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Government Information (Information Commissioner) Bill 2009 No , 2009 A Bill for An Act to create the office of Information Commissioner; and for other purposes.
Clause 1 Government Information (Information Commissioner) Bill 2009 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Government Information (Information Commissioner) 4 Act 2009. 5 2 Commencement 6 This Act commences on a day or days to be appointed by proclamation. 7 3 Definitions 8 (1) In this Act: 9 agency has the same meaning as in the GIPA Act. 10 Commissioner means the Information Commissioner appointed under 11 this Act. 12 exercise a function includes perform a duty. 13 function includes a power, authority or duty. 14 GIPA Act means the Government Information (Public Access) 15 Act 2009. 16 Information Act means the GIPA Act and any other Act that is declared 17 by the regulations to be an Information Act for the purposes of this Act. 18 Joint Committee means the Committee on the Office of the 19 Ombudsman and the Police Integrity Commission constituted under the 20 Ombudsman Act 1974 or such other joint committee of members of 21 Parliament as may be appointed to exercise the functions of the Joint 22 Committee under this Act. 23 person has the same meaning as in the GIPA Act. 24 (2) Notes included in this Act do not form part of this Act. 25 Page 2
Government Information (Information Commissioner) Bill 2009 Clause 4 Appointment of Information Commissioner Part 2 Part 2 Appointment of Information Commissioner 1 4 Appointment of Information Commissioner 2 (1) The Governor may appoint an Information Commissioner. 3 (2) The Commissioner holds office for such term not exceeding 5 years as 4 may be specified in the instrument of appointment, but is eligible (if 5 otherwise qualified) for re-appointment. 6 (3) A person is not eligible to be appointed for more than 2 terms of office 7 as Commissioner (whether or not consecutive terms). 8 (4) A person is not eligible to be appointed as Commissioner or to act in that 9 office if the person is a member of the Legislative Council or of the 10 Legislative Assembly or is a member of a House of Parliament or 11 legislature of another State or Territory or of the Commonwealth. 12 (5) The office of Commissioner is a full-time office and the holder of the 13 office is required to hold it on that basis, except to the extent permitted 14 by the Governor. 15 5 Veto of proposed appointment of Commissioner 16 (1) A person is not to be appointed as Commissioner until: 17 (a) a proposal that the person be so appointed has been referred to the 18 Joint Committee under section 31BA of the Ombudsman Act 19 1974, and 20 (b) the period that the Committee has under that section to veto the 21 proposed appointment has ended without the Committee having 22 vetoed the proposed appointment or the Committee notifies the 23 Minister that it has decided not to veto the proposed appointment. 24 (2) A person may be proposed for appointment on more than one occasion. 25 (3) In this section, appointment includes re-appointment. 26 6 Remuneration 27 (1) The Commissioner is entitled to be paid: 28 (a) remuneration in accordance with the Statutory and Other Offices 29 Remuneration Act 1975, and 30 (b) such travelling and subsistence allowances as the Minister may 31 from time to time determine. 32 (2) The Commissioner is not, if a Judge of a New South Wales Court and 33 while receiving remuneration as such a Judge, entitled to remuneration 34 under this Act. 35 Page 3
Clause 7 Government Information (Information Commissioner) Bill 2009 Part 2 Appointment of Information Commissioner 7 Vacancy in office 1 The office of Commissioner becomes vacant if the holder: 2 (a) dies, or 3 (b) completes a term of office and is not re-appointed, or 4 (c) resigns the office by instrument in writing addressed to the 5 Governor, or 6 (d) is nominated for election as a member of the Legislative Council 7 or of the Legislative Assembly or as a member of a House of 8 Parliament or a legislature of another State or Territory or of the 9 Commonwealth, or 10 (e) becomes bankrupt, applies to take the benefit of any law for the 11 relief of bankrupt or insolvent debtors, compounds with his or her 12 creditors or makes an assignment of his or her remuneration for 13 their benefit, or 14 (f) becomes a mentally incapacitated person, or 15 (g) is convicted in New South Wales of an offence that is punishable 16 by imprisonment for 12 months or more or is convicted 17 elsewhere than in New South Wales of an offence that, if 18 committed in New South Wales, would be an offence so 19 punishable, or 20 (h) is removed from office under section 8. 21 8 Removal from office 22 (1) The Governor may remove the Commissioner from office on the 23 address of both Houses of Parliament. 24 (2) The Governor may suspend the Commissioner from office: 25 (a) for misbehaviour, or 26 (b) for incapacity, or 27 (c) if the Commissioner is absent from duty for a period in excess of 28 his or her leave entitlement as approved by the Governor unless 29 the absence is caused by illness or other unavoidable cause. 30 (3) The Minister is to lay or cause to be laid before each House of 31 Parliament, within 7 sitting days of that House after the Commissioner 32 has been suspended from office, a full statement of the grounds for the 33 suspension. 34 (4) The suspension is to be lifted unless each House of Parliament, within 35 21 sitting days from the time when the statement was laid before it, 36 declares by resolution that the Commissioner ought to be removed from 37 office. 38 Page 4
Government Information (Information Commissioner) Bill 2009 Clause 9 Appointment of Information Commissioner Part 2 (5) If each House does so declare within that period, the Commissioner is 1 to be removed from office by the Governor. 2 (6) For the purposes of this section, sitting days are to be counted whether 3 or not they occur in the same session. 4 9 Filling of vacancy 5 If the office of Commissioner becomes vacant, a person is, subject to 6 this Act, to be appointed to fill the vacancy. 7 10 Public Sector Employment and Management Act 2002 8 The Public Sector Employment and Management Act 2002 does not 9 apply to the appointment of the Commissioner, and the holder of that 10 office is not, as holder, subject to that Act. 11 11 Appointment of acting Commissioner 12 (1) The Minister may, from time to time, appoint a person to act in the 13 office of the Commissioner during the illness or absence of the 14 Commissioner or during a vacancy in the office of the Commissioner. 15 The person, while so acting, has all the functions of the Commissioner 16 and is taken to be the Commissioner. 17 (2) The Minister may, at any time, remove a person from office as acting 18 Commissioner. 19 (3) An acting Commissioner is entitled to be paid such remuneration 20 (including travelling and subsistence allowances) as the Minister may 21 from time to time determine. 22 12 Staff of Commissioner 23 The staff of the Commissioner are to be employed under Chapter 1A of 24 the Public Sector Employment and Management Act 2002. 25 13 Delegation 26 The Commissioner may delegate the exercise of any function of the 27 Commissioner (other than this power of delegation) to: 28 (a) any member of staff of the Commissioner, or 29 (b) any person, or any class of persons, authorised for the purposes 30 of this section by the regulations. 31 Page 5
Clause 14 Government Information (Information Commissioner) Bill 2009 Part 3 Functions of Commissioner Part 3 Functions of Commissioner 1 Division 1 General functions of Commissioner 2 14 General functions 3 The Commissioner has such functions as may be conferred or imposed 4 on the Commissioner by or under this or any other Act. 5 15 General procedures of Commissioner 6 The Commissioner: 7 (a) is to act in an informal manner (including avoiding conducting 8 formal hearings) as far as possible, and 9 (b) is to act according to the substantial merits of the case without 10 undue regard to technicalities, and 11 (c) may determine the procedures to be followed in exercising the 12 Commissioner's functions under this Act, including the 13 procedures to be followed at an inquiry or investigation 14 conducted by the Commissioner, and 15 (d) is not bound by the rules of evidence and may inform himself or 16 herself on any matter in any way that the Commissioner 17 considers to be just. 18 16 Expert assistance 19 For the purposes of the exercise of any of the Commissioner's 20 functions, the Commissioner may engage the services of any person for 21 the purpose of getting expert assistance. 22 Division 2 Complaints 23 17 Making of complaint 24 Any person may complain to the Commissioner about the conduct 25 (including action or inaction) of an agency in the exercise of functions 26 under an Information Act, including conduct that is alleged by the 27 person to constitute a contravention of an Information Act. 28 Note. A decision of an agency that is reviewable under the GIPA Act cannot be 29 the subject of a complaint to the Commissioner (even if the person is out of time 30 to apply for review of the decision). See section 89 (4) of the GIPA Act. 31 18 Decision to deal with complaint 32 (1) The Commissioner may decide to deal with a complaint or to decline to 33 deal with a complaint. 34 Page 6
Government Information (Information Commissioner) Bill 2009 Clause 19 Functions of Commissioner Part 3 (2) The Commissioner may make preliminary inquiries for the purposes of 1 deciding how to deal with a complaint and may request further 2 information from the complainant. 3 19 How complaints are dealt with 4 (1) The Commissioner deals with a complaint by taking appropriate 5 measures to assist in the resolution of the complaint, including (but not 6 limited to) any of the following measures: 7 (a) providing information to the parties to the complaint, 8 (b) undertaking discussions concerning the complaint with the 9 parties to the complaint, 10 (c) facilitating the direct resolution of the complaint by the parties to 11 the complaint (including by conciliation or other informal 12 process). 13 (2) The Commissioner can also deal with a complaint by investigating the 14 complaint under Division 3. 15 20 Notice to complainant 16 The Commissioner must give notice to the complainant of the 17 Commissioner's decision on whether to deal with the complaint and (if 18 the Commissioner decides to deal with the complaint) how the 19 complaint is to be dealt with. 20 Division 3 Investigations 21 21 Investigation of agency systems, policies and practices 22 (1) The Commissioner may investigate and report on the exercise of any 23 functions of one or more agencies under an Information Act, including 24 the systems, policies and practices of agencies (or of agencies 25 generally) that relate to functions of agencies under an Information Act. 26 (2) The Commissioner is to give a report under this section: 27 (a) to the Minister responsible for any agency to which the report 28 relates, and 29 (b) to the principal officer of an agency that is the subject of the 30 report. 31 22 Investigation of complaints 32 (1) If the Commissioner decides to investigate a complaint, the 33 Commissioner must give notice to the complainant of the decision to 34 investigate and must give notice to an agency of the Commissioner's 35 decision to investigate a complaint about the agency. 36 Page 7
Clause 23 Government Information (Information Commissioner) Bill 2009 Part 3 Functions of Commissioner (2) The Commissioner may discontinue an investigation of a complaint at 1 any time and is to give notice of the discontinuation of an investigation 2 to the complainant and the agency concerned. 3 23 Procedure for investigations 4 (1) An investigation under this Act is to be made in the absence of the 5 public. 6 (2) In an investigation under this Act, the Commissioner must give an 7 opportunity to make submissions on the matter the subject of the 8 investigation: 9 (a) if practicable, to the agency whose conduct is the subject of 10 investigation, and 11 (b) in the case of an investigation of a complaint--to the 12 complainant. 13 (3) Where, in an investigation under this Act, the Commissioner considers 14 that there are grounds for adverse comment in respect of any person, the 15 Commissioner, before making any such comment in any report, must, 16 in so far as it is practicable to do so: 17 (a) inform that person of the substance of the grounds of the adverse 18 comment, and 19 (b) give the person an opportunity to make submissions. 20 (4) Before publishing a report on an investigation that makes an adverse 21 comment in respect of an agency, the Commissioner must inform the 22 Minister responsible for the agency that the Commissioner proposes to 23 publish such a report and must, at the request of that Minister, consult 24 the Minister. 25 24 Report on compliance with Information Act 26 (1) Where, in an investigation under this Act, the Commissioner finds that 27 any conduct of an agency the subject of the investigation is conduct that 28 constitutes a failure to exercise its functions properly in accordance with 29 any provision of an Information Act, the Commissioner must report the 30 matter: 31 (a) to the Minister responsible for the agency, and 32 (b) to the principal officer of the agency, and 33 (c) where the conduct concerns the conduct of a person employed 34 under the Public Sector Employment and Management Act 2002, 35 to the head of the Department of Premier and Cabinet. 36 (2) The Commissioner may give a copy of the report: 37 (a) where the investigation arises out of a complaint to the 38 Commissioner, to the complainant, and 39 Page 8
Government Information (Information Commissioner) Bill 2009 Clause 25 Functions of Commissioner Part 3 (b) to the agency to whose conduct the report relates. 1 (3) An agency to whose conduct the report relates who is given a copy of 2 the report may, and on request by the Commissioner must, notify the 3 Commissioner of any action taken or proposed in consequence of the 4 report. 5 Division 4 Powers of Commissioner 6 25 Agencies to give information etc 7 (1) For the purposes of or in connection with the exercise of any function 8 of the Commissioner, the Commissioner may require an agency: 9 (a) to give the Commissioner a statement of information, or 10 (b) to produce to the Commissioner any record or other thing, or 11 (c) to give the Commissioner a copy of any record. 12 (2) A requirement under this section must be in writing, must specify or 13 describe the information, record or thing required, and must fix a time 14 and specify a place for compliance. 15 (3) The disclosure of information by an agency in compliance with a 16 requirement imposed by or under this or any other Act does not 17 constitute the waiver of any privilege of the agency against disclosure 18 of the information. 19 26 Entry of premises 20 For the purposes of any investigation under this Act, the Commissioner 21 may, at any time: 22 (a) enter and inspect any premises occupied or used by an agency, 23 and 24 (b) inspect any record or thing in or on the premises. 25 27 Limits on coercive powers because of privilege etc 26 (1) The Commissioner must not exercise a coercive entry power and must 27 set aside any requirement imposed under a coercive investigative power 28 if it appears to the Commissioner that any person has a ground of 29 privilege, whereby, in proceedings in a court of law, the person might 30 resist a like requirement or the exercise of a like power, unless: 31 (a) the privilege is a privilege of an agency, or 32 (b) it appears to the Commissioner that the person has waived the 33 privilege. 34 Page 9
Clause 28 Government Information (Information Commissioner) Bill 2009 Part 3 Functions of Commissioner (2) However, the Commissioner may exercise a coercive entry or 1 investigative power despite (and is not required to set aside any 2 requirement imposed under a coercive investigative power merely 3 because of): 4 (a) any rule of law that, in proceedings in a court of law, might justify 5 an objection to compliance with a like requirement or the 6 exercise of a like power on grounds of public interest, or 7 (b) any duty of secrecy or other restriction on disclosure applying to 8 an agency. 9 (3) In this section: 10 coercive entry power means a power to inspect any premises or any 11 record or thing on premises. 12 coercive investigative power means a power to: 13 (a) require any person to give any statement of information, or 14 (b) require any person to produce any record or other thing, or 15 (c) require any person to give a copy of any record, or 16 (d) require any person to answer any question. 17 28 Powers to prevent contravention of Information Act 18 (1) If a person has engaged, is engaged or is proposing to engage in any 19 conduct that constituted, constitutes or would constitute a contravention 20 of any provision of an Information Act, the Supreme Court may, on the 21 application of the Commissioner, grant an injunction restraining the 22 person from engaging in that conduct and, if in the opinion of the Court 23 it is desirable to do so, requiring that person to do any act or thing. 24 (2) If a person has refused or failed, is refusing or failing, or is proposing to 25 refuse or fail, to do any act or thing that the person is required to do by 26 or under an Information Act, the Supreme Court may, on the application 27 of the Commissioner, grant an injunction requiring the person to do that 28 act or thing. 29 (3) If an application is made to the Court for an injunction under 30 subsection (1), the Court may, if in its opinion it is desirable to do so, 31 before considering the application, grant an interim injunction 32 restraining a person from engaging in the conduct concerned pending 33 the determination of the application. 34 (4) The Court may rescind or vary an injunction granted under this section. 35 (5) The Commissioner has standing to bring proceedings by way of judicial 36 review in connection with the exercise of the functions of an agency 37 under the GIPA Act. 38 Page 10
Government Information (Information Commissioner) Bill 2009 Clause 29 Functions of Commissioner Part 3 (6) The Commissioner does not have the function of bringing proceedings 1 for an offence under an Information Act. 2 29 Formal inquiries 3 (1) The Commissioner may make or hold inquiries for the purposes of an 4 investigation that the Commissioner conducts under this Act. 5 (2) For the purposes of any inquiry under this section, the Commissioner 6 has the powers, authorities, protections and immunities conferred on a 7 commissioner by Division 1 of Part 2 of the Royal Commissions Act 8 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies 9 to any witness summoned by or appearing before the Commissioner in 10 the same way as it applies to a witness summoned by or appearing 11 before a commissioner, but section 11 (2) of that Act is to have effect 12 subject to section 27 (Limits on coercive powers because of privilege 13 etc) of this Act. 14 (3) A witness appearing before the Commissioner is to be paid such amount 15 as the Commissioner determines, but not exceeding the amount that 16 would be payable to such a witness if he or she were a Crown witness 17 subpoenaed by the Crown to give evidence. 18 30 Cabinet proceedings 19 (1) This Act does not enable the Commissioner: 20 (a) to require any person: 21 (i) to give any statement of information, or 22 (ii) to produce any record or other thing, or 23 (iii) to give a copy of any record, or 24 (iv) to answer any question, 25 if compliance with the requirement would disclose information 26 that is Cabinet information, or 27 (b) to inspect any such record or thing. 28 (2) A certificate of the Director-General or Deputy Director-General 29 (General Counsel) of the Department of Premier and Cabinet that any 30 information, record or thing or the answer to any question comprises, 31 contains or would reveal Cabinet information is conclusive of that fact 32 for the purposes of this section. 33 (3) In this section: 34 Cabinet information means information that is Cabinet information 35 under clause 2 of Schedule 1 to the GIPA Act. 36 Page 11
Clause 31 Government Information (Information Commissioner) Bill 2009 Part 3 Functions of Commissioner Division 5 Disclosure of information 1 31 Commissioner may furnish information to Ombudsman 2 (1) The Commissioner may, at any time, furnish to the Ombudsman 3 information obtained by the Commissioner in discharging functions 4 under this or any other Act if the Commissioner is of the opinion that 5 the information relates to conduct of an agency that could be the subject 6 of a complaint under the Ombudsman Act 1974. 7 (2) However, the Commissioner must not disclose information that could 8 not otherwise be disclosed under this Act or could not be obtained by 9 the Ombudsman under the Ombudsman Act 1974 or any other Act. 10 32 Commissioner may furnish information to ICAC, DPP and PIC 11 (1) The Commissioner may, at any time, furnish information obtained by 12 the Commissioner in discharging functions under this or any other Act 13 to the Director of Public Prosecutions, the Independent Commission 14 Against Corruption or the Police Integrity Commission. 15 (2) However, the Commissioner must not disclose information that could 16 not otherwise be disclosed under this Act or could not: 17 (a) in the case of the Director of Public Prosecutions--be obtained 18 by the Director under the Director of Public Prosecutions Act 19 1986 or any other Act, or 20 (b) in the case of the Independent Commission Against Corruption-- 21 be obtained by the Commission under the Independent 22 Commission Against Corruption Act 1988 or any other Act, or 23 (c) in the case of the Police Integrity Commission--be obtained by 24 the Commission under the Police Integrity Commission Act 1996 25 or any other Act. 26 33 Commissioner may furnish information to agency 27 (1) The Commissioner may, at any time: 28 (a) furnish to an agency information obtained by the Commissioner 29 in discharging functions under this Act with respect to a 30 complaint against or relating to the agency, and 31 (b) make such comments to the agency with respect to the complaint 32 as the Commissioner thinks fit. 33 (2) The Commissioner may also furnish any or all of the information 34 referred to in subsection (1) to any other agency, and may make such 35 Page 12
Government Information (Information Commissioner) Bill 2009 Clause 34 Functions of Commissioner Part 3 comments (if any) to that agency as the Commissioner considers 1 appropriate, if: 2 (a) the Commissioner is satisfied that the information concerned is 3 relevant to the functions, policies, procedures or practices of that 4 other agency, and 5 (b) the information does not disclose any personal information 6 (within the meaning of either the Privacy and Personal 7 Information Protection Act 1998 or the Health Records and 8 Information Privacy Act 2002). 9 34 Ombudsman may furnish information to Commissioner 10 (1) The Ombudsman may at any time furnish to the Commissioner 11 information obtained by the Ombudsman in discharging functions 12 under the Ombudsman Act 1974 or any other Act if the Ombudsman is 13 of the opinion that the information relates to conduct of an agency that 14 could be the subject of a complaint to the Commissioner under this Act. 15 (2) However, the Ombudsman must not disclose information that could not 16 otherwise be disclosed under the Ombudsman Act 1974 or could not be 17 obtained by the Commissioner under this or any other Act. 18 35 Restriction on disclosure of information by Commissioner 19 The Commissioner must not, in the exercise of functions under this Act, 20 disclose any information for which there is (or for which an agency 21 claims there is) an overriding public interest against disclosure, as 22 provided by the GIPA Act, unless the disclosure is authorised under this 23 Division. 24 Page 13
Clause 36 Government Information (Information Commissioner) Bill 2009 Part 4 Reports by Commissioner Part 4 Reports by Commissioner 1 36 Annual report 2 (1) The Commissioner is, as soon as practicable after 30 June in each year, 3 to prepare a report of the Commissioner's work and activities for the 4 12 months preceding that date and is to furnish the report to the 5 Presiding Officer of each House of Parliament. 6 (2) A copy of the report is to be provided to the Minister. 7 (3) The Annual Reports (Departments) Act 1985 is, in its application to the 8 annual reports of the Commissioner, modified as follows: 9 (a) letters of submission under that Act are to be made to the 10 Presiding Officer of each House of Parliament and not to the 11 appropriate Minister, 12 (b) the annual report is to be submitted to the Presiding Officer of 13 each House of Parliament and not to the appropriate Minister, 14 (c) provisions of that Act relating to the presentation of annual 15 reports to the appropriate Minister and to the public availability 16 of annual reports do not apply to the Commissioner. 17 (4) Section 39 (Procedure for reporting) applies to the annual report of the 18 Commissioner as if it were a report made or furnished under this Part. 19 37 Report on operation of GIPA Act 20 (1) The Commissioner is, as soon as practicable after 30 June in each year, 21 to prepare and publish a report on the operation of the GIPA Act 22 (generally, across all agencies) for the 12 months preceding that date 23 and is to furnish the report to the Presiding Officer of each House of 24 Parliament. 25 (2) A copy of the report is to be provided to the Minister. 26 38 Special report to Parliament 27 (1) The Commissioner may, at any time, make a special report on any 28 matter relating to the functions of the Commissioner to the Presiding 29 Officer of each House of Parliament and must also provide the Minister 30 with a copy of the report. 31 (2) The Commissioner may include in a report under this section a 32 recommendation that the report be made public immediately. 33 Page 14
Government Information (Information Commissioner) Bill 2009 Clause 39 Reports by Commissioner Part 4 39 Procedure for reporting 1 (1) Tabling 2 A copy of a report made or furnished to the Presiding Officer of a House 3 of Parliament under this Part must be laid before that House on the next 4 sitting day of that House after it is received by the Presiding Officer. 5 (2) Public reports 6 If a report includes a recommendation by the Commissioner that the 7 report be made public forthwith, the Presiding Officer of a House of 8 Parliament may make it public whether or not that House is in session 9 and whether or not the report has been laid before that House. 10 (3) Privileges and immunities 11 A report that is made public by the Presiding Officer of a House of 12 Parliament before it is laid before that House attracts the same 13 privileges and immunities as it would if it had been laid before that 14 House. 15 (4) Report procedures 16 A Presiding Officer need not inquire whether all or any conditions 17 precedent have been satisfied as regards a report purporting to have 18 been made or furnished in accordance with this Act. 19 (5) Reference to Presiding Officer 20 In this Part, a reference to a Presiding Officer of a House of Parliament 21 is a reference to the President of the Legislative Council or the Speaker 22 of the Legislative Assembly. If there is a vacancy in the office of 23 President, the reference to the President is taken to be a reference to the 24 Clerk of the Legislative Council and, if there is a vacancy in the office 25 of Speaker, the reference to the Speaker is taken to be a reference to the 26 Clerk of the Legislative Assembly. 27 Page 15
Clause 40 Government Information (Information Commissioner) Bill 2009 Part 5 Miscellaneous Part 5 Miscellaneous 1 40 Ombudsman required to consult 2 (1) If the Ombudsman receives a complaint under the Ombudsman Act 3 1974 about conduct of an agency that it appears could be the subject of 4 a complaint to the Commissioner under this Act, the Ombudsman is to 5 consult with the Commissioner on the matter. 6 (2) If the Commissioner decides to deal with the matter as a complaint 7 under this Act: 8 (a) the complaint is (to the extent that it relates to conduct that could 9 be the subject of a complaint under this Act) to be transferred to 10 the Commissioner and dealt with as a complaint made to the 11 Commissioner under this Act, and 12 (b) the Ombudsman is not to investigate the matter (and is to 13 discontinue any investigation already commenced) to the extent 14 that it relates to conduct that could be the subject of a complaint 15 under this Act. 16 41 Commissioner, officer or expert as witness 17 (1) Neither the Commissioner nor a member of staff of the Commissioner 18 is competent or compellable to give evidence or produce any document 19 in any legal proceedings in respect of any information obtained by the 20 Commissioner or member of staff in the course of the exercise of 21 functions under this or any other Act. 22 (2) Subsection (1) does not apply to any legal proceedings: 23 (a) under section 27 (Limits on coercive powers because of privilege 24 etc), 42 (Immunity of Commissioner and others) or 43 25 (Offences), or 26 (b) under Part 3 of the Royal Commissions Act 1923, or 27 (c) under Part 4 of the Special Commissions of Inquiry Act 1983. 28 (3) This section applies to a person whose services are engaged under 29 section 16 in the same way as it applies to a member of staff of the 30 Commissioner. 31 42 Immunity of Commissioner and others 32 (1) Neither the Commissioner nor a member of staff of the Commissioner 33 is liable, whether on the ground of want of jurisdiction or on any other 34 ground, to any civil or criminal proceedings in respect of any act, matter 35 or thing done or omitted to be done for the purpose of executing this or 36 any other Act unless the act, matter or thing was done, or omitted to be 37 done, in bad faith. 38 Page 16
Government Information (Information Commissioner) Bill 2009 Clause 43 Miscellaneous Part 5 (2) Civil or criminal proceedings in respect of any act or omission referred 1 to in subsection (1) cannot be brought against the Commissioner or a 2 member of staff of the Commissioner without the leave of the Supreme 3 Court. 4 (3) The Supreme Court is not to grant leave under subsection (2) unless it 5 is satisfied that there is substantial ground for the contention that the 6 person to be proceeded against has acted, or omitted to act, in bad faith. 7 43 Offences 8 (1) A person must not: 9 (a) without lawful excuse, wilfully obstruct, hinder or resist the 10 Commissioner or a member of staff of the Commissioner in the 11 exercise of functions under this or any other Act, or 12 (b) without lawful excuse, refuse or wilfully fail to comply with any 13 lawful requirement of the Commissioner under this or any other 14 Act, or 15 (c) wilfully make any false statement to or mislead, or attempt to 16 mislead, the Commissioner or a member of staff of the 17 Commissioner in the exercise of functions under this or any other 18 Act. 19 Maximum penalty: 10 penalty units. 20 (2) A person must not directly or indirectly: 21 (a) falsely represent that he or she is the Commissioner or acting 22 Commissioner, or 23 (b) falsely represent that he or she is a member of staff of the 24 Commissioner. 25 Maximum penalty: 10 penalty units. 26 (3) For the purposes of subsection (2), a person represents that a state of 27 affairs exists if the person does or says anything, or causes, permits or 28 suffers anything to be done or said, whereby it is represented, or 29 whereby a belief may be induced, that the state of affairs exists. 30 (4) A person who uses, causes, inflicts or procures any violence, 31 punishment, damage, loss or disadvantage to any person for or on 32 account of: 33 (a) his or her making a complaint to the Commissioner, or 34 (b) his or her assisting the Commissioner, or 35 Page 17
Clause 44 Government Information (Information Commissioner) Bill 2009 Part 5 Miscellaneous (c) any evidence given by him or her to the Commissioner, 1 is guilty of an indictable offence. 2 Maximum penalty: 200 penalty units or imprisonment for 5 years, or 3 both. 4 (5) An employer who dismisses any employee from his or her employment, 5 or prejudices any employee in his or her employment, for or on account 6 of the employee assisting the Commissioner is guilty of an indictable 7 offence. 8 Maximum penalty: 200 penalty units or imprisonment for 5 years, or 9 both. 10 (6) In any proceedings for an offence against subsection (5), it lies on the 11 employer to prove that any employee shown to have been dismissed or 12 prejudiced in his or her employment was so dismissed or prejudiced for 13 some reason other than the reasons mentioned in subsection (5). 14 (7) In this section, a reference to a person assisting the Commissioner is a 15 reference to a person who: 16 (a) has appeared, is appearing or is to appear as a witness before the 17 Commissioner, or 18 (b) has complied with or proposes to comply with a requirement 19 under section 25 (Agencies to give information etc), or 20 (c) has assisted, is assisting or is to assist the Commissioner in some 21 other manner. 22 44 Oversight of Commissioner's functions by Joint Committee 23 (1) The Joint Committee has the following functions under this Act: 24 (a) to monitor and review the exercise by the Commissioner of the 25 Commissioner's functions, 26 (b) to report to both Houses of Parliament, with such comments as it 27 thinks fit, on any matter appertaining to the Commissioner or 28 connected with the exercise of the Commissioner's functions to 29 which, in the opinion of the Joint Committee, the attention of 30 Parliament should be directed, 31 (c) to examine each annual and other report of the Commissioner and 32 report to both Houses of Parliament on any matter appearing in, 33 or arising out of, any such report, 34 (d) to recommend to both Houses of Parliament any changes to the 35 functions of the Commissioner that the Joint Committee thinks 36 desirable, 37 Page 18
Government Information (Information Commissioner) Bill 2009 Clause 45 Miscellaneous Part 5 (e) to inquire into any question in connection with its functions 1 which is referred to it by both Houses of Parliament, and report 2 to both Houses on that question. 3 (2) Nothing in this section authorises the Joint Committee: 4 (a) to investigate a matter relating to any particular conduct, or 5 (b) to reconsider any decision to investigate, not to investigate or to 6 discontinue investigation of any particular matter, or 7 (c) to reconsider the findings, recommendations or other decisions of 8 the Commissioner in relation to any particular matter. 9 (3) The provisions of Part 4A of the Ombudsman Act 1974 apply in relation 10 to the Joint Committee's functions under this Act in the same way as 11 they apply in relation to the Joint Committee's functions under that Act. 12 45 Personal liability of Commissioner and others 13 A matter or thing done (or omitted to be done) by the Commissioner, a 14 member of staff of the Commissioner or a person acting under the 15 direction of the Commissioner does not, if the matter or thing was done 16 (or omitted to be done) in good faith for the purpose of executing this 17 Act or any other Act, subject the Commissioner, the member of staff or 18 the person so acting personally to any action, liability, claim or demand. 19 46 Proceedings for offences 20 (1) Except where otherwise expressly provided by this Act, proceedings for 21 an offence against this Act are to be dealt with summarily before a Local 22 Court. 23 (2) If an offence against this Act is an indictable offence, a Local Court may 24 nevertheless hear and determine the proceedings in respect of such an 25 offence if the court is satisfied that it is proper to do so and the defendant 26 and prosecutor consent. 27 (3) If, in accordance with subsection (2), a Local Court convicts a person of 28 such an offence, the maximum penalty that the court may impose is: 29 (a) in the case of an individual--the smaller of: 30 (i) a fine of 50 penalty units or imprisonment for 2 years, or 31 both, or 32 (ii) the maximum penalty otherwise applicable to the offence 33 when committed by an individual, or 34 (b) in the case of a corporation--the smaller of: 35 (i) a fine of 100 penalty units, or 36 (ii) the maximum penalty otherwise applicable to the offence 37 when committed by a corporation. 38 Page 19
Clause 47 Government Information (Information Commissioner) Bill 2009 Part 5 Miscellaneous 47 Regulations 1 The Governor may make regulations, not inconsistent with this Act, for 2 or with respect to any matter that by this Act is required or permitted to 3 be prescribed or that is necessary or convenient to be prescribed for 4 carrying out or giving effect to this Act. 5 48 Review of Act 6 (1) The Minister is to review this Act to determine whether the policy 7 objectives of the Act remain valid and whether the terms of the Act 8 remain appropriate for securing those objectives. 9 (2) The review is to be undertaken as soon as possible after the period of 10 5 years from the date of assent to this Act. 11 (3) A report on the outcome of the review is to be tabled in each House of 12 Parliament within 12 months after the end of the period of 5 years. 13 Page 20
Government Information (Information Commissioner) Bill 2009 Amendment of Acts Schedule 1 Schedule 1 Amendment of Acts 1 1.1 Defamation Act 2005 No 77 2 Schedule 1 Additional publications to which absolute privilege applies 3 Insert after clause 2: 4 2A Matters relating to Information Commissioner 5 Without limiting section 27 (2) (a)(c), matter that is published: 6 (a) to or by the Information Commissioner or an acting 7 Information Commissioner in his or her capacity as the 8 Information Commissioner or an acting Information 9 Commissioner, or 10 (b) to any member of staff of the Information Commissioner 11 in his or her capacity as such a member, or 12 (c) in a report under section 38 (Special report to Parliament) 13 of the Government Information (Information 14 Commissioner) Act 2009, or 15 (d) in a copy of a report previously made public under 16 section 38 of the Government Information (Information 17 Commissioner) Act 2009 where the copy of the report is 18 published under the authority of the Minister for the time 19 being administering that Act. 20 1.2 Ombudsman Act 1974 No 68 21 [1] Section 31A Constitution of Joint Committee 22 Insert "the Government Information (Information Commissioner) Act 2009," 23 after "Police Integrity Commission Act 1996," in section 31A (2). 24 [2] Section 31BA Power to veto proposed appointments 25 Insert "Information Commissioner," after "Prosecutions," in section 26 31BA (1). 27 [3] Section 31BA (5) (b1) 28 Insert after section 31BA (5) (b): 29 (b1) in the context of an appointment of Information 30 Commissioner, a reference to the Minister administering 31 section 5 of the Government Information (Information 32 Commissioner) Act 2009, and 33 Page 21
Government Information (Information Commissioner) Bill 2009 Schedule 1 Amendment of Acts [4] Schedule 1A Agencies 1 Insert in alphabetical order: 2 Information Commissioner 3 1.3 Public Sector Employment and Management Act 2002 No 43 4 [1] Schedule 1 Divisions of the Government Service 5 Insert in alphabetical order of Divisions in Columns 1 and 2, respectively, of 6 Part 1: 7 Office of the Information Commissioner * Information Commissioner [2] Schedule 2 Executive positions (other than non-statutory SES positions) 8 Insert "Information Commissioner," after "Ombudsman," in Part 1. 9 1.4 Statutory and Other Offices Remuneration Act 1975 (1976 10 No 4) 11 Schedule 1 Public offices 12 Insert at the end of the Schedule: 13 Information Commissioner 14 Page 22
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