Australian Information Commissioner Act, 2010.

Act nº 52 of 2010 as amended.

Amendments up to Act nº 46 of 2011

An Act to establish the Office of the Australian Information Commissioner, and for related purposes

The Parliament of Australia enacts:

Part1.-Preliminary

1.- Short title

This Act may be cited as the Australian Information Commissioner Act 2010.

2.- Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3.- Definitions

In this Act:

agency has the meaning given by the Freedom of Information Act 1982.

Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.

freedom of information functions has the meaning given by section 8.

freedom of information matters has the meaning given by subsection 31(1).

Information Commissioner has the meaning given by section 3A.

information commissioner functions has the meaning given by section 7.

information officer has the meaning given by section 6.

partial access has a meaning affected by subsection 31(3).

Privacy Commissioner means the person appointed under section14 as the Privacy Commissioner.

privacy functions has the meaning given by section 9.

privacy matters has the meaning given by section 32.

3A.- Meaning of Information Commissioner in any Act

In any Act:

Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.

Part 2.- Office of the Australian Information Commissioner

Division 1.-Introduction

4.- Guide to this Part

This Part establishes the Office of the Australian Information Commissioner.

The Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.

The information officers are the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner. The Information Commissioner is the head of the Office (for the purposes of the Public Service Act 1999).

The functions of the Office are as follows:

(a) the freedom of information functions, which are about giving the Australian community access to information held by the Commonwealth Government in accordance with the Freedom of Information Act 1982 (and other Acts);

(b) the privacy functions, which are about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);

(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.

All of the information officers may perform the freedom of information functions and the privacy functions.

Only the Information Commissioner can perform the information commissioner functions.

Division 2.- Establishment

5.- Establishment

(1) The Office of the Australian Information Commissioner is established by this section.

(2) The Office of the Australian Information Commissioner consists of:

(a) the information officers; and

(b) the staff mentioned in Part3.

(3) For the purposes of the Public Service Act 1999:

(a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and

(b) the Information Commissioner is the Head of that Statutory Agency.

6.- Definition of information officers

Each of the following is an information officer:

(a) the Information Commissioner;

(b) the Freedom of Information Commissioner;

(c) the Privacy Commissioner.

Division 3.-Functions and powers of the information officers

7.- Definition of information commissioner functions

The information commissioner functions are as follows:

(a) to report to the Minister on any matter that relates to the Commonwealth Governments policy and practice with respect to:

(i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and

(ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);

(b) any other function conferred by this Act or another Act (or an instrument under this Act or another Act) on the Information Commissioner other than a freedom of information function or a privacy function.

8.- Definition of freedom of information functions

The freedom of information functions are as follows:

(a) promoting awareness and understanding of the Freedom of Information Act 1982 and the objects of that Act (including all the matters set out in sections 3 and 3A of that Act);

(b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under PartII of that Act;

(c) the functions conferred by section 8F of the Freedom of Information Act 1982;

(d) providing information, advice, assistance and training to any person or agency on matters relevant to the operation of the Freedom of Information Act 1982;

(e) issuing guidelines under section 93A of the Freedom of Information Act 1982;

(f) making reports and recommendations to the Minister about:

(i) proposals for legislative change to the Freedom of Information Act 1982; or

(ii) administrative action necessary or desirable in relation to the operation of that Act;

(g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;

(h) reviewing decisions under Part VII of the Freedom of Information Act 1982;

(i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;

(j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in annual reports under section 30;

(k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;

(l) any other function conferred on the Information Commissioner by another Act (or an instrument under another Act) and expressed to be a freedom of information function.

9.- Definition of privacy functions

(1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if the functions:

(a) relate to the privacy of an individual; and

(b) are not freedom of information functions.

(2) The functions mentioned in subsection(1) include, but are not limited to, the provisions in the following table.

10.- Functions and powers of the Information Commissioner

(1) The Information Commissioner has the following functions:

(a) the information commissioner functions;

(b) the freedom of information functions;

(c) the privacy functions.

(2) The Information Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of functions conferred by this section.

11.- Functions and powers of the Freedom of Information Commissioner

(1) The Freedom of Information Commissioner has the freedom of information functions.

(2) The Freedom of Information Commissioner may also perform the privacy functions.

(3) The Freedom of Information Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of functions conferred by this section.

(4) However, the following actions may only be taken with the approval of the Information Commissioner:

(a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);

(b) the making of a report or recommendation under paragraph 8 (f) to the Minister about:

(i) proposals for legislative change to the Freedom of Information Act 1982; or

(ii) administrative action necessary or desirable in relation to the operation of that Act.

(5) If the Freedom of Information Commissioner performs a function, or exercises a power, expressed by an Act (or an instrument under an Act) to be conferred on the Information Commissioner:

(a) the Freedom of Information Commissioner must perform the function or exercise the power upon his or her own belief or state of mind (to the extent that the performance or exercise is dependent on the belief or state of mind of the Information Commissioner); and

(b) the function or power is taken to have been performed or exercised by the Information Commissioner; and

(c) neither the Information Commissioner, nor the Privacy Commissioner, is prevented from performing the same function, or exercising the same power, on another occasion (in relation to a different matter).

12.- Functions and powers of the Privacy Commissioner

(1) The Privacy Commissioner has the privacy functions.

(2) The Privacy Commissioner may also perform the freedom of information functions (whether or not the Privacy Commissioner holds the qualifications mentioned in subsection 14(3)).

(3) The Privacy Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of functions conferred by this section.

(4) However, the following actions may only be undertaken with the approval of the Information Commissioner:

(a) the issue, variation or revocation of the Code of Conduct under section 18 A of the Privacy Act 1988;

(b) approvals, variations or revocations of a privacy code under paragraph 27 (1) (aa) of the Privacy Act 1988;

(c) the preparation, and publication, or variation or revocation, of guidelines under paragraph 27(1)(e) or (ea), or paragraph 28 A (1) (e), of the Privacy Act 1988;

(d) the issue, variation or revocation of guidelines for the purposes of paragraph 27(1) (p) or (pa), or paragraph 28 (1) (a), of the Privacy Act 1988;

(e) the making of a report or recommendation to the Minister in relation to any matter that concerns the need for or the desirability of legislative or administrative action in the interests of the privacy of individuals under paragraph 27(1)(r) of the Privacy Act 1988;

(f) the making, variation or revocation of a determination for the purposes of paragraph 28 A (1) (d) of the Privacy Act 1988;

(g) advising the Minister whether an exclusion from the application of Division 3 of Part VII C of the Crimes Act 1914 should be granted and whether there should be any restrictions on the circumstances in which an exclusion would apply under paragraph 85 ZZ (1) (b) of that Act.

(5) If the Privacy Commissioner performs a function, or exercises a power, expressed by an Act (or an instrument under an Act) to be conferred on the Information Commissioner:

(a) the Privacy Commissioner must perform the function or exercise the power upon his or her own belief or state of mind (to the extent that the performance or exercise is dependent on the belief or state of mind of the Information Commissioner); and

(b) the function or power is taken to have been performed or exercised by the Information Commissioner; and

(c) neither the Information Commissioner, nor the Freedom of Information Commissioner, is prevented from performing the same function, or exercising the same power, on another occasion (in relation to a different matter).

Part 3.-Appointments and staffing for the Office of the Australian Information Commissioner

Division 1.-Introduction

13.- Guide to this Part

This Division provides for:

(a) the appointment of the information officers; and

(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.

The Information Commissioner may engage consultants.

The Information Commissioner may delegate all of his or her functions or powers, other than the information commissioner functions, the preparation of reports, the making of certain instruments (such as guidelines and determinations) and certain formal procedural steps.

Division 2.-The information officers

14.- Appointment

Appointment of the Australian Information Commissioner

(1) The Australian Information Commissioner is to be appointed by the GovernorGeneral by written instrument.

Appointment of the Freedom of Information Commissioner

(2) The Freedom of Information Commissioner is to be appointed by the GovernorGeneral by written instrument.

(3) A person may only be appointed as the Freedom of Information Commissioner if he or she has obtained a degree from a university, or an educational qualification of a similar standing, after studies in the field of law.

Appointment of the Privacy Commissioner

(4) The Privacy Commissioner is to be appointed by the GovernorGeneral by written instrument.

15.- General terms and conditions of appointment

(1) An information officer holds office for the period specified in the information officers instrument of appointment. The period must not exceed 5 years.

(2) An information officer holds office on a fulltime basis.

(3) An information officer holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the GovernorGeneral.

16.- Restriction on outside employment

An information officer must not engage in paid employment outside the duties of his or her office without the Ministers approval.

17.- Remuneration

(1) An information officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the information officer is to be paid the remuneration that is prescribed by the regulations.

(2) An information officer is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

18.- Leave of absence

(1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant an information officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

19.- Resignation

(1) An information officer may resign his or her appointment by giving the GovernorGeneral a written resignation.

(2) The resignation takes effect on the day it is received by the GovernorGeneral or, if a later day is specified in the resignation, on that later day.

20.- Termination of appointment

(1) The GovernorGeneral may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.

(2) The GovernorGeneral must terminate the appointment of an information officer if any of the following apply:

(a) the information officer:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;

(b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

(c) the information officer engages, except with the Ministers approval, in paid employment outside the duties of his or her office;

(d) the information officer fails, without reasonable excuse, to comply with section 22 (disclosure of interests).

21.- Acting appointments

(1) The Minister may, by written instrument, appoint a person to act as an information officer:

(a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the information officer:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

(2) A person appointed to act during a vacancy mentioned in paragraph (1) (a) must not act for more than 12 months.

(3) A person must not be appointed to act as the Freedom of Information Commissioner unless he or she is qualified, as mentioned in subsection 14 (3), to be appointed as the Freedom of Information Commissioner.

(4) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because of any of the following:

(a) the occasion for the appointment had not arisen;

(b) there was a defect or irregularity in connection with the appointment;

(c) the appointment had ceased to have effect;

(d) the occasion to act had not arisen or had ceased.

22.- Disclosure of interests

An information officer must give written notice to the Minister of all interests, pecuniary or otherwise, that the information officer has or acquires and that conflict or could conflict with the proper performance of the information officers functions.

Division 3.-Staff, consultants and delegations

23.- Staff

The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.

24.- Consultants

(1) The Information Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the functions and the exercise of the powers of the Information Commissioner (see section10).

(2) However, a consultant engaged under subsection(1) may only perform a function, or exercise a power, if the function or power can be delegated to a member of staff of the Office of the Australian Information Commissioner under section 25.

25.- Delegation by the Information Commissioner

The Information Commissioner may delegate, in writing, all or any of his or her functions or powers to a member of staff of the Office of the Australian Information Commissioner, other than the following:

(a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);

(b) preparing the report mentioned in section30;

(c) issuing guidelines as mentioned in paragraph 8(e);

(d) the function conferred by section 55H of the Freedom of Information Act 1982 (referring questions of law in a review to the Federal Court of Australia);

(e) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);

(f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);

(g) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);

(h) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);

(i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);

(j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);

(k) issuing guidelines under section 17 of the Privacy Act 1988;

(l) making determinations for the purposes of section 52 of the Privacy Act 1988.

Part4Information Advisory Committee

26.- Guide to this Part

This Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.

27.- Establishment and functions

(1) There is to be an Information Advisory Committee, with the function of assisting and advising the Information Commissioner in matters relating to the performance of the information commissioner functions.

(2) The Committee consists of the following persons:

(a) the Information Commissioner, as Chair;

(b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;

(c) such other persons as the Minister thinks fit and who, in the Ministers opinion, hold suitable qualifications or experience.

(3) A Committee member appointed by the Minister for the purposes of paragraph (2) (c) is entitled to be paid travel allowance in accordance with the regulations.

(4) However, a person covered by subsection (3) is not entitled to be paid any remuneration or allowances in relation to the holding of the position of Committee member other than any travel allowance that is prescribed for the purposes of subsection (3).

27A.- Disclosure of interests

Disclosure to Minister

(1) A member of the Information Advisory Committee must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the members functions.

Disclosure to Information Advisory Committee

(2) A member of the Information Advisory Committee must disclose to a meeting of the Committee the nature of an interest, pecuniary or otherwise, that he or she has in a matter being considered, or about to be considered, by the Committee.

(3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee members knowledge.

(4) The disclosure must be recorded in the minutes of the meeting of the Committee.

(5) Unless the Committee otherwise determines, the Committee member:

(a) must not be present during any deliberation by the Committee on the matter; and

(b) must not take part in any decision of the Committee with respect to the matter.

(6) For the purposes of making a determination under subsection (5), the Committee member:

(a) must not be present during any deliberation of the Committee for the purpose of making the determination; and

(b) must not take part in making the determination.

(7) A determination under subsection(5) must be recorded in the minutes of the meeting of the Committee.

Information Commissioner

(8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.

Part 5.-Miscellaneous

28.- Guide to this Part

This Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:

(a) an offence for unauthorised dealings with information;

(b) the requirements for annual reports;

(c) immunity from legal suit;

(d) the making of regulations.

29.- Unauthorised dealing with information

(1) A person commits an offence if:

(a) the person makes a record of, discloses or otherwise uses information; and

(b) the information was acquired by the person in the course of performing functions or exercising powers conferred for the purposes of an information commissioner function, a freedom of information function or a privacy function.

Penalty: Imprisonment for 2 years.

(2) This section does not apply if:

(a) the person records, discloses or otherwise uses the information in the course of performing the same functions or exercising the same powers as those in the course of which the information was acquired; or

(b) the person acquires the information for any other lawful purpose; or

(c) the person to whom the information relates consents to the recording, disclosure or use of the information.

(3) A person to whom this section applies must not be required to do either of the following unless that disclosure or production is necessary for the purposes of this Act:

(a) disclose to a court information that the person acquired in the course of performing functions or exercising powers under this Act for the purposes of another Act (or an instrument under another Act) that confers an information commissioner function, a freedom of information function or a privacy function;

(b) produce all or part of a document that contains information of that kind to a court.

(4) For the purposes of subsection(3), court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

30.- Annual report

(1) The Information Commissioner must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the operations of the Office of the Australian Information Commissioner during that year.

(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is received.

What must be included in the report

(3) The report must include the following:

(a) the freedom of information matters );

(b) the privacy matters.

31.- Definition of the freedom of information matters

(1) The freedom of information matters are as follows:

(a) information about any guidelines mentioned in paragraph 8 (e) issued during the year and the matters to which those guidelines relate;

(b) the number of requests under the Freedom of Information Act 1982 to which subsection(2) applies;

(c) the number of applications under section48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;

(d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;

(e) the number of applications made under PartVI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;

(f) the number of applications made under PartVII of the Freedom of Information Act 1982 during the year to the Information Commissioner for the review of decisions, and particulars of the results of those reviews;

(g) the number of applications made under PartVIIA of the Freedom of Information Act 1982 during the year to the Administrative Appeals Tribunal for the review of decisions, and particulars of the results of those reviews;

(h) the number of complaints made under PartVIIB of the Freedom of Information Act 1982 during the year to the Information Commissioner, and particulars of the results of investigations undertaken as a result of those complaints;

(i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agencys obligations under the Freedom of Information Act 1982.

(2) This subsection applies to a request if, during the year:

(a) the request was received under section 15 of the Freedom of Information Act 1982; or

(b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or

(c) access to the document (or all of the documents) to which the request relates was refused; or

(d) partial access to the document (or documents) to which the request relates was granted.

(3) Without limiting subsection(2), and for the purposes of that subsection, partial access is granted in respect of a request if either or both of the following conditions are satisfied in relation to the request:

(a) access was granted to an edited copy (within the meaning of section 22 of the Freedom of Information Act 1982) of the document (or any of the documents) requested;

(b) the request related to 2 or more documents and access was refused to one or more of the documents.

32.- Definition of the privacy matters

(1) The privacy matters are as follows:

(a) a statement of the performance of the privacy functions conferred by paragraphs 28 (1) (a) and (f) of the Privacy Act 1988;

(b) a statement about the operation of approved privacy codes under the Privacy Act 1988 that contain procedures, covered by subsection(2), including the following:

(i) action taken by adjudicators to monitor compliance with the codes;

(ii) details about the number of complaints made under codes, their nature and outcome.

(2) This subsection covers procedures for making and dealing with complaints in relation to acts or practices that may be an interference with the privacy of an individual.

33.- Review of operation of Act

(1) The Minister must cause a review of the operation of this Act to be undertaken.

(2) The review must:

(a) start 2 years after the commencement of this section; and

(b) be completed within 6 months.

(3) The Minister must cause a written report about the review to be prepared.

(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

34.- Privileges and immunities of the Crown

The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.

35.- Information officer etc. not to be sued

(1) This section applies to a person if:

(a) the person is an information officer; or

(b) the person is acting under the direction or authority of an information officer.

(2) The person is not liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of any power or authority conferred for the purposes of an information commissioner function, a freedom of information function or a privacy function.

36.- Regulations

The GovernorGeneral may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.