Victorian Numbered Acts Victorian Numbered ActsAfter Division 9 of Part 3 of the Privacy and Data Protection Act 2014 insert —
(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 subsection (1) 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 83C.
(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) evidence 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 purpose for which the notice was issued; 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.
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 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 the notice relates to—
(i) a conciliation conducted by the Information Commissioner; or
(ii) the issue of a compliance notice by the Information Commissioner; or
(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.
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 83H, 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.
(1) Without limiting what is a reasonable excuse for the purposes of section 83H, it is a reasonable excuse for a person to refuse or fail to comply with a requirement of the notice if—
(a) the information or document—
(i) is an exempt document under section 28 of the Freedom of Information Act 1982 ; or
(ii) is information that if included in a document would make that document an exempt document under that section 28; or
(b) the information or document is subject to legal professional privilege or client legal privilege.
(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) of the Freedom of Information Act 1982 ;
(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) of the Freedom of Information Act 1982 .
(1) It is not a reasonable excuse for a person to refuse or fail to comply with the notice 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 or 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 .".