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Freedom of Information and Victorian
Inspectorate Acts Amendment Bill 2014
Amended Print
EXPLANATORY MEMORANDUM
General
The Freedom of Information and Victorian Inspectorate Acts Amendment
Bill 2014 amends the Freedom of Information Act 1982 (FOI Act) and the
Victorian Inspectorate Act 2011 (VI Act).
The aim of the Bill is to support and enhance Victoria's integrity regime,
in particular by allowing for the appointment by the Governor in Council of
Assistant Freedom of Information Commissioners under the FOI Act.
The Bill--
· provides greater guidance in relation to time limits and notification
requirements by, and to, the Freedom of Information Commissioner;
and
· facilitates the effective and informal resolution of reviews and
complaints; and
· ensures that many of the functions of the Freedom of Information
Commissioner may be undertaken by, or delegated to, members of
staff.
The Bill also amends the VI Act to improve processes associated with
obtaining evidence from persons in custody and to set specific penalties
for a body corporate that is found guilty of an offence under the VI Act
(and establish that any officers of a body corporate knowingly concerned in
the commission of certain offences by the body corporate are also guilty of
those offences).
571439 1 BILL LA AMENDED 8/8/2014
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that that the main purpose of the Bill is to amend the
Freedom of Information Act 1982 and the Victorian
Inspectorate Act 2011.
Clause 2 provides that the Bill will come into operation on the day after
the day on which it receives Royal Assent, with the exception of
section 28, which comes into operation on a day to be
proclaimed, with a default commencement date of 1 August
2015.
PART 2--FREEDOM OF INFORMATION ACT 1982
Clause 3 inserts the definitions Assistant Commissioner and business day
into section 3 of the FOI Act. Assistant Commissioner means an
Assistant Freedom of Information Commissioner appointed
under Part IA of the FOI Act.
Clause 4 amends section 6AA of the FOI Act. Section 6AA currently
provides that the FOI Act does not entitle a person to access a
document that is in the possession of the Freedom of Information
Commissioner or a contractor, agent or other person acting for or
on behalf of the Freedom of Information Commissioner. The Bill
amends section 6AA to provide that the FOI Act also does not
entitle a person to access a document that is in the possession of
an Assistant Commissioner or a contractor, agent or other person
acting for or on behalf of an Assistant Commissioner.
Clause 5 makes a minor amendment to section 6C(1)(b) of the FOI Act,
relating to the function of the Freedom of Information
Commissioner to conduct reviews of decisions by agencies on
requests, to refer to the relevant Division and Part of the FOI Act
under which such reviews are conducted, consistent with
section 6C(1)(c), which relates to the function of the Freedom of
Information Commissioner to receive and handle complaints.
The clause also inserts a new subsection (4) into section 6C to
require that the Freedom of Information Commissioner perform
functions and exercise powers under any Acts with as little
formality and technicality as possible. The intention of the
provision is to promote a practical and efficient approach to the
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exercise of the Freedom of Information Commissioner's
functions.
Clause 6 inserts new sections 6DA, 6DB and 6DC in the FOI Act, which
deal with the appointment, functions, powers and responsibilities
of Assistant Commissioners.
New section 6DA provides for the appointment of Assistant
Commissioners. The Governor in Council may appoint an
eligible person to be an Assistant Commissioner, and a person is
eligible if they would be eligible for appointment as Freedom of
Information Commissioner in accordance with section 6D.
The Governor in Council may appoint as many Assistant
Commissioners as are required.
New section 6DB sets out the functions and powers of Assistant
Commissioners. The functions of Assistant Commissioners will
be--
· to conduct, in accordance with Division 1 of Part VI,
reviews of decisions by agencies on requests; and
· to handle complaints in accordance with Part VIA; and
· to assist the Freedom of Information Commissioner in
the management the Freedom of Information
Commissioner's office; and
· any other functions conferred under legislation.
An Assistant Commissioner must have regard to the object of the
FOI Act when performing any function or exercising any power
under the FOI Act, and must perform functions and exercise
powers under any Acts with as little formality and technicality
as possible.
New section 6DC provides that an Assistant Commissioner is
responsible to the Freedom of Information Commissioner for the
due performance of the Assistant Commissioner's functions and
exercise of the Assistant Commissioner's powers. However, the
existence of this responsibility does not empower the Freedom of
Information Commissioner to give an Assistant Commissioner a
direction in relation to the conduct of a review under Division 1
of Part VI or the handling of a complaint under Part VIA.
Consequently, while an Assistant Commissioner will generally
be responsible to the Freedom of Information Commissioner for
the due performance of their functions and exercise of their
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powers, the Freedom of Information Commissioner will have no
power to intervene in the conduct of specific reviews or the
handling of specific complaints by an Assistant Commissioner.
Clause 7 amends sections 6E, 6F and 6G of the FOI Act so that provisions
relating to terms and conditions of appointment, remuneration,
and vacancy and resignation will apply to Assistant
Commissioners as well as the Freedom of Information
Commissioner.
Clause 7 also inserts a new section 6H(6) in the FOI Act which
provides for the removal from office of an Assistant
Commissioner by the Governor in Council on the specified
grounds of misconduct, neglect of duty, or inability to perform
the duties of office, or on any other ground on which the
Governor in Council is satisfied that the Assistant Commissioner
is unfit to hold office. This process differs from that applying to
the Freedom of Information Commissioner, who may only be
removed from office by resolution of both Houses of Parliament.
Clause 8 inserts a new section 6I(1A) in the FOI Act which provides for
the appointment by the Minister of an acting Assistant
Commissioner. The Minister may appoint a person eligible to be
appointed as an Assistant Commissioner as an acting Assistant
Commissioner within 6 months after an Assistant Commissioner
ceases to hold office; or during any or all periods when an
Assistant Commissioner is absent from duty or from the State or
for another reason cannot perform the functions of office, or
when an Assistant Commissioner is acting as the Freedom of
Information Commissioner.
Clause 8 makes various other technical amendments to section 6I
of the FOI Act.
New section 6I(4A) provides that the Minister may remove an
Assistant Commissioner at any time.
Section 6I(5) is amended to provide that, where a person is acting
as an Assistant Commissioner, that person has and may exercise
all the powers of an Assistant Commissioner and must exercise
all the functions of an Assistant Commissioner, and is entitled to
be paid the remuneration of an Assistant Commissioner.
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Clause 9 amends section 6K of the FOI Act to clarify that the Freedom of
Information Commissioner may delegate to staff functions and
powers relating to the conduct of a review and the handling of a
complaint. For example, these could include attending offices
and inspecting documents, conducting preliminary inquiries and
referring matters back to an agency for reconsideration.
However, the power to make a fresh decision under section 49P
on an application for review or to make a recommendation under
section 61L in relation to a complaint is not delegable under this
section.
Clause 9 also inserts a new section 6K(2) in the FOI Act which
provides that the Freedom of Information Commissioner may
delegate to an Assistant Commissioner any of the Freedom of
Information Commissioner's functions and powers except the
power to prepare a report under Part VII or the power of
delegation conferred by the new section. Given that Assistant
Commissioners will share the Freedom of Information
Commissioner's functions in relation to reviews and complaints
pursuant to section 6DB, it is expected that this delegation power
would only be used in relation to the Freedom of Information
Commissioner's other functions and powers under section 6C.
Finally, clause 9 inserts a new section 6K(3) which provides that
an Assistant Commissioner may delegate to a staff member any
of the Assistant Commissioner's functions except the power to
make a fresh decision under section 49P on a review, the power
to make a recommendation under section 61L in relation to a
complaint and the power of delegation itself.
Clause 10 inserts a new section 49B(3) in ther FOI Act which allows the
Freedom of Information Commissioner to accept an application
for review outside the statutory time limit if the Freedom of
Information Commissioner is satisfied that the delay in making
the application occurred as a result of an act or omission of the
agency concerned.
Clause 11 inserts 2 new subsections into section 49D of the FOI Act which
allow the Freedom of Information Commissioner, at any time
during the conduct of a review, to provide a copy of the
application for review to the affected agency. The Freedom of
Information Commissioner must obtain the consent of the
applicant to provide a copy of the application. The Freedom of
Information Commissioner may provide a copy of the application
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on request by the affected agency or on the Freedom of
Information Commissioner's own initiative.
Clause 12 substitutes new sections 49EA and 49F for current section 49F of
the FOI Act.
New section 49EA provides that, on receipt of an application for
review, the Freedom of Information Commissioner must refer the
application to an Assistant Commissioner or determine to deal
with the application directly, without referral to an Assistant
Commissioner. To facilitate the timely and efficient referral of
applications, section 49EA(2) provides that the Freedom of
Information Commissioner is not required to consider the
subject-matter of an application for review or to make
preliminary inquiries or consult with the parties before making
a referral.
Substituted section 49F provides that an Assistant Commissioner
or, where there has been no referral, the Freedom of Information
Commissioner, may review a decision that is the subject of
the application. In reviewing a decision, the Assistant
Commissioner has all the functions, and may exercise all the
powers, of the Freedom of Information Commissioner.
Any reference to the Freedom of Information Commissioner in
Part VI and Divisions 1 and 2 of Part VII includes a reference to
the Assistant Commissioner. A decision of an Assistant
Commissioner on review is taken to be a decision of the Freedom
of Information Commissioner.
Clause 13 inserts new section 49H(4) in the FOI Act which confirms that
the Freedom of Information Commissioner may rely on the
advice and assistance of a member of staff in making preliminary
inquiries in relation to a review, conducting a review, and making
a fresh decision on a review.
Clause 14 replaces sections 49L and 49M of the FOI Act with new
sections 49L, 49M and 49MA. The new provisions provide
greater certainty in relation to timelines and notification
requirements for agencies, applicants and the Freedom of
Information Commissioner for review matters that have been
referred back to the agency for reconsideration, or that have
been reconsidered by the agency at its own initiative.
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New section 49L amends the original provision in a number of
ways. Section 49L(3) establishes that the required period for
completing a review under section 49J is suspended from the
time the Freedom of Information Commissioner refers the matter
back to the agency.
If the agency makes a fresh decision, new section 49L(5) requires
the agency to revoke the earlier decision, and, when notifying the
applicant of the fresh decision, to also inform them of the
requirements of subsections (6) and (7).
Section 49L(6) requires the applicant to advise the Freedom of
Information Commissioner in writing within 28 days of being
notified by the agency of the fresh decision whether they agree
with the decision. If the applicant fails to do so within the
required period, section 49L(7) provides that they are taken to
have agreed for the purposes of section 49MA(1).
New section 49M amends the original provision in a number of
ways. Section 49M(1) provides that an agency may notify the
Freedom of Information Commissioner and applicant that the
agency is reconsidering the matter that is the subject of the
review at the agency's own initiative, and in doing so may make
a fresh decision. Section 49M(2) provides that the agency has
28 days after the notification under section 49M(1) to make a
fresh decision, unless the agency and Freedom of Information
Commissioner agree in writing to another period.
Section 49M(3) establishes that the required period for
completing the review under section 49J is suspended from the
time the agency notifies the Freedom of Information
Commissioner that it is reconsidering a matter.
Subsection 49M(4) requires the agency to notify the Freedom of
Information Commissioner within 3 business days of making a
fresh decision whether or not a fresh decision has been made.
If the agency makes a fresh decision, subsection 49M(5) requires
the agency to revoke the earlier decision and, when notifying the
applicant of the fresh decision, to also inform them the
requirements of subsections (6) and (7).
Section 49M(6) requires the applicant to advise the Freedom of
Information Commissioner in writing within 28 days of being
notified by the agency of the fresh decision whether they agree
with the decision. If the applicant fails to do so within the
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required period, section 49L(7) provides that they are taken to
have agreed for the purposes of section 49MA(1).
New section 49MA sets out the procedure after reconsideration
under section 49L or 49M. Section 49MA(1) provides that, if the
applicant agrees with a fresh decision made by an agency under
section 49L or 49M, the Freedom of Information Commissioner
must dismiss the review. Agreement with a fresh decision
includes deemed agreement in accordance with section 49L(7)
and 49M(7). Section 49MA(2) provides that, if the applicant
does not agree with the fresh decision, the Freedom of
Information Commissioner must complete the review on the
basis of the fresh decision, and the required period for doing so
under section 49J is 30 days from when the applicant advises the
Commissioner that they do not agree with the fresh decision.
Section 49MA(3) sets out the procedure to apply where the
agency has not made a fresh decision under section 49L or 49M
within the specified period. In these circumstances, the Freedom
of Information Commissioner must recommence the review and
complete it within 14 days after the earlier of the date on which
the agency gives notice of the decision having been given, or the
date on which that notice is required to be given.
Section 49MA(4) provides that, where the fresh decision of the
agency is to refuse to grant access to a document on the basis that
it is a Cabinet document or a document affecting national
security, the Freedom of Information Commissioner cannot
complete a review of that decision.
Clause 15 inserts a new section 49OA in the FOI Act, which provides
clarification in relation to the operation of section 25A(5).
Section 25A(5) provides that an agency may refuse a request for
access to documents without identifying the documents if it is
apparent from the description of the documents in the request
that they are exempt documents, and it is apparent from the
description that no obligation would arise to provide access to
an edited copy of the document, or that the person making the
request would not wish to have access to an edited copy.
Section 25A(5) does not require the agency to identify the
documents to which the request relates. New section 49OA(1)
confirms that, in reviewing a decision of an agency to refuse a
request under section 25A(5), the Freedom of Information
Commissioner must determine whether to refuse the request
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under section 25A(5), without requesting the agency to search for
or otherwise identify the documents to which the request relates;
that is, only in reliance on the details provided in the request and
any other information used by the agency to make the decision.
Such information may include consultation with the person
making the request regarding the option of having access to an
edited copy of the requested document or documents.
New section 49OA(2) provides that nothing in section 49OA(1)
prevents the Commissioner exercising a power under section 63C
(in relation to documents claimed by the relevant agency to be
exempt) if the Commissioner determines that the request should
not have been refused under section 25A(5).
Clause 16 amends section 49P of the FOI Act which deals with the Freedom
of Information Commissioner's decision on a review.
Section 49P(5) is amended to insert "if practicable" after "must".
Current section 49P(5) requires that, where the Freedom of
Information Commissioner makes a decision to disclose a
document that is claimed to be exempt on the basis that it would
unreasonably disclose information relating to the personal affairs
of a person, or that it would disclose trade secrets or other
business, commercial or financial matters the disclosure of which
would disadvantage an undertaking, the Freedom of Information
Commissioner must notify the affected person or undertaking of
their right to make an application for review of the decision.
The amendment qualifies the requirement so that the Freedom
of Information Commissioner must only notify the person or
undertaking where it is practicable to do so, bringing
section 49P(5) into line with sections 33(3) and 53A(1) and (3)
of the FOI Act.
New section 49P(6) is inserted to provide that an Assistant
Commissioner must notify the Freedom of Information
Commissioner of the Assistant Commissioner's decision under
section 49P.
Clause 17 repeals section 50(3E) of the FOI Act and inserts a new
section 50(3FA). This provides that the agency must, as soon as
practicable, notify the Freedom of Information Commissioner
of an application for review of a decision by or relating to the
Freedom of Information Commissioner to the Victorian Civil and
Administrative Tribunal. This amends the current arrangement
under existing section 50(3E) which requires the applicant to
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notify the Freedom of Information Commissioner of an
application for review in relation to a failure of the Freedom of
Information Commissioner to make a decision within the relevant
time.
Clause 18 inserts a new section 61A(5) in the FOI Act which allows the
Freedom of Information Commissioner to accept a complaint
made outside the statutory time limit if the Freedom of
Information Commissioner is satisfied that the delay in making
the complaint occurred as a result of an act or omission of the
agency concerned.
Clause 19 inserts a new section 61AB in the FOI Act which provides that,
on receipt of a complaint, the Freedom of Information
Commissioner must refer the complaint to an Assistant
Commissioner or determine to deal with the complaint directly,
without referral to an Assistant Commissioner. To facilitate the
timely and efficient referral of complaints, section 61AB(2)
provides that the Freedom of Information Commissioner is not
required to consider the subject-matter of a complaint or to make
preliminary inquiries or consult with the parties before making a
referral.
New sections 61AB(3) and (4) provide that, when dealing with a
complaint, the Assistant Commissioner has all the functions, and
may exercise all the powers, of the Freedom of Information
Commissioner. Any reference to the Freedom of Information
Commissioner in Part VIA and Divisions 1 and 2 of Part VII
includes a reference to the Assistant Commissioner.
A recommendation of an Assistant Commissioner on a complaint
is taken to be a recommendation of the Freedom of Information
Commissioner.
Clause 20 inserts a new section 61I(5) in the FOI Act which confirms that
the Freedom of Information Commissioner may rely on advice
and assistance of a member of staff in conducting preliminary
inquiries into a complaint, otherwise dealing with a complaint,
and making recommendations under section 61L in relation to a
complaint.
Clause 21 inserts new section 61L(9) in the FOI Act which provides that if
the complaint is dealt with by the Assistant Commissioner, the
Assistant Commissioner must notify the Freedom of Information
Commissioner of any recommendations or referrals.
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Clause 22 amends section 63C of the FOI Act to confirm that a member of
staff of the Freedom of Information Commissioner, or contractor,
agent or other person engaged by the Freedom of Information
Commissioner, may inspect or make copies of documents where
appropriate.
Clause 23 substitutes a new section 63D of the FOI Act and relates to use
of documents produced to the Freedom of Information
Commissioner in the course of a review or complaint that are
claimed to be exempt. It replaces previous section 63D which
applies to any document (exempt or otherwise) produced to the
Freedom of Information Commissioner in a review or complaint.
New sections 63D(2) and (3) provide that the Freedom of
Information Commissioner must do all things necessary to ensure
that only a specified person has access to the document or its
contents and that penalties apply to specified persons who
intentionally or recklessly disclose the document other than in
accordance with the FOI Act.
New section 63D(4) provides that a specified person may, to the
extent practicable without disclosing exempt matter, disclose the
nature of the document if to do so may assist in the resolution of
the review or complaint, and the agency head or nominee gives
prior written consent to the disclosure.
New sections 63D(5) and (6) allow the Freedom of Information
Commissioner to copy exempt documents (unless they are
Cabinet documents, documents affecting national security or law
enforcement documents), to the extent necessary for the
performance of the Freedom of Information Commissioner's
functions. On completion of the review or complaint process, the
Freedom of Information Commissioner is required to return to
the agency any documents or copies of documents provided by
the agency.
Clause 24 inserts a new section 70 in the FOI Act which contains
transitional provisions. These provide that the Freedom of
Information Commissioner may refer an existing review or
complaint to an Assistant Commissioner and that the new
timelines and notification requirements imposed by new
sections 49L, 49M and 49MA only apply to applications for
review received on or after the day these amendments come into
operation.
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PART 3--VICTORIAN INSPECTORATE ACT 2011
Clause 25 inserts definitions of detained person and person in charge into
section 3 of the VI Act.
Clause 26 inserts a Note at the foot of section 43(1) of the VI Act referring
the reader to other relevant sections.
Clause 27 inserts a new section 48A in the VI Act which confirms the
ability of a person who makes a complaint to withdraw the
complaint at any time after making it, unless it is a protected
disclosure complaint. The Victorian Inspectorate may continue
to investigate on its own motion a complaint that is withdrawn.
Clause 28 inserts a new section 57A in the VI Act which sets out a process
for bringing a person who is in custody before the Victorian
Inspectorate in accordance with a written direction.
The direction must be in the prescribed form and must include
a statement that the direction does not apply to a person who is
under the age of 16. While the person is absent from prison or a
police gaol, the person is in the legal custody of the police officer
who is responsible for delivering the person to the Victorian
Inspectorate. The person remains in the custody of the police
officer until the person is excused by the Victorian Inspectorate
from attendance and returned to the prison or police gaol from
which the person was removed.
Clause 29 inserts a new section 92A in the VI Act which sets out a process
for detained persons to provide information, make a complaint or
make a protected disclosure. This process includes a requirement
on the person in charge to take all reasonable steps to facilitate
the communication by the detained person with the Victorian
Inspectorate. The person in charge must immediately forward
any correspondence between the Victorian Inspectorate and the
detained person, unless the person in charge suspects that any
correspondence contains drugs, weapons or other contraband.
An offence applies to any person (including a person in charge)
for preventing or hindering the forwarding, unopened, of a letter
from a detained person to the Victorian Inspectorate, or from the
Victorian Inspectorate to a detained person.
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Clause 30 inserts new sections 97A and 97B in the VI Act.
New section 97A(1) provides that, if a body corporate commits
an offence against a specified provision, an officer of the body
corporate also commits an offence against the provision if the
officer authorised or permitted the commission of the offence, or
was knowingly concerned in any way in the commission of the
offence by the body corporate.
New section 97A(2) specifies offence provisions of the VI Act to
which section 97A(1) applies. New section 97A(3) provides that
an officer of a body corporate may rely on a defence that would
be available to the body corporate were it charged with the
offence with which the officer is charged. New section 97A(4)
provides that an officer of a body corporate may commit an
offence against a specified provision whether or not the body
corporate has been prosecuted for, or found guilty of, an offence
against a specified provision. New section 97A(5) defines body
corporate and officer for the purposes of the section.
New section 97A(6) states that this section does not affect the
operation of sections 323 and 324 of the Crimes Act 1958 or
section 52 of the Magistrates Court Act 1989.
New section 97B provides that if a body corporate is found guilty
of an offence against the Act or its regulations and the court has
power to fine the body corporate, it may, unless the contrary
intention appears, impose on the body corporate a fine not greater
than 5 times the amount of the maximum fine that could be
imposed by the court on a natural person found guilty of the same
offence committed at the same time.
Clause 31 inserts Notes into the VI Act. The Notes are inserted at the
foot of each provision that creates an offence to which new
section 97A applies, and advert to the existence of new
section 97A.
PART 4--REPEAL OF AMENDING ACT
Clause 32 provides that the Bill is repealed on 1 August 2016. The repeal
does not affect the continuing operation of the amendments made
by the Bill (see section 15(1) of the Interpretation of
Legislation Act 1984).
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