Information Commissioner Act 2024
Information Commissioner Act 2024
Western Australia
Information Commissioner Act 2024
Contents
Part 1 — Preliminary
1.Short title2
2.Commencement2
3.Terms used3
4.Act binds Crown4
Part 2 — Appointment of Information Commissioner and Deputy Commissioners
Division 1 — Information Commissioner
5.Appointment of Information Commissioner5
6.Remuneration and terms and conditions of Information Commissioner5
7.Appointment of person to act as Information Commissioner6
8.Oath or affirmation of office of Information Commissioner6
Division 2 — Information Access Deputy Commissioner
9.Appointment of Information Access Deputy Commissioner6
10.Remuneration and terms and conditions of Information Access Deputy Commissioner7
11.Appointment of person to act as Information Access Deputy Commissioner8
12.Oath or affirmation of office of Information Access Deputy Commissioner8
Division 3 — Privacy Deputy Commissioner
13.Appointment of Privacy Deputy Commissioner9
14.Remuneration and terms and conditions of Privacy Deputy Commissioner9
15.Appointment of person to act as Privacy Deputy Commissioner10
16.Oath or affirmation of office of Privacy Deputy Commissioner10
Division 4 — General provisions about appointment of Information Commissioner and Deputy Commissioners
17.Terms used11
18.Persons eligible for appointment11
19.When office becomes vacant11
20.Resignation12
21.Suspension or removal from office12
22.Outside employment13
23.Public service officer appointed as Commissioner13
24.Provisions about Acting Commissioners14
Part 3 — Functions of Information Commissioner and Deputy Commissioners
25.Functions of Information Commissioner15
26.Functions of Information Access Deputy Commissioner15
27.Functions of Privacy Deputy Commissioner15
28.Delegation16
Part 4 — Staff and related provisions
29.Staff18
30.Use of government staff and facilities18
31.Engagement of service providers18
Part 5 — Miscellaneous
32.Annual report to Parliament20
33.Secrecy and authorised disclosure and use of information21
34.Protection from personal liability22
35.Regulations22
Part 6 — Transitional provisions
36.Terms used23
37.FOI Act Information Commissioner to continue as Information Access Deputy Commissioner23
38.Acting FOI Act Information Commissioner to continue as Acting Information Access Deputy Commissioner24
39.FOI Act staff members to be appointed as public service officers25
40.Arrangements for use of staff continued26
41.Things done or started under Freedom of Information Act 1992 before transition day26
42.Legal proceedings27
43.Information and records27
44.Application of Financial Management Act 2006 Part 5 Division 327
45.Transitional regulations28
Part 7 — Other Acts amended
Division 1 — Constitution Acts Amendment Act 1899 amended
46.Act amended30
47.Schedule V amended30
Division 2 — Criminal Law (Mental Impairment) Act 2023 amended
48.Act amended30
49.Section 410 amended30
Division 3 — Financial Management Act 2006 amended
50.Act amended30
51.Section 5 amended31
52.Schedule 2 heading replaced31
Schedule 2 — Modifications to the Act as to certain administrations and the Office of the Information Commissioner
53.Schedule 2 amended31
Division 4 — Freedom of Information Act 1992 amended
Subdivision 1 — Main amendments
54.Act amended32
55.Part 4 Divisions 1 and 2 deleted32
56.Section 66 amended33
57.Section 75 amended33
58.Part 4 Division 4 heading deleted34
59.Sections 79 and 80 replaced34
79.Commissioner may give notice of officer’s conduct34
60.Section 81 amended35
61.Section 82 deleted35
62.Section 83 amended35
63.Part 5A inserted36
Part 5A — Administration
97A.Functions of Information Commissioner and Information Access Deputy Commissioner under this Act36
97B.Performance of freedom of information functions37
97C.Certain functions cannot be delegated38
64.Section 111 amended39
65.Glossary clause 1 amended39
66.Various references to “Commissioner” amended40
Subdivision 2 — Amendment linked to commencement of Criminal Law (Mental Impairment) Act 2023
67.Act amended42
68.Section 79 amended42
Division 5 — Parliamentary Commissioner Act 1971 amended
69.Act amended42
70.Schedule 1 amended42
Division 6 — State Records Act 2000 amended
71.Act amended42
72.Section 58 amended43
Defined terms
Information Commissioner Act 2024
An Act —
·to establish and make provision for the offices of Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner; and
·to make related and consequential amendments to the Freedom of Information Act 1992 and other Acts; and
·for related purposes.
[Assented to 6 December 2024]
The Parliament of Western Australia enacts as follows:
This is the Information Commissioner Act 2024.
(1)This Act comes into operation as follows —
(a)Part 1 — on the day on which this Act receives the Royal Assent (assent day);
(b)Part 5 (but only section 35) and Part 6 — on the day after assent day;
(c)Part 7 Division 4 Subdivision 2 —
(i)if the Criminal Law (Mental Impairment) Act 2023 section 325 comes into operation on or before the day on which section 59 of this Act comes into operation under paragraph (d) — immediately after section 59 of this Act comes into operation; or
(ii)otherwise — when the Criminal Law (Mental Impairment) Act 2023 section 325 comes into operation;
(d)the rest of the Act — on the day on which the Privacy and Responsible Information Sharing Act 2024 Part 2 Division 12 comes into operation.
(2)Despite subsection (1)(d), if the Criminal Law (Mental Impairment) Act 2023 section 410(2) comes into operation before the day on which Part 7 Division 2 of this Act comes into operation, Part 7 Division 2 of this Act —
(a)does not come into operation; and
(b)is deleted.
In this Act —
eligible person means a person who meets the eligibility requirements under section 18;
freedom of information functions has the meaning given in the Freedom of Information Act 1992 section 97B(1);
Information Access Deputy Commissioner means the person appointed as Information Access Deputy Commissioner under section 9(2);
information Act means —
(a)this Act; or
(b)the Freedom of Information Act 1992; or
(c)the Privacy and Responsible Information Sharing Act 2024;
Information Commissioner means the person appointed as Information Commissioner under section 5(2);
information official means a person who is or has been —
(a)the Information Commissioner; or
(b)the Information Access Deputy Commissioner; or
(c)the Privacy Deputy Commissioner; or
(d)a person appointed under section 7, 11 or 15 to act in the office of Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner; or
(e)a member of staff; or
(f)a person engaged to provide services under section 31;
member of staff means —
(a)a public service officer appointed or made available under section 29; or
(b)a person in relation to whom an arrangement under section 30(1) is in effect;
Privacy Deputy Commissioner means the person appointed as Privacy Deputy Commissioner under section 13(2);
privacy functions has the meaning given in the Privacy and Responsible Information Sharing Act 2024 section 142(1).
This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
Part 2 — Appointment of Information Commissioner and Deputy Commissioners
Division 1 — Information Commissioner
5.Appointment of Information Commissioner
(1)An office called the Information Commissioner is established.
(2)The Information Commissioner is to be an eligible person appointed by the Governor.
(3)The office of Information Commissioner is not an office in the Public Service.
(4)Subject to Division 4, the Information Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment.
(5)A person who has been appointed as Information Commissioner is eligible for reappointment once.
6.Remuneration and terms and conditions of Information Commissioner
(1)Subject to the Salaries and Allowances Act 1975, the Information Commissioner is entitled to be paid the remuneration determined by the Governor.
(2)The Information Commissioner’s rate of remuneration must not be reduced during a term of office of the Information Commissioner without the Information Commissioner’s consent.
(3)The Governor may determine —
(a)the leave of absence to which the Information Commissioner is entitled; and
(b)other terms and conditions of service that apply to the Information Commissioner.
(4)Remuneration paid to the Information Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.
7.Appointment of person to act as Information Commissioner
The Governor may appoint an eligible person to act in the office of Information Commissioner during a period —
(a)when the Information Commissioner is —
(i)on leave of absence; or
(ii)unable to perform the functions of the Information Commissioner;
or
(b)when the Information Commissioner is suspended; or
(c)when the office of Information Commissioner is vacant.
8.Oath or affirmation of office of Information Commissioner
(1)Before performing the functions of the Information Commissioner for the first time, the Information Commissioner or a person appointed to act in the office of Information Commissioner must take an oath, or make an affirmation, that they will faithfully and impartially perform those functions, and that they will not, except in accordance with an information Act, divulge any information received in the performance of those functions.
(2)The oath or affirmation must be administered by the Governor.
Division 2 — Information Access Deputy Commissioner
9.Appointment of Information Access Deputy Commissioner
(1)An office called the Information Access Deputy Commissioner is established.
(2)The Information Access Deputy Commissioner is to be an eligible person appointed by the Governor.
(3)The Information Access Deputy Commissioner is a deputy of the Information Commissioner.
(4)The office of Information Access Deputy Commissioner is not an office in the Public Service.
(5)Subject to Division 4, the Information Access Deputy Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment.
(6)A person who has been appointed as Information Access Deputy Commissioner is eligible for reappointment once.
10.Remuneration and terms and conditions of Information Access Deputy Commissioner
(1)Subject to the Salaries and Allowances Act 1975, the Information Access Deputy Commissioner is entitled to be paid the remuneration determined by the Governor.
(2)The Information Access Deputy Commissioner’s rate of remuneration must not be reduced during a term of office of the Information Access Deputy Commissioner without the Information Access Deputy Commissioner’s consent.
(3)The Governor may determine —
(a)the leave of absence to which the Information Access Deputy Commissioner is entitled; and
(b)other terms and conditions of service that apply to the Information Access Deputy Commissioner.
(4)Remuneration paid to the Information Access Deputy Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.
11.Appointment of person to act as Information Access Deputy Commissioner
The Governor may appoint an eligible person to act in the office of Information Access Deputy Commissioner during a period —
(a)when the Information Access Deputy Commissioner is —
(i)on leave of absence; or
(ii)unable to perform the functions of the Information Access Deputy Commissioner;
or
(b)when the Information Access Deputy Commissioner is suspended; or
(c)when the office of Information Access Deputy Commissioner is vacant.
12.Oath or affirmation of office of Information Access Deputy Commissioner
(1)Before performing the functions of the Information Access Deputy Commissioner for the first time, the Information Access Deputy Commissioner or a person appointed to act in the office of Information Access Deputy Commissioner must take an oath, or make an affirmation, that they will faithfully and impartially perform those functions, and that they will not, except in accordance with an information Act, divulge any information received in the performance of those functions.
(2)The oath or affirmation must be administered by the Governor.
Division 3 — Privacy Deputy Commissioner
13.Appointment of Privacy Deputy Commissioner
(1)An office called the Privacy Deputy Commissioner is established.
(2)The Privacy Deputy Commissioner is to be an eligible person appointed by the Governor.
(3)The Privacy Deputy Commissioner is a deputy of the Information Commissioner.
(4)The office of Privacy Deputy Commissioner is not an office in the Public Service.
(5)Subject to Division 4, the Privacy Deputy Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment.
(6)A person who has been appointed as Privacy Deputy Commissioner is eligible for reappointment once.
14.Remuneration and terms and conditions of Privacy Deputy Commissioner
(1)Subject to the Salaries and Allowances Act 1975, the Privacy Deputy Commissioner is entitled to be paid the remuneration determined by the Governor.
(2)The Privacy Deputy Commissioner’s rate of remuneration must not be reduced during a term of office of the Privacy Deputy Commissioner without the Privacy Deputy Commissioner’s consent.
(3)The Governor may determine —
(a)the leave of absence to which the Privacy Deputy Commissioner is entitled; and
(b)other terms and conditions of service that apply to the Privacy Deputy Commissioner.
(4)Remuneration paid to the Privacy Deputy Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.
15.Appointment of person to act as Privacy Deputy Commissioner
The Governor may appoint an eligible person to act in the office of Privacy Deputy Commissioner during a period —
(a)when the Privacy Deputy Commissioner is —
(i)on leave of absence; or
(ii)unable to perform the functions of the Privacy Deputy Commissioner;
or
(b)when the Privacy Deputy Commissioner is suspended; or
(c)when the office of Privacy Deputy Commissioner is vacant.
16.Oath or affirmation of office of Privacy Deputy Commissioner
(1)Before performing the functions of the Privacy Deputy Commissioner for the first time, the Privacy Deputy Commissioner or a person appointed to act in the office of Privacy Deputy Commissioner must take an oath, or make an affirmation, that they will faithfully and impartially perform those functions, and that they will not, except in accordance with an information Act, divulge any information received in the performance of those functions.
(2)The oath or affirmation must be administered by the Governor.
Division 4 — General provisions about appointment of Information Commissioner and Deputy Commissioners
In this Division —
Acting Commissioner means a person appointed under section 7, 11 or 15 to act in the office of Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner;
Commissioner means the Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner.
18.Persons eligible for appointment
A person is eligible for appointment as a Commissioner if the person —
(a)is or has been a legal practitioner of at least 5 years’ standing; or
(b)is, in the opinion of the Governor, suitable for appointment as a Commissioner by reason of the person’s legal qualifications and experience, whether in this State or elsewhere.
The office of a Commissioner becomes vacant if —
(a)the period for which the Commissioner holds office expires; or
(b)the Commissioner —
(i)dies; or
(ii)resigns under section 20; or
(iii)is removed from office under section 21.
(1)A Commissioner may at any time resign from office by written notice addressed to the Governor.
(2)The resignation takes effect on the day on which the notice is given to the Governor or on a later day specified in the notice.
21.Suspension or removal from office
(1)A Commissioner may, at any time, be suspended or removed from office by the Governor on addresses from both Houses of Parliament.
(2)The Governor may suspend a Commissioner from office if the Governor is satisfied that the Commissioner —
(a)is physically or mentally incapable of performing the duties of their office; or
(b)has shown incompetence or neglect in performing those duties; or
(c)is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
(d)has been guilty of misconduct as defined in the Corruption, Crime and Misconduct Act 2003 section 4.
(3)If a Commissioner is suspended under subsection (2), the suspended Commissioner is restored to office unless —
(a)a statement of the grounds of suspension is laid before each House of Parliament during the first 7 sitting days of that House following the day of suspension; and
(b)each House of Parliament, during the session in which the statement is so laid, and within 30 sitting days after it is so laid, passes an address requesting the removal of the suspended Commissioner from office.
A Commissioner must not engage in paid employment outside the Commissioner’s functions under a written law without the approval of the Governor.
23.Public service officer appointed as Commissioner
(1)If a person who is a public service officer is appointed as a Commissioner, the person is entitled to retain any accruing and existing rights, including any rights under the State Superannuation Act 2000, as if service as a Commissioner were a continuation of service as a public service officer.
(2)If a person ceases to be a Commissioner and becomes a public service officer, the person’s service as a Commissioner is to be regarded as service in the Public Service for the purpose of determining that person’s rights as a public service officer and, if applicable, for the purposes of the State Superannuation Act 2000.
(3)Subsection (4) applies to a person if —
(a)immediately before the person is appointed as a Commissioner, the person occupies an office under the Public Sector Management Act 1994 Part 3; and
(b)the person serves 1 or more continuous terms of appointment as a Commissioner; and
(c)the period of the last of those appointments expires by the passage of time and the person is not again appointed as a Commissioner.
(4)The person is entitled to be appointed to an office under the Public Sector Management Act 1994 Part 3 of at least the equivalent level of classification as the office under that Part referred to in subsection (3)(a).
24.Provisions about Acting Commissioners
(1)The Governor may determine —
(a)any remuneration to which an Acting Commissioner is entitled; and
(b)any leave of absence to which an Acting Commissioner is entitled; and
(c)other terms and conditions of service that apply to an Acting Commissioner.
(2)An appointment of an Acting Commissioner under section 7, 11 or 15 —
(a)may be made at any time and may be terminated at any time by the Governor; and
(b)may be expressed to have effect only in the circumstances specified by the Governor.
(3)The validity of anything done by, to, or in relation to, a person purporting to act under section 7, 11 or 15 is not to be called into question on the ground that —
(a)the occasion for an appointment under that section had not arisen; or
(b)there is a defect or irregularity in the appointment; or
(c)the appointment had ceased to have effect; or
(d)the occasion for the person to act had not arisen or had ceased.
(4)Remuneration paid to an Acting Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.
Part 3 — Functions of Information Commissioner and Deputy Commissioners
25.Functions of Information Commissioner
(1)The Information Commissioner has the following functions —
(a)the freedom of information functions;
(b)the privacy functions;
(c)any other functions given to the Information Commissioner under an information Act or another written law.
(2)The Information Commissioner has all the powers that are needed for the performance of the Information Commissioner’s functions.
26.Functions of Information Access Deputy Commissioner
(1)The Information Access Deputy Commissioner has the following functions —
(a)the freedom of information functions;
(b)any other functions given to the Information Access Deputy Commissioner under a written law.
Note for this subsection:
The Freedom of Information Act 1992 section 97B provides for how the Information Access Deputy Commissioner performs the freedom of information functions.
(2)The Information Access Deputy Commissioner has all the powers that are needed for the performance of the Information Access Deputy Commissioner’s functions.
27.Functions of Privacy Deputy Commissioner
(1)The Privacy Deputy Commissioner has the following functions —
(a)the privacy functions;
(b)any other functions given to the Privacy Deputy Commissioner under a written law.
Note for this subsection:
The Privacy and Responsible Information Sharing Act 2024 section 142 provides for how the Privacy Deputy Commissioner performs the privacy functions.
(2)The Privacy Deputy Commissioner has all the powers that are needed for the performance of the Privacy Deputy Commissioner’s functions.
(1)The Information Commissioner may delegate to a member of staff any power or duty of the Information Commissioner, other than —
(a)the power of delegation under this subsection; and
(b)any power or duty that cannot be delegated because of the Privacy and Responsible Information Sharing Act 2024 section 143 or the Freedom of Information Act 1992 section 97C.
(2)The Information Access Deputy Commissioner may delegate to a member of staff any power or duty of the Information Access Deputy Commissioner, other than —
(a)the power of delegation under this subsection; and
(b)any power or duty that cannot be delegated because of the Freedom of Information Act 1992 section 97C.
(3)The Privacy Deputy Commissioner may delegate to a member of staff any power or duty of the Privacy Deputy Commissioner, other than —
(a)the power of delegation under this subsection; and
(b)any power or duty that cannot be delegated because of the Privacy and Responsible Information Sharing Act 2024 section 143.
(4)A delegation under this section must be in writing signed by the person making the delegation.
(5)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(6)A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(7)Nothing in this section limits the ability of the Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner to perform a function through an officer or agent.
Part 4 — Staff and related provisions
Public service officers may be appointed or made available under the Public Sector Management Act 1994 Part 3 to support the Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner in the performance of their functions.
30.Use of government staff and facilities
(1)The Information Commissioner may, by arrangement with the relevant employer, make use, either full‑time or part‑time, of the services of an officer or employee —
(a)in the Public Service; or
(b)in a State agency; or
(c)otherwise in the service of the State.
(2)The Information Commissioner may, by arrangement with a department of the Public Service or a State agency, make use of any facilities of the department or agency.
(3)An arrangement under subsection (1) or (2) must be made on terms agreed to by the parties.
(4)An arrangement made by the Information Commissioner under subsection (1) or (2) may include provision for the Information Access Deputy Commissioner or Privacy Deputy Commissioner to make use of the services of the officer or employee or the facilities.
31.Engagement of service providers
(1)The Information Commissioner may engage suitably qualified persons to provide services, information or advice to the Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner.
(2)A person engaged by the Information Commissioner under subsection (1) is engaged on the terms and conditions decided by the Information Commissioner.
32.Annual report to Parliament
(1)As soon as practicable after 30 June in a financial year, the Information Commissioner must —
(a)prepare a report on —
(i)the operation in the financial year of the Freedom of Information Act 1992 and the Privacy and Responsible Information Sharing Act 2024 Part 2 and Schedule 1; and
(ii)the operations of the Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner in the financial year;
and
(b)submit the report to the President of the Legislative Council and the Speaker of the Legislative Assembly.
(2)The annual report must include the following information for the financial year —
(a)the information required by the Freedom of Information Act 1992 section 111;
(b)the information required by the Privacy and Responsible Information Sharing Act 2024 section 146.
(3)The annual report referred to in subsection (1) may include recommendations of the Information Commissioner as to legislative or administrative changes that could be made to assist in achieving —
(a)the objects of the Freedom of Information Act 1992; and
(b)the objects of the Privacy and Responsible Information Sharing Act 2024 set out in section 3(a) to (e) of that Act.
(4)The President or Speaker must cause a copy of a report submitted to them under subsection (1) to be laid before the Legislative Council or Legislative Assembly, as the case requires, within 15 sitting days of that House after the report is submitted.
Note for this section:
The Information Commissioner must also prepare an annual report under the Financial Management Act 2006.
33.Secrecy and authorised disclosure and use of information
(1)An information official must not, directly or indirectly, record, disclose or use information obtained in the administration of an information Act.
Penalty for this subsection: a fine of $6 000.
(2)An information official does not commit an offence under subsection (1) if the recording, disclosure or use of the information is authorised under subsection (3).
(3)The recording, disclosure or use of information to which subsection (1) applies is authorised if the information is recorded, disclosed or used —
(a)for the purpose of, or in connection with, performing a function under an information Act or another written law; or
(b)as permitted or required by an information Act or another written law; or
(c)for the purposes of any legal proceedings arising out of the administration of an information Act or another written law; or
(d)with the written consent of the person to whom the information relates; or
(e)in circumstances prescribed by the regulations.
(4)Subsection (3) does not affect the operation of the Freedom of Information Act 1992 section 74.
34.Protection from personal liability
(1)No civil or criminal liability is incurred by an information official for anything that the information official has done, in good faith, in the performance or purported performance of a function under an information Act.
(2)The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.
(3)Despite subsection (1), the State is not relieved of any liability that it might have for an information official having done anything as described in that subsection.
(4)In this section, a reference to the doing of anything includes a reference to an omission to do anything.
The Governor may make regulations prescribing matters —
(a)required or permitted by this Act to be prescribed; or
(b)necessary or convenient for giving effect to the purposes of this Act.
Part 6 — Transitional provisions
(1)In this Part —
FOI Act Information Commissioner means the Information Commissioner appointed under the Freedom of Information Act 1992 section 56;
FOI Act staff member means a member of staff appointed under the Freedom of Information Act 1992 section 61(1);
new Information Commissioner means the Information Commissioner appointed under section 5(2);
transition day means the day on which Part 2 of this Act comes into operation under section 2(1)(d).
(2)A reference in this Part to a provision of the Freedom of Information Act 1992 that is deleted by Part 7 Division 4 of this Act is, on and after transition day, a reference to that provision as in force before transition day.
37.FOI Act Information Commissioner to continue as Information Access Deputy Commissioner
(1)A person who, immediately before transition day, is appointed as FOI Act Information Commissioner is, on and from transition day until the expiry of the period of that appointment, taken to be appointed as Information Access Deputy Commissioner under section 9(2) of this Act.
(2)A determination in effect under the Freedom of Information Act 1992 section 56(5) or (6) in relation to the person’s entitlement to leave of absence, or other terms and conditions of service, as FOI Act Information Commissioner is taken, on and from transition day, to be a determination under section 10(3) in relation to the person’s entitlement to leave of absence, or other terms and conditions of service, as Information Access Deputy Commissioner.
(3)The person retains all existing and accruing rights, including any rights under the State Superannuation Act 2000, as if the person’s appointment as Information Access Deputy Commissioner were a continuation of the person’s appointment as FOI Act Information Commissioner.
(4)Despite section 9(6), the person cannot be reappointed as Information Access Deputy Commissioner following the appointment that is taken to occur under subsection (1) if the reappointment would result in the aggregate period of all of the person’s appointments as FOI Act Information Commissioner and Information Access Deputy Commissioner exceeding 10 years.
(5)Section 23(3) and (4) apply to the person as if the person’s appointments as FOI Act Information Commissioner were appointments as a Commissioner within the meaning of that section.
(6)This section does not prevent the person from resigning, or being suspended or removed, from the office of Information Access Deputy Commissioner under Part 2 Division 4.
38.Acting FOI Act Information Commissioner to continue as Acting Information Access Deputy Commissioner
(1)If an appointment of a person to act in the office of FOI Act Information Commissioner is in force immediately before transition day under the Freedom of Information Act 1992 section 59, the appointment is, on and from transition day until the expiry of the period of that appointment, taken to be an appointment of the person to act in the office of Information Access Deputy Commissioner under section 11.
(2)If the appointment to act in the office of FOI Act Information Commissioner is expressed to have effect only in the circumstances specified in the instrument of appointment, subsection (1) applies whether or not those circumstances are applicable immediately before transition day.
(3)Subsection (1) does not prevent the termination of the appointment under section 24(2)(a).
39.FOI Act staff members to be appointed as public service officers
(1)A person who is an FOI Act staff member immediately before transition day is, on and from transition day, taken to be appointed as a public service officer referred to in section 29.
(2)The person’s appointment as a public service officer —
(a)is to a level of classification that is the same as the substantive level of classification that applied in relation to the person as an FOI Act staff member immediately before transition day; and
(b)is —
(i)if the person was appointed as an FOI Act staff member for an indefinite period — an appointment as a permanent officer (as defined in the Public Sector Management Act 1994 section 3(1)); and
(ii)if the person was appointed as an FOI Act staff member for a fixed term — an appointment as a term officer (as defined in the Public Sector Management Act 1994 section 3(1)) for the remainder of that fixed term as at transition day;
and
(c)does not affect the person’s remuneration.
(3)The person retains all existing and accruing rights, including any rights under the State Superannuation Act 2000, as if the person’s service as an FOI Act staff member were service as a public service officer.
(4)This section does not prevent the person from resigning, or otherwise ceasing to be a public service officer, under the Public Sector Management Act 1994.
40.Arrangements for use of staff continued
If an arrangement under the Freedom of Information Act 1992 section 61(4) is in effect immediately before transition day, the arrangement is taken, on and from transition day, to be an arrangement made under section 30(1) by the new Information Commissioner.
41.Things done or started under Freedom of Information Act 1992 before transition day
(1)Anything done by, to, or in relation to, the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 is, to the extent necessary or convenient for the purpose of continuing its effect on and after transition day, taken to have been done by, to, or in relation to, the new Information Commissioner.
Examples for this subsection:
1.If a requirement is made by the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 section 75(1), but has not been complied with before transition day, the requirement is taken to have been made by the new Information Commissioner.
2.If an application is made to the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 section 35, but is not decided before transition day, the application is taken to have been made to the new Information Commissioner.
(2)Anything that the FOI Act Information Commissioner started doing under the Freedom of Information Act 1992 before transition day may be continued on and after transition day by the new Information Commissioner.
Example for this subsection:
If the FOI Act Information Commissioner started dealing with a complaint made against an agency’s decision under the Freedom of Information Act 1992 section 65 before transition day, the new Information Commissioner may continue dealing with the complaint on and after transition day.
(3)Without limiting subsection (1) or (2), anything that the FOI Act Information Commissioner started doing under the Freedom of Information Act 1992 before transition day in the performance of a function that, on and after transition day, is a freedom of information function may be continued on and after transition day by the Information Access Deputy Commissioner acting in accordance with the Freedom of Information Act 1992 section 97B.
(1)This section applies if —
(a)the FOI Act Information Commissioner is a party to any legal proceedings arising under, or in relation to the administration of, the Freedom of Information Act 1992; and
(b)the proceedings have commenced, but not been finally determined, before transition day.
(2)On and from transition day, the new Information Commissioner is taken to be a party to the proceedings instead of the FOI Act Information Commissioner.
At the beginning of transition day, the information and records of the FOI Act Information Commissioner become information and records of the new Information Commissioner and the new Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner may hold, record, use or disclose the information and records for the purposes of performing their functions.
44.Application of Financial Management Act 2006 Part 5 Division 3
For the purposes of the Financial Management Act 2006 Part 5 Division 3, the department that before transition day was taken under section 5 of that Act to be constituted by the administration of the FOI Act Information Commissioner is taken to be abolished at the beginning of transition day.
(1)In this section —
specified means specified or described in regulations;
transitional matter —
(a)means a matter or issue of a transitional nature that arises as a result of the enactment of this Act or the coming into operation of any provisions of this Act or regulations made under it; and
(b)includes a savings or application matter.
(2)If there is not sufficient provision in this Part for dealing with a transitional matter, regulations may prescribe anything required, necessary or convenient to be prescribed in relation to the matter.
(3)Without limiting subsection (2), regulations made for the purposes of that subsection may provide that specified provisions of an information Act —
(a)do not apply to, or in relation to, a specified matter or thing; or
(b)apply with specified modifications to, or in relation to, a specified matter or thing.
(4)If regulations made for the purposes of subsection (2) provide that a specified state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in accordance with the Interpretation Act 1984 section 41(1)(a) but not earlier than transition day, the regulations have effect according to their terms.
(5)If regulations made for the purposes of subsection (2) contain a provision of a kind described in subsection (4), the provision does not operate so as —
(a)to affect in a manner prejudicial to any person (other than the State or an authority of the State) the rights of that person existing before the day of publication of those regulations; or
(b)to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.
Division 1 — Constitution Acts Amendment Act 1899 amended
This Division amends the Constitution Acts Amendment Act 1899.
In Schedule V Part 1 Division 2 delete the item relating to the Information Commissioner and insert:
Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner appointed under the Information Commissioner Act 2024.
Division 2 — Criminal Law (Mental Impairment) Act 2023 amended
This Division amends the Criminal Law (Mental Impairment) Act 2023.
In section 410(2) in the Table in the item for the Freedom of Information Act 1992 delete “s. 63(3)(aa)”.
Division 3 — Financial Management Act 2006 amended
This Division amends the Financial Management Act 2006.
(1)In section 5(1):
(a)in paragraph (d) delete “Investigations;” and insert:
Investigations,
(b)delete paragraph (e).
(2)In section 5(2) delete “subsection (1)” and insert:
subsection (1), or to a department of the Public Service known as the Office of the Information Commissioner,
52.Schedule 2 heading replaced
Delete the heading to Schedule 2 and insert:
Schedule 2 — Modifications to the Act as to certain administrations and the Office of the Information Commissioner
[s. 5(2)]
In Schedule 2 delete the item for section 54 and insert:
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54 |
54.(1)The accountable authority of — |
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(a)the agency taken to be constituted under section 5(1) by the administration of the Legislative Council is the Clerk of the Legislative Council; or |
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(b)the agency taken to be constituted under section 5(1) by the administration of the Legislative Assembly is the Clerk of the Legislative Assembly; or |
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(c)the agency taken to be constituted under section 5(1) by the administration of the Parliamentary Services Department is the Executive Manager (however designated) of the Parliamentary Services Department; or |
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(d)the agency taken to be constituted under section 5(1) by the administration of the Parliamentary Commissioner for Administrative Investigations is the chief executive officer of the department of the Public Service principally assisting in the administration of the Parliamentary Commissioner Act 1971; or |
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(e)an agency taken to be constituted under section 5(1) by the administration of a body or office that is the subject of regulations referred to in that provision is the person appointed, in writing, by the Treasurer to be the accountable authority of that agency; or |
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(f)a department of the Public Service known as the Office of the Information Commissioner is the Information Commissioner appointed under the Information Commissioner Act 2024. |
Division 4 — Freedom of Information Act 1992 amended
Subdivision 1 — Main amendments
This Subdivision amends the Freedom of Information Act 1992.
55.Part 4 Divisions 1 and 2 deleted
Delete Part 4 Divisions 1 and 2.
(1)In section 66(1):
(a)delete paragraph (a) and insert:
(a)be given in writing to the Information Commissioner; and
(b)in paragraph (d) delete “regulations; and” and insert:
regulations.
(c)delete paragraph (e).
(2)In section 66(2) and (3) delete “lodge” and insert:
make
(3)In section 66(4) delete “Commissioner may allow a complaint to be lodged” and insert:
Information Commissioner may allow a complaint to be made
In section 75(2) delete “member of the staff of the Commissioner in the course of the performance of his or her duties as a member of that staff,” and insert:
member of Commissioner staff in the course of the performance of their duties as a member of Commissioner staff
58.Part 4 Division 4 heading deleted
Delete the heading to Part 4 Division 4.
59.Sections 79 and 80 replaced
Delete sections 79 and 80 and insert:
79.Commissioner may give notice of officer’s conduct
If in dealing with a complaint the Information Commissioner forms the opinion that there is evidence that an officer of an agency has been guilty of a breach of duty, or of misconduct, in the administration of this Act, the Commissioner may take such steps as the Commissioner considers appropriate to bring the evidence to the notice of —
(a)if the person is the principal officer of the agency but is not a Minister — the Minister responsible for the agency; or
(b)if the person is the principal officer of a contractor or subcontractor — the Minister to whom the administration of the Court Security and Custodial Services Act 1999, the Declared Places (Mentally Impaired Accused) Act 2015 or the Prisons Act 1981 is committed, as is relevant to the case; or
(c)if the person is a Minister — the Parliament; or
(d)in any other case — the principal officer of the agency.
In section 81(1) and (2) delete “Commissioner for the purposes of Division 3.” and insert:
Information Commissioner for the purposes of this Division.
Note: The heading to amended section 81 is to read:
Disclosure of information and giving of evidence to Commissioner
Delete section 82.
In section 83:
(a)delete “Division 3” and insert:
this Division
(b)in paragraph (c) before “Commissioner” insert:
Information
After section 97 insert:
97A.Functions of Information Commissioner and Information Access Deputy Commissioner under this Act
(1)The Information Commissioner has the following functions under this Act —
(a)to deal with complaints made under Part 4 about decisions made by agencies in respect of access applications and applications for amendment of personal information;
(b)to ensure that agencies are aware of their responsibilities under this Act;
(c)to ensure that members of the public are aware of this Act and their rights under it;
(d)to provide assistance to members of the public and agencies on matters relevant to this Act;
(e)any other function given to the Information Commissioner under this Act.
(2)The Information Access Deputy Commissioner also has all the functions of the Information Commissioner under this Act, other than the following —
(a)giving a direction under section 97B(3);
(b)any function under section 111 in relation to a report referred to in that section.
Note for this section:
The Information Commissioner Act 2024 sections 25 and 26 provide for the functions of the Information Commissioner and Information Access Deputy Commissioner generally.
97B.Performance of freedom of information functions
(1)The functions under this Act that are functions of both the Information Commissioner and the Information Access Deputy Commissioner are the freedom of information functions.
(2)A freedom of information function may be performed —
(a)by the Information Commissioner; or
(b)by the Information Access Deputy Commissioner, subject to any direction given under subsection (3).
(3)The Information Commissioner may direct the Information Access Deputy Commissioner as to —
(a)which of the freedom of information functions the Information Access Deputy Commissioner is to perform; and
(b)the manner in which the Information Access Deputy Commissioner must perform any freedom of information function.
(4)If the Information Access Deputy Commissioner performs a freedom of information function —
(a)the Information Access Deputy Commissioner performs the function in the Information Access Deputy Commissioner’s own right and not on behalf of the Information Commissioner; and
(b)the Information Access Deputy Commissioner may perform the function upon the Information Access Deputy Commissioner’s 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
(c)the performance of the function is as effectual for all purposes as if it were performed by the Information Commissioner; and
(d)a reference in this Act or another written law to anything done by, to, or in relation to, the Information Commissioner in connection with the function includes a reference to the thing as done by, to, or in relation to, the Information Access Deputy Commissioner; and
(e)the Information Commissioner is not prevented from performing the same function on another occasion (in relation to a different matter).
97C.Certain functions cannot be delegated
The following functions cannot be delegated by the Information Commissioner or the Information Access Deputy Commissioner under the Information Commissioner Act 2024 section 28 —
(a)requiring an agency to produce a document for inspection under section 75(1);
(b)any function under section 76 in relation to dealing with a complaint;
(c)considering any matter or making any decision in relation to an exemption certificate under section 77.
(1)Delete section 111(1).
(2)In section 111(2) delete “The report is to include in relation to each agency — ” and insert:
Without limiting the Information Commissioner Act 2024 section 32, the Information Commissioner must include the following information in the annual report required under that section in relation to each agency for the financial year —
(3)In section 111(2) after each of paragraphs (a) to (k) delete “and”.
(4)Delete section 111(3)(a) and insert:
(a)provide the Information Commissioner with such information as the Commissioner requires for the purposes of this section; and
(5)Delete section 111(4) and (5).
In the Glossary clause 1 insert in alphabetical order:
freedom of information functions has the meaning given in section 97B(1);
Information Access Deputy Commissioner means the person appointed as Information Access Deputy Commissioner under the Information Commissioner Act 2024 section 9(2);
Information Commissioner means the person appointed as Information Commissioner under the Information Commissioner Act 2024 section 5(2);
member of Commissioner staff means a member of staff as defined in the Information Commissioner Act 2024 section 3;
66.Various references to “Commissioner” amended
Amend the provisions listed in the Table as set out in the Table.
Table
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Provision |
Delete |
Insert |
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s. 13(3) and (4) s. 66(6) s. 68(1) s. 69(2) and (3) s. 70(4), (5) and (6) s. 71(1) and (3) s. 74(2) s. 76(1), (2), (4), (5), (6), (7) and (8) s. 77(1), (4) and (7) s. 78(1), (4) and (5) s. 85(1), (2)(a), (3) and (4) s. 89(3) s. 97(2) |
Commissioner |
Information Commissioner |
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s. 13(5) and (7) s. 35(1) s. 48(3) and (4) s. 67(1) and (2) s. 69(4) s. 70(1), (2) and (3) s. 71(2) s. 72(1), (2) and (3) s. 73(1) s. 74(1) s. 75(1) and (2) s. 76(3) s. 77(3) s. 84 s. 85(5) s. 103(c) |
Commissioner (1st occurrence) |
Information Commissioner |
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s. 78(2) s. 87(1)(a), (b) and (c) |
Commissioner’s |
Information Commissioner’s |
Subdivision 2 — Amendment linked to commencement of Criminal Law (Mental Impairment) Act 2023
This Subdivision amends the Freedom of Information Act 1992.
In section 79(b) delete “(Mentally Impaired Accused)” and insert:
(Mental Impairment)
Division 5 — Parliamentary Commissioner Act 1971 amended
This Division amends the Parliamentary Commissioner Act 1971.
In Schedule 1 delete the item relating to the Freedom of Information Act 1992 and insert:
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Information Commissioner Act 2024 |
Information Commissioner. |
Division 6 — State Records Act 2000 amended
This Division amends the State Records Act 2000.
Delete section 58(b) and insert:
(b)the person who is the Information Commissioner, or who is acting in that office, under the Information Commissioner Act 2024; and
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
Acting Commissioner17
assent day2(1)
Commissioner17
eligible person3
FOI Act Information Commissioner36(1)
FOI Act staff member36(1)
freedom of information functions3
Information Access Deputy Commissioner3
information Act3
Information Commissioner3
information official3
member of staff3
new Information Commissioner36(1)
Privacy Deputy Commissioner3
privacy functions3
specified45(1)
transitional matter45(1)
transition day36(1)
© State of Western Australia 2024. This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au. Attribute work as: © State of Western Australia 2024. By Authority: GEOFF O. LAWN, Government Printer