Hansard debates

Mr PAKULA (Attorney-General) — I move:

That this bill be now read a second time.

Speech as follows incorporated into Hansard under sessional orders:

The bill delivers on the government's election commitments to make government more open and accountable by making it quicker and easier for Victorians to access information.

The government committed to converting the role of the FOI commissioner into a new office with a broader mandate. The government committed to giving the commissioner new powers, including the setting of professional FOI standards, the power to review decisions of ministers and principal officers, and the power to review decisions made on the ground of the cabinet exemption. The government also committed to reducing time frames for FOI requests and appeals.

Recognising the need to fix Victoria's fragmented information management policy, the bill implements all of the government's election commitments, and makes some complementary improvements to the Freedom of Information Act 1982 (FOI act) that will result in genuine reform.

The bill will amend the FOI act to establish the Office of the Victorian Information Commissioner (OVIC). A newly created OVIC will look after freedom of information, privacy and data protection issues. This will match similar bodies in New South Wales, Queensland and the commonwealth. The creation of this new office will provide more proactive and integrated FOI, privacy and data protection leadership in Victoria, particularly by driving the cultural shifts necessary to improve the way government manages and provides access to information.

These reforms are only the first stage in improving openness and access to information. Victoria needs modern information access legislation that supports the public's right to information while ensuring public records and certain types of information remain protected. As such, the government is commissioning an independent root and branch review of Victoria's FOI and public records legislation. The review will consult broadly across the public, private and non-government sectors to develop a revised framework for FOI and public records legislation, and the review is expected to be completed in March 2017.

I now turn to the bill.

Office of the Victorian Information Commissioner

The bill builds on the government's commitment to transform the role of the FOI commissioner by establishing the OVIC. The OVIC will assume the functions of the FOI commissioner and the commissioner for privacy and data protection.

As a result, the OVIC will become Victoria's primary regulator of, and source of independent advice to the government about, the collection, use and sharing of information held by agencies. This will ensure that one body manages the overlap between the existing FOI and privacy regimes and has broad oversight of the Victorian government's information access and management practices.

Governance arrangements

The head of the OVIC will be the information commissioner, who will have the same powers and functions as the current FOI commissioner and commissioner for privacy and data protection. The information commissioner will set the OVIC's strategic direction, as well as manage and lead the Office.

There will be two deputy commissioners: a public access deputy commissioner and a privacy and data protection deputy commissioner. The deputy commissioners will share many of the information commissioner's powers in relation to their areas of regulatory responsibility under the FOI act and Privacy and Data Protection Act 2014 respectively. Additionally, the information commissioner will be able to delegate certain powers and authorise the deputy commissioners on a case-by-case basis to exercise some functions that are reserved for the information commissioner.

The bill repeals the role of assistant commissioner from the FOI act. The role of the assistant commissioner was introduced in 2014 to assist with the FOI commissioner's workload. However, the creation of the deputy commissioner roles removes the need for assistant commissioners by separating strategy and management functions (which will sit with the information commissioner) from the day-to-day regulatory decision-making functions (which will be largely provided to the two deputy commissioners). This will allow the public access deputy commissioner more time to focus on their regulatory caseload.

This governance structure aims to make the OVIC an effective, strategic and proactive regulatory body, as well as a source of independent advice to government by clearly defining roles and empowering the deputy commissioners to perform decision-making and regulatory functions. The information commissioner will be well-placed to manage the office, increase the reach and effectiveness of education activities and address any systemic issues across government's information management framework.

The OVIC will report to the Accountability and Oversight Committee, which will now have a new oversight role in relation to privacy and data protection functions, in addition to its role in overseeing the FOI system.

To emphasise the independence of the OVIC, the OVIC will not be subject to the direction or control of the minister in respect of the performance of its duties and functions and the exercise of its powers.

New powers of the OVIC

Reviews

One of the core functions of the FOI commissioner is to review decisions made by agencies under the FOI act. However, FOI decisions are also made by ministers and principal officers. Currently these decisions can only be reviewed by the Victorian Civil and Administrative Tribunal (VCAT). The bill gives the OVIC the power to review FOI decisions made by ministers and principal officers, giving Victorians a more accessible review pathway for those decisions.

Under the FOI act, agencies can refuse to grant access to a document on the basis that it contains cabinet material. These decisions are currently not reviewable by the FOI commissioner, and are only reviewable by the VCAT. The bill provides that these decisions will now be reviewable by the OVIC, ensuring even further transparency of FOI processes. As a result, the bill repeals 'conclusive certificates' in relation to cabinet documents under the FOI act, which were issued for the purpose of establishing that the cabinet exemption applied and could therefore not be reviewed by the FOI commissioner.

Complaints

The current FOI commissioner has jurisdiction to investigate complaints against agencies for any action taken or not taken under the FOI act. The bill will expand the OVIC's complaints jurisdiction to cover principal officers in the same way as it applies to agencies. The OVIC's power to investigate complaints against ministers — which is currently limited to specific types of complaints — will be extended to allow the OVIC to investigate complaints against ministerial decisions that a document either does not exist or cannot be located.

Own-motion investigations

Prior to the establishment of the office of the FOI commissioner, the Ombudsman had an own-motion investigation power in relation to the FOI act. The power was removed from the Ombudsman when the FOI commissioner was established. The bill gives the OVIC the power to conduct own-motion investigations in relation to specific administrative actions of the public sector relating to FOI, as well as serious or systemic issues in the FOI system.

The outcomes of any OVIC investigations will be tabled by the information commissioner in Parliament, subject to safeguards similar to those that apply to the Ombudsman's reports.

Investigative powers

To assist the OVIC with conducting investigations under its expanded complaints investigation and review functions, as well as its new own-motion investigation function, the OVIC will have new powers to compel information and documents, examine witnesses and require further and better searches. To ensure the OVIC can effectively exercise these investigation powers, sanctions will apply for non-compliance with notices issued by the OVIC, unless the person has a reasonable excuse for not complying.

The bill includes safeguards against the misuse of these new powers by making their use subject to the oversight of the Victorian Inspectorate (similar to the Victorian Inspectorate's oversight of coercive powers used by the Ombudsman and the Auditor-General). The OVIC will be required to report to the Victorian Inspectorate on the use of these powers.

Setting professional standards

Professional standards are intended to provide clear and simple guidance as to how the FOI act should be administered. Currently, professional standards are set by the minister, and apply to principal officers and agencies. They do not apply to ministers. Further, under the FOI act, professional standards are not binding on agencies unless they have been prescribed by regulation. There are currently no standards prescribed by regulation.

The bill empowers the information commissioner to set professional standards. The standards set by the information commissioner will be binding on agencies and principal officers, without them needing to be prescribed by regulation. This will allow complaints to be made to the OVIC if standards are not complied with. Further, the Premier will be able to adopt the professional standards (with or without modifications) and apply them to ministers.

To ensure that the professional standards set by the information commissioner are fit for purpose, the information commissioner will be required to consult with affected stakeholders, including agencies and principal officers, before the standards become binding.

Increased education function

Education is a critical part of an information regulator's mandate. Effective education has the capacity to improve how government manages information and handles FOI requests, and Victorians' understanding of their information rights. Accordingly, the bill gives the information commissioner a broader education mandate, which will extend to the education of the public more generally, not just agencies (per the current education function). This will empower citizens in their interactions with government about information and the FOI system, thus making for a more accessible and accountable system.

Other operational and technical improvements

To improve the efficiency of the FOI system, the bill reduces the time to respond to an FOI request from 45 days to 30 days. However, recognising that there may be instances where it is in the best interests of the FOI applicant for the time frame to be extended to enable a positive decision rather than triggering a deemed refusal (which occurs if a decision is not made in time), the bill provides for an extension to the statutory response time in limited circumstances. An extension can be granted with the agreement of the FOI applicant and can be for up to 30 calendar days, with the ability to agree to additional extensions. The bill also provides for an extension of up to 15 calendar days where mandatory consultation is required under the FOI act. Mandatory consultation will be required where documents contain information of a personal, commercial or confidential nature or relate to law enforcement or state/commonwealth relations. These extension provisions bring Victoria into line with the FOI extension regimes in other Australian jurisdictions.

The bill also reduces the time for an agency to lodge an application with VCAT seeking a review of OVIC decisions from 60 days to 14 days.

The Independent Broad-based Anti-corruption Commission (IBAC) Committee's report, 'Strengthening Victoria's key anti-corruption agencies?', suggested that section 194 of the IBAC act, which provides for the exemption of IBAC documents from FOI, required clarification. The need for this amendment arises from an unintended outcome, where release of certain Victoria Police documents may be inadvertently prevented by the FOI exemption in the IBAC act. For example, where Victoria Police refers a complaint to IBAC, and IBAC decides not to investigate and refers the complaint back to Victoria Police, the documents relating to the subsequent Victoria Police investigation may be exempt from the FOI act (despite IBAC not investigating the complaint). If a complaint is made directly to IBAC, and IBAC decides not to investigate and refers it on to Victoria Police, the subsequent Victoria Police investigation documents may similarly be exempt.

To address this issue, the bill amends the FOI and IBAC acts to:

clarify that the IBAC exemption (section 194 of the IBAC act) applies to documents relating to IBAC complaints, information received under section 56 of the IBAC act, and mandatory notifications where such documents are in the possession of IBAC itself, rather than in the possession of 'any person or body';

clarify that documents held by 'any person or body' that disclose information relating to a preliminary inquiry or investigation conducted by IBAC, or a recommendation made by the IBAC in a report, or draft report, will continue to be automatically exempt; and

insert a new exemption into section 31A of the FOI act, which includes documents relating to IBAC's investigations. This ensures documents which, if disclosed, would adversely affect the integrity of IBAC's investigations remain exempt.

The purpose of these clarifications is to ensure that any documents that could prejudice an IBAC investigation (or attract other exemptions under the FOI act) will remain exempt. FOI decisions that are refused access based on the new exemption will be reviewable by the FOI regulator and VCAT.

Other amendments

The bill will make a range of additional amendments to the Privacy and Data Protection Act 2014, the Victorian Inspectorate Act 2011, the Independent Broad-based Anti-corruption Commission Act 2011 and the Parliamentary Committees Act 2003.

Conclusion

This bill makes significant improvements to the current FOI system. The bill establishes a single entity with responsibility for overseeing Victoria's FOI and public sector privacy and data protection laws. The OVIC will provide a source of independent strategic advice to government on these closely-related fields and will be well-placed to promote best practice in information access. The OVIC's establishment is a big step towards creating a fully integrated system for the regulation of information held by government.

In expanding the investigative powers of the OVIC, reducing response time frames and allowing more decisions than ever before to be reviewed, the bill represents a significant increase in the openness and accountability of government.

I commend this bill to the house.

Debate adjourned on motion of Mr PESUTTO (Hawthorn).

Debate adjourned until Thursday, 7 July.