the Information Commissioner
Division 1 Introduction
Section 4
4 Information Commissioner Bill 2009 No. , 2009
Part 2--Office of the Information Commissioner
1
Division 1--Introduction
2
4 Guide to this Part
3
This Part establishes the Office of the Information Commissioner.
4
The Office of the Information Commissioner consists of the
5
information officers and the staff of the Office.
6
The information officers are the Information Commissioner, the
7
Freedom of Information Commissioner and the Privacy
8
Commissioner. The Information Commissioner is the head of the
9
Office (for the purposes of the Public Service Act 1999).
10
The functions of the Office are as follows:
11
(a)
the freedom of information functions, which are
12
about giving the Australian community access to
13
information held by the Commonwealth
14
Government in accordance with the Freedom of
15
Information Act 1982 (and other Acts);
16
(b)
the privacy functions, which are about protecting
17
the privacy of individuals in accordance with the
18
Privacy Act 1988 (and other Acts);
19
(c)
the information commissioner functions, which are
20
strategic functions concerning information
21
management by the Commonwealth Government.
22
All of the information officers may perform the freedom of
23
information functions and the privacy functions.
24
Only the Information Commissioner can perform the information
25
commissioner functions.
26
27
Office of the Information Commissioner Part 2
Establishment Division 2
Section 5
Information Commissioner Bill 2009 No. , 2009 5
Division 2--Establishment
1
5 Establishment
2
(1) The Office of the Information Commissioner is established by this
3
section.
4
(2) The Office of the Information Commissioner consists of:
5
(a) the information officers; and
6
(b) the staff mentioned in Part 3.
7
(3) For the purposes of the Public Service Act 1999:
8
(a) the information officers and staff of the Office of the
9
Information Commissioner together constitute a Statutory
10
Agency; and
11
(b) the Information Commissioner is the Head of that Statutory
12
Agency.
13
Note:
The Information Commissioner holds an office equivalent to that of a
14
Secretary of a Department (see the definition of Agency Head in
15
section 7 of the Public Service Act 1999).
16
6 Definition of information officers
17
Each of the following is an information officer:
18
(a) the Information Commissioner;
19
(b) the Freedom of Information Commissioner;
20
(c) the Privacy Commissioner.
21
22
Part 2 Office of the Information Commissioner
Division 3 Functions and powers of the information officers
Section 7
6 Information Commissioner Bill 2009 No. , 2009
Division 3--Functions and powers of the information
1
officers
2
7 Definition of information commissioner functions
3
The
information commissioner functions are as follows:
4
(a) to report to the Minister on any matter that relates to the
5
Commonwealth Government's policy and practice with
6
respect to:
7
(i) the collection, use, disclosure, management,
8
administration or storage of, or accessibility to,
9
information held by the Government; and
10
(ii) the systems used, or proposed to be used, for the
11
activities covered by subparagraph (i);
12
(b) any other function conferred by this Act or another Act (or an
13
instrument under this Act or another Act) on the Information
14
Commissioner other than a freedom of information function
15
or a privacy function.
16
8 Definition of freedom of information functions
17
The
freedom of information functions are as follows:
18
(a) promoting awareness and understanding of the Freedom of
19
Information Act 1982 and the objects of that Act (including
20
all the matters set out in sections 3 and 3A of that Act);
21
(b) assisting agencies under section 8E of the Freedom of
22
Information Act 1982 to publish information in accordance
23
with the information publication scheme under Part II of that
24
Act;
25
(c) the functions conferred by section 8F of the Freedom of
26
Information Act 1982;
27
(d) providing information, advice, assistance and training to any
28
person or agency on matters relevant to the operation of the
29
Freedom of Information Act 1982;
30
(e) issuing guidelines under section 93A of the Freedom of
31
Information Act 1982;
32
(f) making reports and recommendations to the Minister about:
33
Office of the Information Commissioner Part 2
Functions and powers of the information officers Division 3
Section 9
Information Commissioner Bill 2009 No. , 2009 7
(i) proposals for legislative change to the Freedom of
1
Information Act 1982; or
2
(ii) administrative action necessary or desirable in relation
3
to the operation of that Act;
4
(g) monitoring, investigating and reporting on compliance by
5
agencies with the Freedom of Information Act 1982;
6
(h) reviewing decisions under Part VII of the Freedom of
7
Information Act 1982;
8
(i) undertaking investigations under Part VIIB of the Freedom of
9
Information Act 1982;
10
(j) collecting information and statistics from agencies and
11
Ministers about the freedom of information matters (see
12
section 31) to be included in annual reports under section 30;
13
(k) any other function conferred on the Information
14
Commissioner by the Freedom of Information Act 1982;
15
(l) any other function conferred on the Information
16
Commissioner by another Act (or an instrument under
17
another Act) and expressed to be a freedom of information
18
function.
19
9 Definition of privacy functions
20
(1)
The
privacy functions are functions conferred on the Information
21
Commissioner by an Act (or an instrument under an Act), if the
22
functions:
23
(a) relate to the privacy of an individual; and
24
(b) are not freedom of information functions.
25
(2) The functions mentioned in subsection (1) include, but are not
26
limited to, the provisions in the following table.
27
28
Provisions that confer privacy functions
Item Legislation
Provision
1
Privacy Act 1988
Division 2 of Part IV
2
Crimes Act 1914
Division 5 of Part VIIC
3
Data-matching Program (Assistance
and Tax) Act 1990
Sections 12 to 14, and the Schedule
Part 2 Office of the Information Commissioner
Division 3 Functions and powers of the information officers
Section 10
8 Information Commissioner Bill 2009 No. , 2009
Provisions that confer privacy functions
Item Legislation
Provision
4
National Health Act 1953 Section
135AA
5
Telecommunications Act 1997 Section
309
10 Functions and powers of the Information Commissioner
1
(1) The Information Commissioner has the following functions:
2
(a) the information commissioner functions;
3
(b) the freedom of information functions;
4
(c) the privacy functions.
5
(2) The Information Commissioner has power to do all things
6
necessary or convenient to be done for or in connection with the
7
performance of functions conferred by this section.
8
11 Functions and powers of the Freedom of Information
9
Commissioner
10
(1) The Freedom of Information Commissioner has the freedom of
11
information functions.
12
(2) The Freedom of Information Commissioner may also perform the
13
privacy functions.
14
(3) The Freedom of Information Commissioner has power to do all
15
things necessary or convenient to be done for or in connection with
16
the performance of functions conferred by this section.
17
(4) However, the following actions may only be taken with the
18
approval of the Information Commissioner:
19
(a) the issue, variation or revocation of a guideline mentioned in
20
paragraph 8(e);
21
(b) the making of a report or recommendation under paragraph
22
8(f) to the Minister about:
23
(i) proposals for legislative change to the Freedom of
24
Information Act 1982; or
25
(ii) administrative action necessary or desirable in relation
26
to the operation of that Act.
27
Office of the Information Commissioner Part 2
Functions and powers of the information officers Division 3
Section 12
Information Commissioner Bill 2009 No. , 2009 9
(5) If the Freedom of Information Commissioner performs a function,
1
or exercises a power, expressed by an Act (or an instrument under
2
an Act) to be conferred on the Information Commissioner:
3
(a) the Freedom of Information Commissioner must perform the
4
function or exercise the power upon his or her own belief or
5
state of mind (to the extent that the performance or exercise
6
is dependent on the belief or state of mind of the Information
7
Commissioner); and
8
(b) the function or power is taken to have been performed or
9
exercised by the Information Commissioner; and
10
(c) neither the Information Commissioner, nor the Privacy
11
Commissioner, is prevented from performing the same
12
function, or exercising the same power, on another occasion
13
(in relation to a different matter).
14
12 Functions and powers of the Privacy Commissioner
15
(1) The Privacy Commissioner has the privacy functions.
16
(2) The Privacy Commissioner may also perform the freedom of
17
information functions (whether or not the Privacy Commissioner
18
holds the qualifications mentioned in subsection 14(3)).
19
(3) The Privacy Commissioner has power to do all things necessary or
20
convenient to be done for or in connection with the performance of
21
functions conferred by this section.
22
(4) However, the following actions may only be undertaken with the
23
approval of the Information Commissioner:
24
(a) the issue, variation or revocation of the Code of Conduct
25
under section 18A of the Privacy Act 1988;
26
(b) approvals, variations or revocations of a privacy code under
27
paragraph 27(1)(aa) of the Privacy Act 1988;
28
(c) the preparation, and publication, or variation or revocation, of
29
guidelines under paragraph 27(1)(e) or (ea), or paragraph
30
28A(1)(e), of the Privacy Act 1988;
31
(d) the issue, variation or revocation of guidelines for the
32
purposes of paragraph 27(1)(p) or (pa), or paragraph
33
28(1)(a), of the Privacy Act 1988;
34
Part 2 Office of the Information Commissioner
Division 3 Functions and powers of the information officers
Section 12
10 Information Commissioner Bill 2009 No. , 2009
(e) the making of a report or recommendation to the Minister in
1
relation to any matter that concerns the need for or the
2
desirability of legislative or administrative action in the
3
interests of the privacy of individuals under paragraph
4
27(1)(r) of the Privacy Act 1988;
5
(f) the making, variation or revocation of a determination for the
6
purposes of paragraph 28A(1)(d) of the Privacy Act 1988;
7
(g) advising the Minister whether an exclusion from the
8
application of Division 3 of Part VIIC of the Crimes Act 1914
9
should be granted and whether there should be any
10
restrictions on the circumstances in which an exclusion
11
would apply under paragraph 85ZZ(1)(b) of that Act.
12
(5) If the Privacy Commissioner performs a function, or exercises a
13
power, expressed by an Act (or an instrument under an Act) to be
14
conferred on the Information Commissioner:
15
(a) the Privacy Commissioner must perform the function or
16
exercise the power upon his or her own belief or state of
17
mind (to the extent that the performance or exercise is
18
dependent on the belief or state of mind of the Information
19
Commissioner); and
20
(b) the function or power is taken to have been performed or
21
exercised by the Information Commissioner; and
22
(c) neither the Information Commissioner, nor the Freedom of
23
Information Commissioner, is prevented from performing the
24
same function, or exercising the same power, on another
25
occasion (in relation to a different matter).
26
27
Appointments and staffing for the Office of the Information Commissioner Part 3
Introduction Division 1
Section 13
Information Commissioner Bill 2009 No. , 2009 11
Part 3--Appointments and staffing for the Office of
1
the Information Commissioner
2
Division 1--Introduction
3
13 Guide to this Part
4
This Division provides for:
5
(a)
the appointment of the information officers; and
6
(b)
the staff of the Office of the Information
7
Commissioner, who are engaged under the Public
8
Service Act 1999.
9
The Information Commissioner may engage consultants.
10
The Information Commissioner may delegate all of his or her
11
functions or powers, other than the information commissioner
12
functions, the preparation of reports, the making of certain
13
instruments (such as guidelines and determinations) and certain
14
formal procedural steps.
15
16
Part 3 Appointments and staffing for the Office of the Information Commissioner
Division 2 The information officers
Section 14
12 Information Commissioner Bill 2009 No. , 2009
Division 2--The information officers
1
14 Appointment
2
Appointment of the Information Commissioner
3
(1) The Information Commissioner is to be appointed by the
4
Governor-General by written instrument.
5
Appointment of the Freedom of Information Commissioner
6
(2) The Freedom of Information Commissioner is to be appointed by
7
the Governor-General by written instrument.
8
(3) A person may only be appointed as the Freedom of Information
9
Commissioner if he or she has obtained a degree from a university,
10
or an educational qualification of a similar standing, after studies in
11
the field of law.
12
Appointment of the Privacy Commissioner
13
(4) The Privacy Commissioner is to be appointed by the
14
Governor-General by written instrument.
15
Note:
The information officers are all eligible for reappointment: see
16
subsection 33(4A) of the Acts Interpretation Act 1901.
17
15 General terms and conditions of appointment
18
(1) An information officer holds office for the period specified in the
19
information officer's instrument of appointment. The period must
20
not exceed 5 years.
21
(2) An information officer holds office on a full-time basis.
22
(3) An information officer holds office on the terms and conditions (if
23
any), in relation to matters not covered by this Act, that are
24
determined by the Governor-General.
25
Appointments and staffing for the Office of the Information Commissioner Part 3
The information officers Division 2
Section 16
Information Commissioner Bill 2009 No. , 2009 13
16 Restriction on outside employment
1
An information officer must not engage in paid employment
2
outside the duties of his or her office without the Minister's
3
approval.
4
17 Remuneration
5
(1) An information officer is to be paid the remuneration that is
6
determined by the Remuneration Tribunal. If no determination of
7
remuneration by the Tribunal is in operation, the information
8
officer is to be paid the remuneration that is prescribed by the
9
regulations.
10
(2) An information officer is to be paid the allowances that are
11
prescribed by the regulations.
12
(3) This section has effect subject to the Remuneration Tribunal Act
13
1973.
14
18 Leave of absence
15
(1) An information officer has the recreation leave entitlements that
16
are determined by the Remuneration Tribunal.
17
(2) The Minister may grant an information officer leave of absence,
18
other than recreation leave, on the terms and conditions as to
19
remuneration or otherwise that the Minister determines.
20
19 Resignation
21
(1) An information officer may resign his or her appointment by
22
giving the Governor-General a written resignation.
23
(2) The resignation takes effect on the day it is received by the
24
Governor-General or, if a later day is specified in the resignation,
25
on that later day.
26
Part 3 Appointments and staffing for the Office of the Information Commissioner
Division 2 The information officers
Section 20
14 Information Commissioner Bill 2009 No. , 2009
20 Termination of appointment
1
(1) The Governor-General may terminate the appointment of an
2
information officer for misbehaviour or physical or mental
3
incapacity.
4
(2) The Governor-General must terminate the appointment of an
5
information officer if any of the following apply:
6
(a) the information officer:
7
(i) becomes bankrupt; or
8
(ii) applies to take the benefit of any law for the relief of
9
bankrupt or insolvent debtors; or
10
(iii) compounds with his or her creditors; or
11
(iv) makes an assignment of his or her remuneration for the
12
benefit of his or her creditors;
13
(b) the information officer is absent, except on leave of absence,
14
for 14 consecutive days or for 28 days in any 12 months;
15
(c) the information officer engages, except with the Minister's
16
approval, in paid employment outside the duties of his or her
17
office;
18
(d) the information officer fails, without reasonable excuse, to
19
comply with section 22 (disclosure of interests).
20
21 Acting appointments
21
(1) The Minister may, by written instrument, appoint a person to act as
22
an information officer:
23
(a) during a vacancy in the office of the information officer
24
(whether or not an appointment has previously been made to
25
the office); or
26
(b) during any period, or during all periods, when the
27
information officer:
28
(i) is absent from duty or from Australia; or
29
(ii) is, for any reason, unable to perform the duties of the
30
office.
31
(2) A person appointed to act during a vacancy mentioned in
32
paragraph (1)(a) must not act for more than 12 months.
33
Appointments and staffing for the Office of the Information Commissioner Part 3
The information officers Division 2
Section 22
Information Commissioner Bill 2009 No. , 2009 15
(3) A person must not be appointed to act as the Freedom of
1
Information Commissioner unless he or she is qualified, as
2
mentioned in subsection 14(3), to be appointed as the Freedom of
3
Information Commissioner.
4
(4) Anything done by or in relation to a person purporting to act under
5
an appointment is not invalid merely because of any of the
6
following:
7
(a) the occasion for the appointment had not arisen;
8
(b) there was a defect or irregularity in connection with the
9
appointment;
10
(c) the appointment had ceased to have effect;
11
(d) the occasion to act had not arisen or had ceased.
12
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
13
22 Disclosure of interests
14
An information officer must give written notice to the Minister of
15
all interests, pecuniary or otherwise, that the information officer
16
has or acquires and that conflict or could conflict with the proper
17
performance of the information officer's functions.
18
19
Part 3 Appointments and staffing for the Office of the Information Commissioner
Division 3 Staff, consultants and delegations
Section 23
16 Information Commissioner Bill 2009 No. , 2009
Division 3--Staff, consultants and delegations
1
23 Staff
2
The staff of the Office of the Information Commissioner must be
3
persons engaged under the Public Service Act 1999.
4
24 Consultants
5
(1) The Information Commissioner may, on behalf of the
6
Commonwealth, engage consultants to assist in the performance of
7
the functions and the exercise of the powers of the Information
8
Commissioner (see section 10).
9
(2) However, a consultant engaged under subsection (1) may only
10
perform a function, or exercise a power, if the function or power
11
can be delegated to a member of staff of the Office of the
12
Information Commissioner under section 25.
13
25 Delegation by the Information Commissioner
14
The Information Commissioner may delegate, in writing, all or any
15
of his or her functions or powers to a member of staff of the Office
16
of the Information Commissioner, other than the following:
17
(a) the information commissioner functions conferred by
18
paragraph 7(a) (reporting to the Minister);
19
(b) preparing the report mentioned in section 30;
20
(c) issuing guidelines as mentioned in paragraph 8(e);
21
(d) the function conferred by section 55H of the Freedom of
22
Information Act 1982 (referring questions of law in a review
23
to the Federal Court of Australia);
24
(e) the function conferred by section 55K of the Freedom of
25
Information Act 1982 (making a decision on an IC review);
26
(f) the function conferred by section 55Q of the Freedom of
27
Information Act 1982 (correcting errors in IC review
28
decisions);
29
(g) the function conferred by section 73 of the Freedom of
30
Information Act 1982 (discretion not to investigate a
31
complaint);
32
Appointments and staffing for the Office of the Information Commissioner Part 3
Staff, consultants and delegations Division 3
Section 25
Information Commissioner Bill 2009 No. , 2009 17
(h) the function conferred by section 86 of the Freedom of
1
Information Act 1982 (obligation to notify on completion of
2
investigation);
3
(i) the function conferred by sections 89 and 89A of the
4
Freedom of Information Act 1982 (implementation notices
5
and reports);
6
(j) the function conferred by section 89K of the Freedom of
7
Information Act 1982 (making a vexatious applicant
8
declaration);
9
(k) issuing guidelines under section 17 of the Privacy Act 1988;
10
(l) making determinations for the purposes of section 52 of the
11
Privacy Act 1988.
12
13
Part 4 Information Advisory Committee
Section 26
18 Information Commissioner Bill 2009 No. , 2009
Part 4--Information Advisory Committee
1
2
26 Guide to this Part
3
This Part establishes an Information Advisory Committee to assist
4
and advise the Information Commissioner on matters relating to
5
the performance of the information commissioner functions.
6
27 Establishment and functions
7
(1) There is to be an Information Advisory Committee, with the
8
function of assisting and advising the Information Commissioner in
9
matters relating to the performance of the information
10
commissioner functions.
11
(2) The Committee consists of the following persons:
12
(a) the Information Commissioner, as Chair;
13
(b) senior offices of agencies nominated in writing by the
14
Minister, in consultation with the relevant Ministers;
15
(c) such other persons as the Minister thinks fit and who, in the
16
Minister's opinion, hold suitable qualifications or experience.
17
(3) A Committee member appointed by the Minister for the purposes
18
of paragraph (2)(c) is entitled to be paid travel allowance in
19
accordance with the regulations.
20
(4) However, a person covered by subsection (3) is not entitled to be
21
paid any remuneration or allowances in relation to the holding of
22
the position of Committee member other than any travel allowance
23
that is prescribed for the purposes of subsection (3).
24
25
Miscellaneous Part 5
Section 28
Information Commissioner Bill 2009 No. , 2009 19
Part 5--Miscellaneous
1
2
28 Guide to this Part
3
This Part deals with a number of other matters relevant to the
4
operation of the Office of the Information Commissioner. These
5
are as follows:
6
(a)
an offence for unauthorised dealings with
7
information;
8
(b)
the requirements for annual reports;
9
(c)
immunity from legal suit;
10
(d)
the making of regulations.
11
29 Unauthorised dealing with information
12
(1) A person commits an offence if:
13
(a) the person makes a record of, discloses or otherwise uses
14
information; and
15
(b) the information was acquired by the person in the course of
16
performing functions or exercising powers conferred for the
17
purposes of an information commissioner function, a
18
freedom of information function or a privacy function.
19
Penalty: Imprisonment for 2 years.
20
Note:
Chapter 2 of the Criminal Code sets out the general principles of
21
criminal responsibility.
22
(2) This section does not apply if:
23
(a) the person records, discloses or otherwise uses the
24
information in the course of performing the same functions or
25
exercising the same powers as those in the course of which
26
the information was acquired; or
27
(b) the person acquires the information for any other lawful
28
purpose; or
29
Part 5 Miscellaneous
Section 30
20 Information Commissioner Bill 2009 No. , 2009
(c) the person to whom the information relates consents to the
1
recording, disclosure or use of the information.
2
Note:
A defendant bears an evidential burden in relation to the matters in
3
subsection (2) (see subsection 13.3(3) of the Criminal Code).
4
(3) A person to whom this section applies must not be required to do
5
either of the following unless that disclosure or production is
6
necessary for the purposes of this Act:
7
(a) disclose to a court information that the person acquired in the
8
course of performing functions or exercising powers under
9
this Act for the purposes of another Act (or an instrument
10
under another Act) that confers an information commissioner
11
function, a freedom of information function or a privacy
12
function;
13
(b) produce all or part of a document that contains information of
14
that kind to a court.
15
(4) For the purposes of subsection (3), court includes any tribunal,
16
authority or person having power to require the production of
17
documents or the answering of questions.
18
30 Annual report
19
(1) The Information Commissioner must, as soon as practicable after
20
the end of each financial year, prepare and give to the Minister a
21
report on the operations of the Office of the Information
22
Commissioner during that year.
23
Note:
See also section 34C of the Acts Interpretation Act 1901, which
24
contains extra rules about annual reports.
25
(2) The Minister must cause a copy of the report to be laid before each
26
House of the Parliament within 15 sitting days of that House after
27
the report is received.
28
What must be included in the report
29
(3) The report must include the following:
30
(a) the freedom of information matters (see section 31);
31
(b) the privacy matters (see section 32).
32
Miscellaneous Part 5
Section 31
Information Commissioner Bill 2009 No. , 2009 21
31 Definition of the freedom of information matters
1
(1)
The
freedom of information matters are as follows:
2
(a) information about any guidelines mentioned in paragraph
3
8(e) issued during the year and the matters to which those
4
guidelines relate;
5
(b) the number of requests under the Freedom of Information Act
6
1982 to which subsection (2) applies;
7
(c) the number of applications under section 48 of the Freedom
8
of Information Act 1982 received during the year and
9
particulars of the results of those applications;
10
(d) particulars of the total charges collected during the year in
11
dealing with requests and other applications whenever
12
received;
13
(e) the number of applications made under Part VI of the
14
Freedom of Information Act 1982 during the year for the
15
internal review of decisions, and particulars of the results of
16
those reviews;
17
(f) the number of applications made under Part VII of the
18
Freedom of Information Act 1982 during the year to the
19
Information Commissioner for the review of decisions, and
20
particulars of the results of those reviews;
21
(g) the number of applications made under Part VIIA of the
22
Freedom of Information Act 1982 during the year to the
23
Administrative Appeals Tribunal for the review of decisions,
24
and particulars of the results of those reviews;
25
(h) the number of complaints made under Part VIIB of the
26
Freedom of Information Act 1982 during the year to the
27
Information Commissioner, and particulars of the results of
28
investigations undertaken as a result of those complaints;
29
(i) a description of any efforts made by the Information
30
Commissioner to assist agencies to comply with the agency's
31
obligations under the Freedom of Information Act 1982.
32
(2) This subsection applies to a request if, during the year:
33
(a) the request was received under section 15 of the Freedom of
34
Information Act 1982; or
35
(b) access (other than partial access) to the document (or all of
36
the documents) to which the request relates was given; or
37
Part 5 Miscellaneous
Section 32
22 Information Commissioner Bill 2009 No. , 2009
(c) access to the document (or all of the documents) to which the
1
request relates was refused; or
2
(d) partial access to the document (or documents) to which the
3
request relates was granted.
4
(3) Without limiting subsection (2), and for the purposes of that
5
subsection, partial access is granted in respect of a request if either
6
or both of the following conditions are satisfied in relation to the
7
request:
8
(a) access was granted to an edited copy (within the meaning of
9
section 22 of the Freedom of Information Act 1982) of the
10
document (or any of the documents) requested;
11
(b) the request related to 2 or more documents and access was
12
refused to one or more of the documents.
13
32 Definition of the privacy matters
14
(1)
The
privacy matters are as follows:
15
(a) a statement of the performance of the privacy functions
16
conferred by paragraphs 28(1)(a) and (f) of the Privacy Act
17
1988;
18
(b) a statement about the operation of approved privacy codes
19
under the Privacy Act 1988 that contain procedures, covered
20
by subsection (2), including the following:
21
(i) action taken by adjudicators to monitor compliance with
22
the codes;
23
(ii) details about the number of complaints made under
24
codes, their nature and outcome.
25
(2) This subsection covers procedures for making and dealing with
26
complaints in relation to acts or practices that may be an
27
interference with the privacy of an individual.
28
33 Review of operation of Act
29
(1) The Minister must cause a review of the operation of this Act to be
30
undertaken.
31
(2) The review must:
32
(a) start 2 years after the commencement of this section; and
33
Miscellaneous Part 5
Section 34
Information Commissioner Bill 2009 No. , 2009 23
(b) be completed within 6 months.
1
(3) The Minister must cause a written report about the review to be
2
prepared.
3
(4) The Minister must cause a copy of the report to be laid before each
4
House of the Parliament within 15 sitting days of that House after
5
the Minister receives the report.
6
34 Privileges and immunities of the Crown
7
The Office of the Information Commissioner has the privileges and
8
immunities of the Crown.
9
35 Information officer etc. not to be sued
10
(1) This section applies to a person if:
11
(a) the person is an information officer; or
12
(b) the person is acting under the direction or authority of an
13
information officer.
14
(2) The person is not liable to an action, suit or proceeding in relation
15
to an act done or omitted to be done in good faith in the exercise or
16
purported exercise of any power or authority conferred for the
17
purposes of an information commissioner function, a freedom of
18
information function or a privacy function.
19
36 Regulations
20
The Governor-General may make regulations prescribing matters:
21
(a) required or permitted by this Act to be prescribed; or
22
(b) necessary or convenient to be prescribed for carrying out or
23
giving effect to this Act.
24
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