Victorian Numbered Acts Victorian Numbered ActsAfter Part VIA of the Freedom of Information Act 1982 insert —
(1) The Information Commissioner may, on the Commissioner's own motion, conduct an investigation in respect of—
(a) the performance or exercise of a function or obligation, under this Act, by an agency or principal officer; or
(b) the failure to perform or exercise a function or obligation, under this Act, by an agency or principal officer; or
(c) the purported performance or purported exercise of a function or obligation, under this Act, by an agency or principal officer.
(2) The Information Commissioner may not conduct an investigation in respect of—
(a) any action taken or a failure to take an action by—
(i) a Minister; or
(ii) a person employed as a Ministerial officer under Part 6 of the Public Administration Act 2004 ; or
(b) any action taken or a failure to take an action by an agency or principal officer, in the performance or purported performance of a Minister's functions or obligations under this Act.
(1) An investigation under this Part must be conducted in private.
(2) During an investigation, the Information Commissioner may serve on a person, a notice to produce or attend, in accordance with Part VIC.
As soon as practicable after the completion of an investigation, the Information Commissioner must make a report of the findings of the investigation.
(1) The Information Commissioner must not include in a report under this Division—
(a) any information that the Information Commissioner reasonably believes would prejudice a criminal investigation, criminal proceedings or any investigation by the IBAC or the Victorian Inspectorate; or
(b) any information that—
(i) if included in a document would make that document an exempt document in accordance with section 28 or 29A; or
(ii) is subject to legal professional privilege or client legal privilege; or
(c) a finding or an opinion that a specified person is guilty of or has committed, is committing or is about to commit an offence; or
(d) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for an offence.
(2) If the Information Commissioner intends to include in a report under this Division a comment or opinion that is adverse to any person, the Information Commissioner must first give the person a reasonable opportunity to respond to the adverse material, and must fairly set out each element of the person's response in the report.
(3) If the Information Commissioner intends to include in a report under this Division a comment or opinion that is not adverse to a person, the Information Commissioner must first provide that person with the relevant material in relation to which the Information Commissioner intends to name that person.
(4) If the Information Commissioner intends to include in a report under this Division any adverse finding about an agency, the Information Commissioner must first give the principal officer of that agency a reasonable opportunity to respond to the adverse material, and must fairly set out each element of the response in the report.
(5) The Information Commissioner must not include in a report under this Division any information that would identify any person who is not the subject of any adverse comment or opinion unless the Information Commissioner—
(a) is satisfied that—
(i) it is necessary or desirable to include the information in the public interest; and
(ii) including the information will not cause unreasonable damage to the person's reputation, safety or wellbeing; and
(b) states in the report that the person is not the subject of any adverse comment or opinion.
A person may seek legal advice, and be represented by, a legal practitioner in relation to a proposed report, or draft or part of a proposed report under this Division that is received by the person.
61T Tabling of report in Parliament
(1) The Information Commissioner may cause a report to be transmitted to each House of the Parliament as soon as practicable after the investigation report has been completed.
(2) The clerk of each House of the Parliament must cause the report to be laid before the House of the Parliament on the day on which it is received or on the next sitting day of the House of the Parliament.
(3) If the Information Commissioner proposes to transmit a report to the Parliament on a day on which neither House of the Parliament is sitting, the Information Commissioner must—
(a) give one business day's notice of the intention to do so to the clerk of each House of the Parliament; and
(b) give the report to the clerk of each House of the Parliament on the day indicated in the notice; and
(c) publish the report on the Internet site of the Office of the Victorian Information Commissioner as soon as practicable after giving it to the clerks.
(4) The clerk of each House of the Parliament must—
(a) notify each member of the House of the Parliament of the receipt of a notice under subsection (3)(a) on the same day that the clerk receives that notice; and
(b) give a copy of a report to each member of the House of the Parliament as soon as practicable after the report is received under subsection (3)(b); and
(c) cause the report to be laid before the House of the Parliament on the next sitting day of the House of the Parliament.
(1) A notice to produce or attend may require a person—
(a) to produce a specified document to the Information Commissioner by or before a specified time and in a specified manner; or
(b) to attend at a specified time and place on a specified date to produce documents to the Information Commissioner; or
(c) to attend an examination before the Information Commissioner to give evidence and to produce documents at a specified time and place on a specified date; or
(d) to attend the Information Commissioner at a specified time and place to produce a specified document.
(2) A notice under this section must contain the following information—
(a) a statement that—
(i) failure to comply with the notice without reasonable excuse may be an offence; and
(ii) includes the maximum penalty for that offence;
(b) examples of what may constitute a reasonable excuse for failing to comply with the notice.
(1) The Information Commissioner, by further written notice served on a person, may at any time vary or revoke a notice to produce or attend served on the person.
(2) A notice varying or revoking a notice to produce or attend must be served in accordance with section 61W.
(1) Subject to subsection (2), a notice to produce or attend must be served at a reasonable time, being not less than 7 days before the date on which the person is required to attend or otherwise comply with the notice.
(2) The Information Commissioner may serve a notice to attend requiring immediate attendance by a person if—
(a) the Information Commissioner considers on reasonable grounds that a delay in the person's attendance is likely to result in—
(i) a document or thing being lost or destroyed; or
(ii) the commission of an offence; or
(iii) the escape of the person on whom the notice is served; or
(iv) serious prejudice to the conduct of the inquiry to which the notice relates; or
(b) the person on whom the notice is served consents to immediate attendance.
(3) A notice to produce or attend directed to a natural person must be served by serving a copy of the notice on the person personally.
(4) A notice to produce or attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.
(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.
A person who is served with a notice to produce or attend must not, without reasonable excuse, refuse or fail to comply with a requirement set out in the notice—
(a) to attend before the Information Commissioner; or
(b) to give information; or
(c) to answer a question or produce a document.
Penalty: 60 penalty units.
Without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse to refuse or fail to comply with a requirement of the notice if the giving of the information or production of the document may tend to incriminate the person.
Without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse for a person to refuse or fail to comply with a requirement set out in the notice if the information or document—
(a) is an exempt document under section 29A; or
(b) is information that if included in a document would make that document an exempt document under section 29A.
(1) Subject to subsection (3), and without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse for a person to refuse or fail to comply with a requirement set out in the notice if—
(a) the information or document—
(i) is an exempt document under section 28; or
(ii) is information that if included in a document would make that document an exempt document under section 28; or
(b) the information or document—
(i) is an exempt document under section 32; or
(ii) is information that if included in a document would make that document an exempt document under section 32.
(2) The Secretary to the Department of Premier and Cabinet may certify that information or a document described in subsection (1)(a)—
(a) in the case of information, is information which, if included in a document, would make the document an exempt document of a kind referred to in section 28(1);
(b) in the case of a document, is or, if it existed, would be an exempt document of a kind referred to in section 28(1).
(3) If a notice to produce or attend is served on a person during a review of a decision that relates to a document claimed to be exempt under section 28 or 32, it is not a reasonable excuse for a person to refuse or fail to comply with the notice for the reason that the information or document—
(a) is an exempt document under section 28 or 32; or
(b) is information that if included in a document would make that document an exempt document under section 28 or 32.
(1) This section applies if—
(a) a person is required under this Part to produce a document under a notice to produce or attend; and
(b) that document is claimed to be exempt under section 28, 31 or 31A.
(2) The person must produce the document for inspection by the Information Commissioner at the premises of the agency which, or Minister who, made the claim that the document is exempt, within the timeframe specified by the Information Commissioner.
(3) A person who produces a document for inspection in accordance with subsection (2)—
(a) is taken to comply with the notice to produce or attend; and
(b) does not commit an offence against section 61X.
(1) It is not a reasonable excuse for the purposes of section 61X for a person to refuse or fail to comply with a requirement of the Information Commissioner as a result of—
(a) any obligation imposed on that person, by any enactment or rule of law, to maintain secrecy in relation to the production of the document, information or the answer to a question; or
(b) any restriction imposed on that person, by any enactment or rule of law, that prohibits the disclosure of the document, information or the answer to a question.
(2) Nothing in this section affects the operation of—
(a) Part 7 of the Protected Disclosure Act 2012 ; or
(b) Division 3 of Part 2 of the
Independent Broad-based
Anti-corruption Commission Act 2011 .
Within 3 days after the issue of a notice to produce or attend, the Information Commissioner must give a written report to the Victorian Inspectorate specifying—
(a) the name of the person to whom the notice relates; and
(b) the reasons why the notice was issued.
(1) The Information Commissioner may require a person attending an examination, in accordance with a notice to attend, to give evidence or answer questions on oath or affirmation.
(2) The Information Commissioner, or a person authorised to do so by the Commissioner, may administer an oath or affirmation to a person for the purposes of subsection (1).
(3) A person must not, without reasonable excuse, refuse or fail to take an oath or make an affirmation when required to do so by the Information Commissioner under subsection (1).
Penalty: 60 penalty units.
(4) A person does not commit an offence against subsection (3) unless, before the person is required to take the oath or make the affirmation, the Information Commissioner informs the person that refusal or failure to do so without reasonable excuse is an offence.
A person may seek legal advice, and be represented by, a legal practitioner in relation to—
(a) a notice to produce or attend that is directed to the person; and
(b) the person's rights, liabilities, obligations and privileges in relation to the notice to produce or attend.
(1) A legal practitioner representing the person who is served with a notice to produce or attend has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.
(2) A person who is served with a notice to produce or attend has the same protection and immunity as a witness has in a proceeding in the Supreme Court.".