Part 3 Functions of Commissioner
Division 1 General functions of Commissioner
The Commissioner has such functions as may be conferred or imposed on the Commissioner by or under this or any other Act.
15 General procedures of Commissioner
The Commissioner:(a) is to act in an informal manner (including avoiding conducting formal hearings) as far as possible, and(b) is to act according to the substantial merits of the case without undue regard to technicalities, and(c) may determine the procedures to be followed in exercising the Commissioner’s functions under this Act, including the procedures to be followed at an inquiry or investigation conducted by the Commissioner, and(d) is not bound by the rules of evidence and may inform himself or herself on any matter in any way that the Commissioner considers to be just.
For the purposes of the exercise of any of the Commissioner’s functions, the Commissioner may engage the services of any person for the purpose of getting expert assistance.
Any person may complain to the Commissioner about the conduct (including action or inaction) of an agency in the exercise of functions under an Information Act, including conduct that is alleged by the person to constitute a contravention of an Information Act.Note. A decision of an agency that is reviewable under the GIPA Act cannot be the subject of a complaint to the Commissioner (even if the person is out of time to apply for review of the decision). See section 89 (4) of the GIPA Act.
18 Decision to deal with complaint
(1) The Commissioner may decide to deal with a complaint or to decline to deal with a complaint.(2) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a complaint and may request further information from the complainant.
19 How complaints are dealt with
(1) The Commissioner deals with a complaint by taking appropriate measures to assist in the resolution of the complaint, including (but not limited to) any of the following measures:(a) providing information to the parties to the complaint,(b) undertaking discussions concerning the complaint with the parties to the complaint,(c) facilitating the direct resolution of the complaint by the parties to the complaint (including by conciliation or other informal process).(2) The Commissioner can also deal with a complaint by investigating the complaint under Division 3.
The Commissioner must give notice to the complainant of the Commissioner’s decision on whether to deal with the complaint and (if the Commissioner decides to deal with the complaint) how the complaint is to be dealt with.
21 Investigation of agency systems, policies and practices
(1) The Commissioner may investigate and report on the exercise of any functions of one or more agencies under an Information Act, including the systems, policies and practices of agencies (or of agencies generally) that relate to functions of agencies under an Information Act.(2) The Commissioner is to give a report under this section:(a) to the Minister responsible for any agency to which the report relates, and(b) to the principal officer of an agency that is the subject of the report.
22 Investigation of complaints
(1) If the Commissioner decides to investigate a complaint, the Commissioner must give notice to the complainant of the decision to investigate and must give notice to an agency of the Commissioner’s decision to investigate a complaint about the agency.(2) The Commissioner may discontinue an investigation of a complaint at any time and is to give notice of the discontinuation of an investigation to the complainant and the agency concerned.
23 Procedure for investigations
(1) An investigation under this Act is to be made in the absence of the public.(2) In an investigation under this Act, the Commissioner must give an opportunity to make submissions on the matter the subject of the investigation:(a) if practicable, to the agency whose conduct is the subject of investigation, and(b) in the case of an investigation of a complaint—to the complainant.(3) Where, in an investigation under this Act, the Commissioner considers that there are grounds for adverse comment in respect of any person, the Commissioner, before making any such comment in any report, must, in so far as it is practicable to do so:(a) inform that person of the substance of the grounds of the adverse comment, and(b) give the person an opportunity to make submissions.(4) Before publishing a report on an investigation that makes an adverse comment in respect of an agency, the Commissioner must inform the Minister responsible for the agency that the Commissioner proposes to publish such a report and must, at the request of that Minister, consult the Minister.
24 Report on compliance with Information Act
(1) Where, in an investigation under this Act, the Commissioner finds that any conduct of an agency the subject of the investigation is conduct that constitutes a failure to exercise its functions properly in accordance with any provision of an Information Act, the Commissioner must report the matter:(a) to the Minister responsible for the agency, and(b) to the principal officer of the agency, and(c) where the conduct concerns the conduct of a person employed under the Public Sector Employment and Management Act 2002, to the head of the Department of Premier and Cabinet.(2) The Commissioner may give a copy of the report:(a) where the investigation arises out of a complaint to the Commissioner, to the complainant, and(b) to the agency to whose conduct the report relates.(3) An agency to whose conduct the report relates who is given a copy of the report may, and on request by the Commissioner must, notify the Commissioner of any action taken or proposed in consequence of the report.
Division 4 Powers of Commissioner
25 Agencies to give information etc
(1) For the purposes of or in connection with the exercise of any function of the Commissioner, the Commissioner may require an agency:(a) to give the Commissioner a statement of information, or(b) to produce to the Commissioner any record or other thing, or(c) to give the Commissioner a copy of any record.(2) A requirement under this section must be in writing, must specify or describe the information, record or thing required, and must fix a time and specify a place for compliance.(3) The disclosure of information by an agency in compliance with a requirement imposed by or under this or any other Act does not constitute the waiver of any privilege of the agency against disclosure of the information.
For the purposes of any investigation under this Act, the Commissioner may, at any time:(a) enter and inspect any premises occupied or used by an agency, and(b) inspect any record or thing in or on the premises.
27 Limits on coercive powers because of privilege etc
(1) The Commissioner must not exercise a coercive entry power and must set aside any requirement imposed under a coercive investigative power if it appears to the Commissioner that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist a like requirement or the exercise of a like power, unless:(a) the privilege is a privilege of an agency, or(b) it appears to the Commissioner that the person has waived the privilege.(2) However, the Commissioner may exercise a coercive entry or investigative power despite (and is not required to set aside any requirement imposed under a coercive investigative power merely because of):(a) any rule of law that, in proceedings in a court of law, might justify an objection to compliance with a like requirement or the exercise of a like power on grounds of public interest, or(b) any duty of secrecy or other restriction on disclosure applying to an agency.(3) In this section:coercive entry power means a power to inspect any premises or any record or thing on premises.
coercive investigative power means a power to:
(a) require any person to give any statement of information, or(b) require any person to produce any record or other thing, or(c) require any person to give a copy of any record, or(d) require any person to answer any question.
28 Powers to prevent contravention of Information Act
(1) If a person has engaged, is engaged or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of any provision of an Information Act, the Supreme Court may, on the application of the Commissioner, grant an injunction restraining the person from engaging in that conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.(2) If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do any act or thing that the person is required to do by or under an Information Act, the Supreme Court may, on the application of the Commissioner, grant an injunction requiring the person to do that act or thing.(3) If an application is made to the Court for an injunction under subsection (1), the Court may, if in its opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in the conduct concerned pending the determination of the application.(4) The Court may rescind or vary an injunction granted under this section.(5) The Commissioner has standing to bring proceedings by way of judicial review in connection with the exercise of the functions of an agency under the GIPA Act.(6) The Commissioner does not have the function of bringing proceedings for an offence under an Information Act.
(1) The Commissioner may make or hold inquiries for the purposes of an investigation that the Commissioner conducts under this Act.(2) For the purposes of any inquiry under this section, the Commissioner has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before the Commissioner in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act is to have effect subject to section 27 (Limits on coercive powers because of privilege etc) of this Act.(3) A witness appearing before the Commissioner is to be paid such amount as the Commissioner determines, but not exceeding the amount that would be payable to such a witness if he or she were a Crown witness subpoenaed by the Crown to give evidence.
(1) This Act does not enable the Commissioner:(a) to require any person:(i) to give any statement of information, or(ii) to produce any record or other thing, or(iii) to give a copy of any record, or(iv) to answer any question,if compliance with the requirement would disclose information that is Cabinet information, or(b) to inspect any such record or thing.(2) A certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section.(3) In this section:Cabinet information means information that is Cabinet information under clause 2 of Schedule 1 to the GIPA Act.
Division 5 Disclosure of information
31 Commissioner may furnish information to Ombudsman
(1) The Commissioner may, at any time, furnish to the Ombudsman information obtained by the Commissioner in discharging functions under this or any other Act if the Commissioner is of the opinion that the information relates to conduct of an agency that could be the subject of a complaint under the Ombudsman Act 1974.(2) However, the Commissioner must not disclose information that could not otherwise be disclosed under this Act or could not be obtained by the Ombudsman under the Ombudsman Act 1974 or any other Act.
32 Commissioner may furnish information to ICAC, DPP and PIC
(1) The Commissioner may, at any time, furnish information obtained by the Commissioner in discharging functions under this or any other Act to the Director of Public Prosecutions, the Independent Commission Against Corruption or the Police Integrity Commission.(2) However, the Commissioner must not disclose information that could not otherwise be disclosed under this Act or could not:(a) in the case of the Director of Public Prosecutions—be obtained by the Director under the Director of Public Prosecutions Act 1986 or any other Act, or(b) in the case of the Independent Commission Against Corruption—be obtained by the Commission under the Independent Commission Against Corruption Act 1988 or any other Act, or(c) in the case of the Police Integrity Commission—be obtained by the Commission under the Police Integrity Commission Act 1996 or any other Act.
33 Commissioner may furnish information to agency
(1) The Commissioner may, at any time:(a) furnish to an agency information obtained by the Commissioner in discharging functions under this Act with respect to a complaint against or relating to the agency, and(b) make such comments to the agency with respect to the complaint as the Commissioner thinks fit.(2) The Commissioner may also furnish any or all of the information referred to in subsection (1) to any other agency, and may make such comments (if any) to that agency as the Commissioner considers appropriate, if:(a) the Commissioner is satisfied that the information concerned is relevant to the functions, policies, procedures or practices of that other agency, and(b) the information does not disclose any personal information (within the meaning of either the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002).
34 Ombudsman may furnish information to Commissioner
(1) The Ombudsman may at any time furnish to the Commissioner information obtained by the Ombudsman in discharging functions under the Ombudsman Act 1974 or any other Act if the Ombudsman is of the opinion that the information relates to conduct of an agency that could be the subject of a complaint to the Commissioner under this Act.(2) However, the Ombudsman must not disclose information that could not otherwise be disclosed under the Ombudsman Act 1974 or could not be obtained by the Commissioner under this or any other Act.
35 Restriction on disclosure of information by Commissioner
(1) The Commissioner must not, in the exercise of functions under this Act, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure, as provided by the GIPA Act, unless the disclosure is authorised under this Division.(2) Despite section 91 of the GIPA Act, the Commissioner may disclose information to the Privacy Commissioner in the course of consulting with the Privacy Commissioner under section 94 of the GIPA Act before making a recommendation against a decision of an agency that there is an overriding public interest against disclosure of the information.