Northern Territory Second Reading Speeches

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INFORMATION AMENDMENT BILL (NO. 2) 2015

Madam Speaker, I move that the bill be now read a second time.

The purpose of the bill is to amend the
Information Act to transfer jurisdiction for the hearing of complaints from the Information Commissioner to the Northern Territory Civil and Administrative Tribunal, or NTCAT, and reform of the complaint process to facilitate the hearing of complaints by the tribunal and to improve the pathway of complaints.

The
Information Act provides for the public access to government information and the personal information held by government and the responsible collection and handling of personal information by public sector organisations. Also, it promotes appropriate records in archives management in the public sector.

One of the primary functions of the Information Commissioner under the
Information Act is to carry out investigations and hearings in relation to complaints about breaches of privacy and freedom of information decisions by public sector organisations.

The procedures for making complaints to the Information Commissioner and their resolution are currently set out in Part 7 of the
Information Act.

In order for a complaint to be determined it must pass through three, possibly four, stages: acceptance, investigation, mediation and hearing. A hearing of the Information Commissioner in relation to a complaint against a decision by a public sector organisation is essentially a merits review of that decision.


You will be aware that NTCAT was established to provide a centralised system for the review of the merits and decisions by government agencies. Part 2 of the bill therefore inserts a new part 7A into the
Information Act under which NTCAT is vested with jurisdiction to hear and determine information complaints referred to it by the Information Commissioner under the new section 112A of the Information Act.

The current process under the
Information Act is that the complaint is made to the Information Commissioner under either section 103, about freedom of information decision by the public sector organisation, or under section 104, about a breach of privacy by a public sector organisation.

The Information Commissioner must accept or reject the complaint. If she accepts the complaint she must investigate the complaint under section 110 following an investigation. The Information Commissioner must determine whether there is sufficient prima facia evidence to substantiate the complaint. If there is not she must dismiss the complaint. If there is she must refer the complaint for mediation. If mediation is successful the complaint maybe finalised under section 112 of the
Information Act. If mediation fails the Information Commissioner must hold a hearing in relation to the complaint.

The new process provided by the bill is substantially the same except where mediation fails. The complainant under the new section 112A(1), or the respondent under the new section 112(2), may apply to the Information Commissioner to refer the complaint to NTCAT which must conduct a hearing now referred to as the proceeding in relation to it.


Under the new section 112A(1)(b) a complainant may also apply to the Information Commissioner to refer to the NTCAT a decision by the Information Commissioner under section 110(5) to dismiss a complaint on the grounds that there was insufficient evidence to substantiate the complaint. So long as the requirements under the new section 112A are satisfied the Commissioner cannot refuse to refer an application under that section.


The new section 112B provides that within 60 days of referring the complaint under the new section 112A to the NTCAT, the Information Commissioner must prepare a written report in relation to the complaint and her investigation of the complaint under section 110 of the
Information Act.
A copy of the report and any other documents and materials the Information Commissioner considers relevant must be provided to the NTCAT and the parties. Importantly, the new section 112B(2) enables the Information Commissioner to (inaudible) the report or any other accompanying documents or materials that are provided to the complainant and respondent. This is necessary to ensure that confidential information is not disclosed to a party, and that any information sought by the complainant party is not prematurely disclosed, that is unless and until the NTCAT determines that the information should be disclosed.


Providing the NTCAT with this information early on will also assist in ensuring the NTCAT is able to conduct proceedings in an efficient and timely manner.


Once a complaint has been referred to the NTCAT, new sections 113A and 113B together provide that it must conduct a proceeding in relation to the complaint in accordance with the
Information Act, and its review under the Northern Territory Civil and Administrative Tribunal Act. Where the matter being considered is a decision by the Information Commissioner under section 110(5), dismissing a complaint for want of evidence and the NT confirms the Information Commissioner’s decision, the NTCAT may make any orders it considers necessary or incidental to give effect to that decision.

If the NTCAT decides the complaint should not have been dismissed, the NTCAT may, further to any powers it has under the
Northern Territory Civil and Administrative Tribunal Act, refer the complaint to the Information Commissioner for mediation under section 111 of the Information Act. The NTCAT may do this regardless of whether or not the mediation occurred prior to the complaint being dismissed. Alternatively, the NTCAT may conduct a proceeding in relation to the matter complained of, as it had been referred to the Information Commissioner under the new section 112A(1)(a) or (2).

The new section 113D(6) provides that where a matter is referred back to the Information Commissioner for mediation and the mediation fails, the complainant or the respondent may apply to the Information Commissioner under the new section 112A to refer the matter to NTCAT. Currently under the
Information Act, a person aggrieved by a decision of the Information Commissioner, including a decision in relation to a hearing, may appeal to the Supreme Court on a question of law.

Consistent with this policy, clause 43 amends section 129 to provide that a person aggrieved by the outcome of a proceeding by the NTCAT may appeal to the Supreme Court on a question of law. The time frame for the appeal to the Supreme Court is 60 days from the date of the decision. This section also continues to apply to decisions of the Information Commissioner, including complaints determined or dismissed under the new section 110(2)(c) and (2)(d).


To facilitate this referral of jurisdiction to NTCAT, and to improve the pathway for complaints, the bill also makes a number of consequential and procedural amendments to the complaint process under the
Information Act. Most of these amendments have been developed in consultation with the Office of the Information Commissioner.

The following are the main such amendments.


Clause 24, the new section 110(2)(e) provides that the Information Commissioner may, at any time after accepting the complaint, refer it to mediation under section 111 of the
Information Act. Currently the Information Commissioner may also refer a matter to mediation once she has made a final determination, and that there is sufficient prima facie evidence to support the complaint. However, it is the Information Commissioner’s view that many of the complaints she receives would potentially be resolved by mediation, thus negating the expenditure of the time and resources required to conduct an investigation.

In the evident that an early mediation fails, if the Commissioner subsequently finds there is sufficient
prima facie evidence to substantiate the complaint, the complainant or respondent can still apply to have the matter referred to NTCAT in accordance with the new section 112A of the Information Act.

Clause 24, in the new section 110(2)(a) provides that that the Commissioner may require public sector organisation to seek the views of a third party in relation to disclosure of information during an investigation. The new section 113C of the
Information Act provides NTCAT with the same power. It is necessary as the complaints often involve multiple third parties, who are not all identified until the Information Commissioner has commenced her investigation of a complaint. Unfortunately, the Information Act does not currently specify who is required to consult with third parties once a complaint has been made to the Information Commissioner.

As the Information Commissioner does not have the resources to conduct the administrative work required to locate and consult with third parties, it is necessary that the work is conducted by the respondent public sector organisation.


The process of Freedom of Information applications is generally resource intensive and requires specialised training. Coupled with the small size of many public sector organisations and the number of trained information officers within these organisations, it is often difficult to process these applications in an efficient and timely manner. Accordingly, clause 10 of the bill inserts a new section 39A, which provides that the public sector organisation may refer an application for review under section 38 to the Information Commissioner to be dealt with under a complaint under section 103 of the
Information Act.

Clause 19 of the bill makes necessary consequential amendments to section 103. The new section 103(2) also enables the Information Commissioner to refer a complaint back to the public sector organisation to conduct a further review of the decision under Part 3 Division 4, regardless of whether it was referred to the Information Commissioner as a complaint under the new section 39A


Clause 24 in the new sections 102(2)(b) and (2)(c) provide that if the complaint is made by a third party in relation to the decision by the public sector organisation to provide another person with access to information about the third party, the commissioner can determine the complaint by deciding not to provide the original applicant with access to the information if they are satisfied they no longer wish to be provided with access to the information about the third party. The commissioner cannot make such a determination without the consent of the respondent public sector organisation.


Clause 49 inserts a new Part 13 into the
Information Act which provides for transitional matters following the commencement of the amendments made by this bill to the Information Act.

Part 3 of the bill in clause 51 consequently amends the
Alcohol Mandatory Treatment Act by amending the definition of ‘information’ in section 140(5) of that act to reflect a new definition of ‘personal information’ in the new section 4A of the Information Act inserted by clause 5 of this bill.

Finally, the bill also amends the offences in the
Information Act to apply to the principles of the criminal responsibility as set out in Part 2AA of the Criminal Code Act. The amendments proposed in this bill give effect to recent administrative law reforms and will also significantly improve the complaints process under the Information Act.

Mr Deputy Speaker, I commend the bill to honourable members and table a copy of the explanatory statement.


Debate adjourned.

 


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