{"id":"C2010A00052","name":"Australian Information Commissioner Act 2010","slug":"australian-information-commissioner-act-2010","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"52 of 2010","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":8141,"registerId":"commonwealth-C2010A00052-current","compilationNumber":null,"startDate":"2026-03-30","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n This Act may be cited as the Australian Information Commissioner Act 2010.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n (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.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

31 May 2010

2. Sections 3 to 36

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

1 November 2010

(see F2010L01547)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (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.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"#### 3 Definitions\n\n In this Act:\n\n> agency has the meaning given by the Freedom of Information Act 1982.\n\n> consumer data right matters has the meaning given by section 32A.\n\n> Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.\n\n> freedom of information functions has the meaning given by section 8.\n\n> freedom of information matters has the meaning given by subsection 31(1).\n\n> IGIS official has the meaning given by subsection 29(6).\n\n> Information Commissioner has the meaning given by section 3A.\n\n> information commissioner functions has the meaning given by section 7.\n\n> information officer has the meaning given by section 6.\n\n> partial access has a meaning affected by subsection 31(3).\n\n> Privacy Commissioner means the person appointed under section 14 as the Privacy Commissioner.\n\n> privacy functions has the meaning given by section 9.\n\n> privacy matters has the meaning given by section 32.","sortOrder":3},{"sectionNumber":"3A","sectionType":"section","heading":"Meaning of Information Commissioner in any Act","content":"#### 3A Meaning of Information Commissioner in any Act\n\n In any Act:\n\n> Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.","sortOrder":4},{"sectionNumber":"Part 2","sectionType":"part","heading":"Office of the Australian Information Commissioner","content":"An Act to establish the Office of the Australian Information Commissioner, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act may be cited as the Australian Information Commissioner Act 2010.\n\n#### 2 Commencement\n\n (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.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

31 May 2010

2. Sections 3 to 36

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

1 November 2010

(see F2010L01547)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (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.\n\n#### 3 Definitions\n\n In this Act:\n\n> agency has the meaning given by the Freedom of Information Act 1982.\n\n> consumer data right matters has the meaning given by section 32A.\n\n> Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.\n\n> freedom of information functions has the meaning given by section 8.\n\n> freedom of information matters has the meaning given by subsection 31(1).\n\n> IGIS official has the meaning given by subsection 29(6).\n\n> Information Commissioner has the meaning given by section 3A.\n\n> information commissioner functions has the meaning given by section 7.\n\n> information officer has the meaning given by section 6.\n\n> partial access has a meaning affected by subsection 31(3).\n\n> Privacy Commissioner means the person appointed under section 14 as the Privacy Commissioner.\n\n> privacy functions has the meaning given by section 9.\n\n> privacy matters has the meaning given by section 32.\n\n#### 3A Meaning of Information Commissioner in any Act\n\n In any Act:\n\n> Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.\n\n## Part 2—Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 4 Guide to this Part\n\nThis Part establishes the Office of the Australian Information Commissioner.\n\nThe Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.\n\nThe 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).\n\nThe functions of the Office are as follows:\n\n(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);\n\n(b) the privacy functions, which are mainly about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);\n\n(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.\n\nAll of the information officers may perform the freedom of information functions and the privacy functions.\n\nOnly the Information Commissioner can perform the information commissioner functions.\n\n### Division 2—Establishment\n\n#### 5 Establishment\n\n (1) The Office of the Australian Information Commissioner is established by this section.\n (2) The Office of the Australian Information Commissioner consists of:\n (a) the information officers; and\n (b) the staff mentioned in Part 3.\n (3) For the purposes of the Public Service Act 1999:\n (a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and\n (b) the Information Commissioner is the Head of that Statutory Agency.\n\n> Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).\n\n (4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n (a) the Office of the Australian Information Commissioner is a listed entity; and\n (b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and\n (c) the following persons are officials of the Office of the Australian Information Commissioner:\n (i) the information officers;\n (ii) the staff mentioned in Part 3;\n (iii) consultants engaged under section 24; and\n (d) the purposes of the Office of the Australian Information Commissioner include:\n (i) the functions of the Information Commissioner referred to in section 10; and\n (ii) the functions of the Freedom of Information Commissioner referred to in section 11; and\n (iii) the functions of the Privacy Commissioner referred to in section 12.\n\n#### 6 Definition of information officers\n\n Each of the following is an information officer:\n (a) the Information Commissioner;\n (b) the Freedom of Information Commissioner;\n (c) the Privacy Commissioner.\n\n### Division 3—Functions and powers of the information officers\n\n#### 7 Definition of information commissioner functions\n\n The information commissioner functions are as follows:\n (a) to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:\n (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and\n (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);\n (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.\n\n#### 8 Definition of freedom of information functions\n\n The freedom of information functions are as follows:\n (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);\n (b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;\n (c) the functions conferred by section 8F of the Freedom of Information Act 1982;\n (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;\n (e) issuing guidelines under section 93A of the Freedom of Information Act 1982;\n (f) making reports and recommendations to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act;\n (g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;\n (h) reviewing decisions under Part VII of the Freedom of Information Act 1982;\n (i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;\n (j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;\n (k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;\n (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.\n\n#### 9 Definition of privacy functions\n\n (1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if:\n (a) the functions:\n (i) relate to the privacy of an individual; and\n (ii) are not freedom of information functions; or\n (b) the functions are conferred by:\n (i) Part IVD (about the consumer data right) of the Competition and Consumer Act 2010; or\n (ii) an instrument made under that Part; or\n (iii) another Act because of that Part.\n (2) The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.\n\n```html\n

Provisions that confer privacy functions

Item

Legislation

Provision

1

Privacy Act 1988

Division 2 of Part IV

2

Crimes Act 1914

Division 5 of Part VIIC

3

Data‑matching Program (Assistance and Tax) Act 1990

Sections 12 to 14

4

National Health Act 1953

Section 135AA

5

Telecommunications Act 1997

Section 309

\n```\n\n#### 10 Functions and powers of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n (a) the information commissioner functions;\n (b) the freedom of information functions;\n (c) the privacy functions.\n (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.\n\n#### 11 Functions and powers of the Freedom of Information Commissioner\n\n (1) The Freedom of Information Commissioner has the freedom of information functions.\n (2) The Freedom of Information Commissioner may also perform the privacy functions.\n (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.\n (4) However, the following actions may only be taken with the approval of the Information Commissioner:\n (a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);\n (b) the making of a report or recommendation under paragraph 8(f) to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n#### 12 Functions and powers of the Privacy Commissioner\n\n (1) The Privacy Commissioner has the privacy functions.\n (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)).\n (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.\n (4) However, the following actions may only be undertaken with the approval of the Information Commissioner:\n (a) performing the functions, and exercising the powers, conferred on the Commissioner by Part IIIB of the Privacy Act 1988;\n (c) the making of guidelines under paragraph 28(1)(a) or (b) of the Privacy Act 1988, or the variation or revocation of those guidelines;\n (d) the issue, variation or revocation of rules under:\n (i) section 17 of the Privacy Act 1988; or\n (ii) section 12 of the Data‑matching Program (Assistance and Tax) Act 1990; or\n (iii) section 135AA of the National Health Act 1953;\n (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 28B(1)(c) of the Privacy Act 1988;\n (g) advising the Minister whether an exclusion from the application of Division 3 of Part VIIC 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 85ZZ(1)(b) of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n## Part 3—Appointments and staffing for the Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 13 Guide to this Part\n\nThis Division provides for:\n\n(a) the appointment of the information officers; and\n\n(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.\n\nThe Information Commissioner may engage consultants.\n\nThe 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.\n\n### Division 2—The information officers\n\n#### 14 Appointment\n\n Appointment of the Australian Information Commissioner\n (1) The Australian Information Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The Australian Information Commissioner is referred to in this and other Acts as the Information Commissioner (see sections 3 and 3A).\n\n Appointment of the Freedom of Information Commissioner\n (2) The Freedom of Information Commissioner is to be appointed by the Governor‑General by written instrument.\n (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.\n Appointment of the Privacy Commissioner\n (4) The Privacy Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The information officers are all eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.\n\n#### 15 General terms and conditions of appointment\n\n (1) An information officer holds office for the period specified in the information officer’s instrument of appointment. The period must not exceed 5 years.\n (2) An information officer holds office on a full‑time basis.\n (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 Governor‑General.\n\n#### 16 Restriction on outside employment\n\n An information officer must not engage in paid employment outside the duties of his or her office without the Minister’s approval.\n\n#### 17 Remuneration\n\n (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.\n (2) An information officer is to be paid the allowances that are prescribed by the regulations.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 18 Leave of absence\n\n (1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n (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.\n\n#### 19 Resignation\n\n (1) An information officer may resign his or her appointment by giving the Governor‑General a written resignation.\n (2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.\n\n#### 20 Termination of appointment\n\n (1) The Governor‑General may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.\n (2) The Governor‑General must terminate the appointment of an information officer if any of the following apply:\n (a) the information officer:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with his or her creditors; or\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;\n (b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n (c) the information officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;\n (d) the information officer fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n#### 21 Acting appointments\n\n (1) The Minister may, by written instrument, appoint a person to act as an information officer:\n (a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the information officer:\n (i) is absent from duty or from Australia; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (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.\n\n#### 22 Disclosure of interests\n\n (1) A disclosure by an information officer under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the information officer is taken not to have complied with section 29 of that Act if he or she does not comply with subsection (1) of this section.\n\n### Division 3—Staff, consultants and delegations\n\n#### 23 Staff\n\n The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.\n\n#### 24 Consultants\n\n (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 section 10).\n (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.\n\n#### 25 Delegation by the Information Commissioner\n\n (1) Subject to subsection (2), 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:\n (a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);\n (b) preparing the report mentioned in section 30;\n (c) issuing guidelines as mentioned in paragraph 8(e);\n (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);\n (f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);\n (i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);\n (j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);\n (k) issuing rules under section 17 of the Privacy Act 1988.\n (2) The Information Commissioner may only delegate the following functions or powers to a member of staff of the Office of the Australian Information Commissioner who is an SES employee, or an acting SES employee, or who holds, or is acting in, a position that is equivalent to, or higher than, a position occupied by an SES employee:\n (a) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);\n (b) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);\n (c) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);\n (d) making determinations for the purposes of section 52 of the Privacy Act 1988.\n\n## Part 4—Information Advisory Committee\n\n#### 26 Guide to this Part\n\nThis Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.\n\n#### 27 Establishment and functions\n\n (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.\n (2) The Committee consists of the following persons:\n (a) the Information Commissioner, as Chair;\n (b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;\n (c) such other persons as the Minister thinks fit and who, in the Minister’s opinion, hold suitable qualifications or experience.\n (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.\n (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).\n\n#### 27A Disclosure of interests\n\n Disclosure to Minister\n (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 member’s functions.\n Disclosure to Information Advisory Committee\n (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.\n (3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee member’s knowledge.\n (4) The disclosure must be recorded in the minutes of the meeting of the Committee.\n (5) Unless the Committee otherwise determines, the Committee member:\n (a) must not be present during any deliberation by the Committee on the matter; and\n (b) must not take part in any decision of the Committee with respect to the matter.\n (6) For the purposes of making a determination under subsection (5), the Committee member:\n (a) must not be present during any deliberation of the Committee for the purpose of making the determination; and\n (b) must not take part in making the determination.\n (7) A determination under subsection (5) must be recorded in the minutes of the meeting of the Committee.\n Information Commissioner\n (8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.\n\n> Note: The Information Commissioner, as an information officer, is required to disclose material personal interests to the Minister (see section 22).\n\n## Part 5—Miscellaneous\n\n#### 28 Guide to this Part\n\nThis Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:\n\n(a) an offence for unauthorised dealings with information;\n\n(b) the requirements for annual reports;\n\n(c) immunity from legal suit;\n\n(d) the making of regulations.\n\n#### 29 Unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (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.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) both of the following apply:\n (i) the information was acquired by the person in the course of performing an information commissioner function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing an information commissioner function or exercising a related power; or\n (aa) both of the following apply:\n (i) the information was acquired by the person in the course of performing a freedom of information function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a freedom of information function or exercising a related power; or\n (ab) both of the following apply:\n (i) the information was acquired by the person in the course of performing a privacy function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a privacy function or exercising a related power; or\n (ac) for information covered by subsection (5)—the person records, discloses or otherwise uses the information in the course of any of the following:\n (i) performing a function described in paragraph 9(1)(b), or exercising a related power;\n (ii) providing information to the Minister or the Department;\n (iii) providing information to the Minister administering Part IVD of the Competition and Consumer Act 2010 or the Department administered by that Minister;\n (iv) providing information to the Australian Competition and Consumer Commission or the Data Recipient Accreditor (within the meaning of that Act); or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information; or\n (d) the person:\n (i) records or otherwise uses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or\n (ii) discloses the information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (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:\n (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;\n (b) produce all or part of a document that contains information of that kind to a court.\n (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.\n (5) This subsection covers information that:\n (a) was acquired in the course of performing a function described in paragraph 9(1)(b) (about the consumer data right), or exercising a related power; or\n (b) could be relevant to either of the following decisions:\n (i) a decision under subsection 56CA(1) (about accreditation for the consumer data right) of the Competition and Consumer Act 2010;\n (ii) a decision under the consumer data rules (within the meaning of that Act) relating to a person’s accreditation under subsection 56CA(1) of that Act.\n (6) In this Act:\n\n> IGIS official means:\n\n (a) the Inspector‑General of Intelligence and Security; or\n (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.\n\n#### 30 Annual report\n\n The annual report prepared by the Information Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include:\n (a) the freedom of information matters (see section 31); and\n (b) the privacy matters (see section 32); and\n (c) the consumer data right matters (see section 32A).\n\n#### 31 Definition of the freedom of information matters\n\n (1) The freedom of information matters are as follows:\n (a) information about any guidelines mentioned in paragraph 8(e) issued during the year and the matters to which those guidelines relate;\n (b) the number of requests under the Freedom of Information Act 1982 to which subsection (2) applies;\n (c) the number of applications under section 48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;\n (d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;\n (e) the number of applications made under Part VI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;\n (f) the number of applications made under Part VII 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;\n (g) the number of applications made under Part VIIA of the Freedom of Information Act 1982 during the year to the Administrative Review Tribunal for the review of decisions, and particulars of the results of those reviews;\n (h) the number of complaints made under Part VIIB 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;\n (i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agency’s obligations under the Freedom of Information Act 1982.\n (2) This subsection applies to a request if, during the year:\n (a) the request was received under section 15 of the Freedom of Information Act 1982; or\n (b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or\n (c) access to the document (or all of the documents) to which the request relates was refused; or\n (d) partial access to the document (or documents) to which the request relates was granted.\n (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:\n (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;\n (b) the request related to 2 or more documents and access was refused to one or more of the documents.\n\n#### 32 Definition of the privacy matters\n\n (1) The privacy matters are as follows:\n (a) a statement of the performance during the year of the privacy functions conferred by section 17 and paragraph 28A(1)(d) of the Privacy Act 1988;\n (b) a statement about the operation of registered APP codes under the Privacy Act 1988 that contain procedures covered by subsection (2), including details about the number of complaints made during the year under codes, their nature and outcome;\n (c) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 during the year;\n (d) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 in relation to which the Commissioner has decided during the year under section 41 of that Act not to investigate, or not to investigate further, and the relevant grounds for the decision.\n (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.\n\n#### 32A Definition of the consumer data right matters\n\n The consumer data right matters are a statement of the performance of the functions conferred as described in paragraph 9(1)(b).\n\n#### 33 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken.\n (2) The review must:\n (a) start 2 years after the commencement of this section; and\n (b) be completed within 6 months.\n (3) The Minister must cause a written report about the review to be prepared.\n (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.\n\n#### 34 Privileges and immunities of the Crown\n\n The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.\n\n#### 35 Information officer etc. not to be sued\n\n (1) This section applies to a person if:\n (a) the person is an information officer; or\n (b) the person is acting under the direction or authority of an information officer.\n (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.\n\n#### 36 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) required or permitted by this Act to be prescribed; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":5},{"sectionNumber":"Division 1","sectionType":"division","heading":"Introduction","content":"An Act to establish the Office of the Australian Information Commissioner, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act may be cited as the Australian Information Commissioner Act 2010.\n\n#### 2 Commencement\n\n (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.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

31 May 2010

2. Sections 3 to 36

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

1 November 2010

(see F2010L01547)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (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.\n\n#### 3 Definitions\n\n In this Act:\n\n> agency has the meaning given by the Freedom of Information Act 1982.\n\n> consumer data right matters has the meaning given by section 32A.\n\n> Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.\n\n> freedom of information functions has the meaning given by section 8.\n\n> freedom of information matters has the meaning given by subsection 31(1).\n\n> IGIS official has the meaning given by subsection 29(6).\n\n> Information Commissioner has the meaning given by section 3A.\n\n> information commissioner functions has the meaning given by section 7.\n\n> information officer has the meaning given by section 6.\n\n> partial access has a meaning affected by subsection 31(3).\n\n> Privacy Commissioner means the person appointed under section 14 as the Privacy Commissioner.\n\n> privacy functions has the meaning given by section 9.\n\n> privacy matters has the meaning given by section 32.\n\n#### 3A Meaning of Information Commissioner in any Act\n\n In any Act:\n\n> Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.\n\n## Part 2—Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 4 Guide to this Part\n\nThis Part establishes the Office of the Australian Information Commissioner.\n\nThe Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.\n\nThe 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).\n\nThe functions of the Office are as follows:\n\n(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);\n\n(b) the privacy functions, which are mainly about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);\n\n(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.\n\nAll of the information officers may perform the freedom of information functions and the privacy functions.\n\nOnly the Information Commissioner can perform the information commissioner functions.\n\n### Division 2—Establishment\n\n#### 5 Establishment\n\n (1) The Office of the Australian Information Commissioner is established by this section.\n (2) The Office of the Australian Information Commissioner consists of:\n (a) the information officers; and\n (b) the staff mentioned in Part 3.\n (3) For the purposes of the Public Service Act 1999:\n (a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and\n (b) the Information Commissioner is the Head of that Statutory Agency.\n\n> Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).\n\n (4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n (a) the Office of the Australian Information Commissioner is a listed entity; and\n (b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and\n (c) the following persons are officials of the Office of the Australian Information Commissioner:\n (i) the information officers;\n (ii) the staff mentioned in Part 3;\n (iii) consultants engaged under section 24; and\n (d) the purposes of the Office of the Australian Information Commissioner include:\n (i) the functions of the Information Commissioner referred to in section 10; and\n (ii) the functions of the Freedom of Information Commissioner referred to in section 11; and\n (iii) the functions of the Privacy Commissioner referred to in section 12.\n\n#### 6 Definition of information officers\n\n Each of the following is an information officer:\n (a) the Information Commissioner;\n (b) the Freedom of Information Commissioner;\n (c) the Privacy Commissioner.\n\n### Division 3—Functions and powers of the information officers\n\n#### 7 Definition of information commissioner functions\n\n The information commissioner functions are as follows:\n (a) to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:\n (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and\n (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);\n (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.\n\n#### 8 Definition of freedom of information functions\n\n The freedom of information functions are as follows:\n (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);\n (b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;\n (c) the functions conferred by section 8F of the Freedom of Information Act 1982;\n (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;\n (e) issuing guidelines under section 93A of the Freedom of Information Act 1982;\n (f) making reports and recommendations to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act;\n (g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;\n (h) reviewing decisions under Part VII of the Freedom of Information Act 1982;\n (i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;\n (j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;\n (k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;\n (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.\n\n#### 9 Definition of privacy functions\n\n (1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if:\n (a) the functions:\n (i) relate to the privacy of an individual; and\n (ii) are not freedom of information functions; or\n (b) the functions are conferred by:\n (i) Part IVD (about the consumer data right) of the Competition and Consumer Act 2010; or\n (ii) an instrument made under that Part; or\n (iii) another Act because of that Part.\n (2) The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.\n\n```html\n

Provisions that confer privacy functions

Item

Legislation

Provision

1

Privacy Act 1988

Division 2 of Part IV

2

Crimes Act 1914

Division 5 of Part VIIC

3

Data‑matching Program (Assistance and Tax) Act 1990

Sections 12 to 14

4

National Health Act 1953

Section 135AA

5

Telecommunications Act 1997

Section 309

\n```\n\n#### 10 Functions and powers of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n (a) the information commissioner functions;\n (b) the freedom of information functions;\n (c) the privacy functions.\n (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.\n\n#### 11 Functions and powers of the Freedom of Information Commissioner\n\n (1) The Freedom of Information Commissioner has the freedom of information functions.\n (2) The Freedom of Information Commissioner may also perform the privacy functions.\n (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.\n (4) However, the following actions may only be taken with the approval of the Information Commissioner:\n (a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);\n (b) the making of a report or recommendation under paragraph 8(f) to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n#### 12 Functions and powers of the Privacy Commissioner\n\n (1) The Privacy Commissioner has the privacy functions.\n (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)).\n (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.\n (4) However, the following actions may only be undertaken with the approval of the Information Commissioner:\n (a) performing the functions, and exercising the powers, conferred on the Commissioner by Part IIIB of the Privacy Act 1988;\n (c) the making of guidelines under paragraph 28(1)(a) or (b) of the Privacy Act 1988, or the variation or revocation of those guidelines;\n (d) the issue, variation or revocation of rules under:\n (i) section 17 of the Privacy Act 1988; or\n (ii) section 12 of the Data‑matching Program (Assistance and Tax) Act 1990; or\n (iii) section 135AA of the National Health Act 1953;\n (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 28B(1)(c) of the Privacy Act 1988;\n (g) advising the Minister whether an exclusion from the application of Division 3 of Part VIIC 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 85ZZ(1)(b) of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n## Part 3—Appointments and staffing for the Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 13 Guide to this Part\n\nThis Division provides for:\n\n(a) the appointment of the information officers; and\n\n(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.\n\nThe Information Commissioner may engage consultants.\n\nThe 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.\n\n### Division 2—The information officers\n\n#### 14 Appointment\n\n Appointment of the Australian Information Commissioner\n (1) The Australian Information Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The Australian Information Commissioner is referred to in this and other Acts as the Information Commissioner (see sections 3 and 3A).\n\n Appointment of the Freedom of Information Commissioner\n (2) The Freedom of Information Commissioner is to be appointed by the Governor‑General by written instrument.\n (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.\n Appointment of the Privacy Commissioner\n (4) The Privacy Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The information officers are all eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.\n\n#### 15 General terms and conditions of appointment\n\n (1) An information officer holds office for the period specified in the information officer’s instrument of appointment. The period must not exceed 5 years.\n (2) An information officer holds office on a full‑time basis.\n (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 Governor‑General.\n\n#### 16 Restriction on outside employment\n\n An information officer must not engage in paid employment outside the duties of his or her office without the Minister’s approval.\n\n#### 17 Remuneration\n\n (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.\n (2) An information officer is to be paid the allowances that are prescribed by the regulations.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 18 Leave of absence\n\n (1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n (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.\n\n#### 19 Resignation\n\n (1) An information officer may resign his or her appointment by giving the Governor‑General a written resignation.\n (2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.\n\n#### 20 Termination of appointment\n\n (1) The Governor‑General may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.\n (2) The Governor‑General must terminate the appointment of an information officer if any of the following apply:\n (a) the information officer:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with his or her creditors; or\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;\n (b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n (c) the information officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;\n (d) the information officer fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n#### 21 Acting appointments\n\n (1) The Minister may, by written instrument, appoint a person to act as an information officer:\n (a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the information officer:\n (i) is absent from duty or from Australia; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (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.\n\n#### 22 Disclosure of interests\n\n (1) A disclosure by an information officer under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the information officer is taken not to have complied with section 29 of that Act if he or she does not comply with subsection (1) of this section.\n\n### Division 3—Staff, consultants and delegations\n\n#### 23 Staff\n\n The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.\n\n#### 24 Consultants\n\n (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 section 10).\n (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.\n\n#### 25 Delegation by the Information Commissioner\n\n (1) Subject to subsection (2), 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:\n (a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);\n (b) preparing the report mentioned in section 30;\n (c) issuing guidelines as mentioned in paragraph 8(e);\n (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);\n (f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);\n (i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);\n (j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);\n (k) issuing rules under section 17 of the Privacy Act 1988.\n (2) The Information Commissioner may only delegate the following functions or powers to a member of staff of the Office of the Australian Information Commissioner who is an SES employee, or an acting SES employee, or who holds, or is acting in, a position that is equivalent to, or higher than, a position occupied by an SES employee:\n (a) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);\n (b) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);\n (c) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);\n (d) making determinations for the purposes of section 52 of the Privacy Act 1988.\n\n## Part 4—Information Advisory Committee\n\n#### 26 Guide to this Part\n\nThis Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.\n\n#### 27 Establishment and functions\n\n (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.\n (2) The Committee consists of the following persons:\n (a) the Information Commissioner, as Chair;\n (b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;\n (c) such other persons as the Minister thinks fit and who, in the Minister’s opinion, hold suitable qualifications or experience.\n (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.\n (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).\n\n#### 27A Disclosure of interests\n\n Disclosure to Minister\n (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 member’s functions.\n Disclosure to Information Advisory Committee\n (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.\n (3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee member’s knowledge.\n (4) The disclosure must be recorded in the minutes of the meeting of the Committee.\n (5) Unless the Committee otherwise determines, the Committee member:\n (a) must not be present during any deliberation by the Committee on the matter; and\n (b) must not take part in any decision of the Committee with respect to the matter.\n (6) For the purposes of making a determination under subsection (5), the Committee member:\n (a) must not be present during any deliberation of the Committee for the purpose of making the determination; and\n (b) must not take part in making the determination.\n (7) A determination under subsection (5) must be recorded in the minutes of the meeting of the Committee.\n Information Commissioner\n (8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.\n\n> Note: The Information Commissioner, as an information officer, is required to disclose material personal interests to the Minister (see section 22).\n\n## Part 5—Miscellaneous\n\n#### 28 Guide to this Part\n\nThis Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:\n\n(a) an offence for unauthorised dealings with information;\n\n(b) the requirements for annual reports;\n\n(c) immunity from legal suit;\n\n(d) the making of regulations.\n\n#### 29 Unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (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.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) both of the following apply:\n (i) the information was acquired by the person in the course of performing an information commissioner function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing an information commissioner function or exercising a related power; or\n (aa) both of the following apply:\n (i) the information was acquired by the person in the course of performing a freedom of information function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a freedom of information function or exercising a related power; or\n (ab) both of the following apply:\n (i) the information was acquired by the person in the course of performing a privacy function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a privacy function or exercising a related power; or\n (ac) for information covered by subsection (5)—the person records, discloses or otherwise uses the information in the course of any of the following:\n (i) performing a function described in paragraph 9(1)(b), or exercising a related power;\n (ii) providing information to the Minister or the Department;\n (iii) providing information to the Minister administering Part IVD of the Competition and Consumer Act 2010 or the Department administered by that Minister;\n (iv) providing information to the Australian Competition and Consumer Commission or the Data Recipient Accreditor (within the meaning of that Act); or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information; or\n (d) the person:\n (i) records or otherwise uses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or\n (ii) discloses the information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (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:\n (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;\n (b) produce all or part of a document that contains information of that kind to a court.\n (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.\n (5) This subsection covers information that:\n (a) was acquired in the course of performing a function described in paragraph 9(1)(b) (about the consumer data right), or exercising a related power; or\n (b) could be relevant to either of the following decisions:\n (i) a decision under subsection 56CA(1) (about accreditation for the consumer data right) of the Competition and Consumer Act 2010;\n (ii) a decision under the consumer data rules (within the meaning of that Act) relating to a person’s accreditation under subsection 56CA(1) of that Act.\n (6) In this Act:\n\n> IGIS official means:\n\n (a) the Inspector‑General of Intelligence and Security; or\n (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.\n\n#### 30 Annual report\n\n The annual report prepared by the Information Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include:\n (a) the freedom of information matters (see section 31); and\n (b) the privacy matters (see section 32); and\n (c) the consumer data right matters (see section 32A).\n\n#### 31 Definition of the freedom of information matters\n\n (1) The freedom of information matters are as follows:\n (a) information about any guidelines mentioned in paragraph 8(e) issued during the year and the matters to which those guidelines relate;\n (b) the number of requests under the Freedom of Information Act 1982 to which subsection (2) applies;\n (c) the number of applications under section 48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;\n (d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;\n (e) the number of applications made under Part VI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;\n (f) the number of applications made under Part VII 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;\n (g) the number of applications made under Part VIIA of the Freedom of Information Act 1982 during the year to the Administrative Review Tribunal for the review of decisions, and particulars of the results of those reviews;\n (h) the number of complaints made under Part VIIB 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;\n (i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agency’s obligations under the Freedom of Information Act 1982.\n (2) This subsection applies to a request if, during the year:\n (a) the request was received under section 15 of the Freedom of Information Act 1982; or\n (b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or\n (c) access to the document (or all of the documents) to which the request relates was refused; or\n (d) partial access to the document (or documents) to which the request relates was granted.\n (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:\n (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;\n (b) the request related to 2 or more documents and access was refused to one or more of the documents.\n\n#### 32 Definition of the privacy matters\n\n (1) The privacy matters are as follows:\n (a) a statement of the performance during the year of the privacy functions conferred by section 17 and paragraph 28A(1)(d) of the Privacy Act 1988;\n (b) a statement about the operation of registered APP codes under the Privacy Act 1988 that contain procedures covered by subsection (2), including details about the number of complaints made during the year under codes, their nature and outcome;\n (c) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 during the year;\n (d) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 in relation to which the Commissioner has decided during the year under section 41 of that Act not to investigate, or not to investigate further, and the relevant grounds for the decision.\n (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.\n\n#### 32A Definition of the consumer data right matters\n\n The consumer data right matters are a statement of the performance of the functions conferred as described in paragraph 9(1)(b).\n\n#### 33 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken.\n (2) The review must:\n (a) start 2 years after the commencement of this section; and\n (b) be completed within 6 months.\n (3) The Minister must cause a written report about the review to be prepared.\n (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.\n\n#### 34 Privileges and immunities of the Crown\n\n The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.\n\n#### 35 Information officer etc. not to be sued\n\n (1) This section applies to a person if:\n (a) the person is an information officer; or\n (b) the person is acting under the direction or authority of an information officer.\n (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.\n\n#### 36 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) required or permitted by this Act to be prescribed; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":6},{"sectionNumber":"4","sectionType":"section","heading":"Guide to this Part","content":"#### 4 Guide to this Part\n\nThis Part establishes the Office of the Australian Information Commissioner.\n\nThe Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.\n\nThe 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).\n\nThe functions of the Office are as follows:\n\n(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);\n\n(b) the privacy functions, which are mainly about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);\n\n(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.\n\nAll of the information officers may perform the freedom of information functions and the privacy functions.\n\nOnly the Information Commissioner can perform the information commissioner functions.","sortOrder":7},{"sectionNumber":"Division 2","sectionType":"division","heading":"Establishment","content":"An Act to establish the Office of the Australian Information Commissioner, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act may be cited as the Australian Information Commissioner Act 2010.\n\n#### 2 Commencement\n\n (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.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

31 May 2010

2. Sections 3 to 36

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

1 November 2010

(see F2010L01547)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (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.\n\n#### 3 Definitions\n\n In this Act:\n\n> agency has the meaning given by the Freedom of Information Act 1982.\n\n> consumer data right matters has the meaning given by section 32A.\n\n> Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.\n\n> freedom of information functions has the meaning given by section 8.\n\n> freedom of information matters has the meaning given by subsection 31(1).\n\n> IGIS official has the meaning given by subsection 29(6).\n\n> Information Commissioner has the meaning given by section 3A.\n\n> information commissioner functions has the meaning given by section 7.\n\n> information officer has the meaning given by section 6.\n\n> partial access has a meaning affected by subsection 31(3).\n\n> Privacy Commissioner means the person appointed under section 14 as the Privacy Commissioner.\n\n> privacy functions has the meaning given by section 9.\n\n> privacy matters has the meaning given by section 32.\n\n#### 3A Meaning of Information Commissioner in any Act\n\n In any Act:\n\n> Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.\n\n## Part 2—Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 4 Guide to this Part\n\nThis Part establishes the Office of the Australian Information Commissioner.\n\nThe Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.\n\nThe 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).\n\nThe functions of the Office are as follows:\n\n(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);\n\n(b) the privacy functions, which are mainly about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);\n\n(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.\n\nAll of the information officers may perform the freedom of information functions and the privacy functions.\n\nOnly the Information Commissioner can perform the information commissioner functions.\n\n### Division 2—Establishment\n\n#### 5 Establishment\n\n (1) The Office of the Australian Information Commissioner is established by this section.\n (2) The Office of the Australian Information Commissioner consists of:\n (a) the information officers; and\n (b) the staff mentioned in Part 3.\n (3) For the purposes of the Public Service Act 1999:\n (a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and\n (b) the Information Commissioner is the Head of that Statutory Agency.\n\n> Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).\n\n (4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n (a) the Office of the Australian Information Commissioner is a listed entity; and\n (b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and\n (c) the following persons are officials of the Office of the Australian Information Commissioner:\n (i) the information officers;\n (ii) the staff mentioned in Part 3;\n (iii) consultants engaged under section 24; and\n (d) the purposes of the Office of the Australian Information Commissioner include:\n (i) the functions of the Information Commissioner referred to in section 10; and\n (ii) the functions of the Freedom of Information Commissioner referred to in section 11; and\n (iii) the functions of the Privacy Commissioner referred to in section 12.\n\n#### 6 Definition of information officers\n\n Each of the following is an information officer:\n (a) the Information Commissioner;\n (b) the Freedom of Information Commissioner;\n (c) the Privacy Commissioner.\n\n### Division 3—Functions and powers of the information officers\n\n#### 7 Definition of information commissioner functions\n\n The information commissioner functions are as follows:\n (a) to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:\n (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and\n (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);\n (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.\n\n#### 8 Definition of freedom of information functions\n\n The freedom of information functions are as follows:\n (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);\n (b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;\n (c) the functions conferred by section 8F of the Freedom of Information Act 1982;\n (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;\n (e) issuing guidelines under section 93A of the Freedom of Information Act 1982;\n (f) making reports and recommendations to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act;\n (g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;\n (h) reviewing decisions under Part VII of the Freedom of Information Act 1982;\n (i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;\n (j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;\n (k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;\n (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.\n\n#### 9 Definition of privacy functions\n\n (1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if:\n (a) the functions:\n (i) relate to the privacy of an individual; and\n (ii) are not freedom of information functions; or\n (b) the functions are conferred by:\n (i) Part IVD (about the consumer data right) of the Competition and Consumer Act 2010; or\n (ii) an instrument made under that Part; or\n (iii) another Act because of that Part.\n (2) The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.\n\n```html\n

Provisions that confer privacy functions

Item

Legislation

Provision

1

Privacy Act 1988

Division 2 of Part IV

2

Crimes Act 1914

Division 5 of Part VIIC

3

Data‑matching Program (Assistance and Tax) Act 1990

Sections 12 to 14

4

National Health Act 1953

Section 135AA

5

Telecommunications Act 1997

Section 309

\n```\n\n#### 10 Functions and powers of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n (a) the information commissioner functions;\n (b) the freedom of information functions;\n (c) the privacy functions.\n (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.\n\n#### 11 Functions and powers of the Freedom of Information Commissioner\n\n (1) The Freedom of Information Commissioner has the freedom of information functions.\n (2) The Freedom of Information Commissioner may also perform the privacy functions.\n (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.\n (4) However, the following actions may only be taken with the approval of the Information Commissioner:\n (a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);\n (b) the making of a report or recommendation under paragraph 8(f) to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n#### 12 Functions and powers of the Privacy Commissioner\n\n (1) The Privacy Commissioner has the privacy functions.\n (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)).\n (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.\n (4) However, the following actions may only be undertaken with the approval of the Information Commissioner:\n (a) performing the functions, and exercising the powers, conferred on the Commissioner by Part IIIB of the Privacy Act 1988;\n (c) the making of guidelines under paragraph 28(1)(a) or (b) of the Privacy Act 1988, or the variation or revocation of those guidelines;\n (d) the issue, variation or revocation of rules under:\n (i) section 17 of the Privacy Act 1988; or\n (ii) section 12 of the Data‑matching Program (Assistance and Tax) Act 1990; or\n (iii) section 135AA of the National Health Act 1953;\n (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 28B(1)(c) of the Privacy Act 1988;\n (g) advising the Minister whether an exclusion from the application of Division 3 of Part VIIC 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 85ZZ(1)(b) of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n## Part 3—Appointments and staffing for the Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 13 Guide to this Part\n\nThis Division provides for:\n\n(a) the appointment of the information officers; and\n\n(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.\n\nThe Information Commissioner may engage consultants.\n\nThe 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.\n\n### Division 2—The information officers\n\n#### 14 Appointment\n\n Appointment of the Australian Information Commissioner\n (1) The Australian Information Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The Australian Information Commissioner is referred to in this and other Acts as the Information Commissioner (see sections 3 and 3A).\n\n Appointment of the Freedom of Information Commissioner\n (2) The Freedom of Information Commissioner is to be appointed by the Governor‑General by written instrument.\n (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.\n Appointment of the Privacy Commissioner\n (4) The Privacy Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The information officers are all eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.\n\n#### 15 General terms and conditions of appointment\n\n (1) An information officer holds office for the period specified in the information officer’s instrument of appointment. The period must not exceed 5 years.\n (2) An information officer holds office on a full‑time basis.\n (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 Governor‑General.\n\n#### 16 Restriction on outside employment\n\n An information officer must not engage in paid employment outside the duties of his or her office without the Minister’s approval.\n\n#### 17 Remuneration\n\n (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.\n (2) An information officer is to be paid the allowances that are prescribed by the regulations.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 18 Leave of absence\n\n (1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n (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.\n\n#### 19 Resignation\n\n (1) An information officer may resign his or her appointment by giving the Governor‑General a written resignation.\n (2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.\n\n#### 20 Termination of appointment\n\n (1) The Governor‑General may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.\n (2) The Governor‑General must terminate the appointment of an information officer if any of the following apply:\n (a) the information officer:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with his or her creditors; or\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;\n (b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n (c) the information officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;\n (d) the information officer fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n#### 21 Acting appointments\n\n (1) The Minister may, by written instrument, appoint a person to act as an information officer:\n (a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the information officer:\n (i) is absent from duty or from Australia; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (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.\n\n#### 22 Disclosure of interests\n\n (1) A disclosure by an information officer under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the information officer is taken not to have complied with section 29 of that Act if he or she does not comply with subsection (1) of this section.\n\n### Division 3—Staff, consultants and delegations\n\n#### 23 Staff\n\n The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.\n\n#### 24 Consultants\n\n (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 section 10).\n (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.\n\n#### 25 Delegation by the Information Commissioner\n\n (1) Subject to subsection (2), 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:\n (a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);\n (b) preparing the report mentioned in section 30;\n (c) issuing guidelines as mentioned in paragraph 8(e);\n (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);\n (f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);\n (i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);\n (j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);\n (k) issuing rules under section 17 of the Privacy Act 1988.\n (2) The Information Commissioner may only delegate the following functions or powers to a member of staff of the Office of the Australian Information Commissioner who is an SES employee, or an acting SES employee, or who holds, or is acting in, a position that is equivalent to, or higher than, a position occupied by an SES employee:\n (a) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);\n (b) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);\n (c) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);\n (d) making determinations for the purposes of section 52 of the Privacy Act 1988.\n\n## Part 4—Information Advisory Committee\n\n#### 26 Guide to this Part\n\nThis Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.\n\n#### 27 Establishment and functions\n\n (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.\n (2) The Committee consists of the following persons:\n (a) the Information Commissioner, as Chair;\n (b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;\n (c) such other persons as the Minister thinks fit and who, in the Minister’s opinion, hold suitable qualifications or experience.\n (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.\n (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).\n\n#### 27A Disclosure of interests\n\n Disclosure to Minister\n (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 member’s functions.\n Disclosure to Information Advisory Committee\n (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.\n (3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee member’s knowledge.\n (4) The disclosure must be recorded in the minutes of the meeting of the Committee.\n (5) Unless the Committee otherwise determines, the Committee member:\n (a) must not be present during any deliberation by the Committee on the matter; and\n (b) must not take part in any decision of the Committee with respect to the matter.\n (6) For the purposes of making a determination under subsection (5), the Committee member:\n (a) must not be present during any deliberation of the Committee for the purpose of making the determination; and\n (b) must not take part in making the determination.\n (7) A determination under subsection (5) must be recorded in the minutes of the meeting of the Committee.\n Information Commissioner\n (8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.\n\n> Note: The Information Commissioner, as an information officer, is required to disclose material personal interests to the Minister (see section 22).\n\n## Part 5—Miscellaneous\n\n#### 28 Guide to this Part\n\nThis Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:\n\n(a) an offence for unauthorised dealings with information;\n\n(b) the requirements for annual reports;\n\n(c) immunity from legal suit;\n\n(d) the making of regulations.\n\n#### 29 Unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (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.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) both of the following apply:\n (i) the information was acquired by the person in the course of performing an information commissioner function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing an information commissioner function or exercising a related power; or\n (aa) both of the following apply:\n (i) the information was acquired by the person in the course of performing a freedom of information function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a freedom of information function or exercising a related power; or\n (ab) both of the following apply:\n (i) the information was acquired by the person in the course of performing a privacy function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a privacy function or exercising a related power; or\n (ac) for information covered by subsection (5)—the person records, discloses or otherwise uses the information in the course of any of the following:\n (i) performing a function described in paragraph 9(1)(b), or exercising a related power;\n (ii) providing information to the Minister or the Department;\n (iii) providing information to the Minister administering Part IVD of the Competition and Consumer Act 2010 or the Department administered by that Minister;\n (iv) providing information to the Australian Competition and Consumer Commission or the Data Recipient Accreditor (within the meaning of that Act); or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information; or\n (d) the person:\n (i) records or otherwise uses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or\n (ii) discloses the information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (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:\n (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;\n (b) produce all or part of a document that contains information of that kind to a court.\n (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.\n (5) This subsection covers information that:\n (a) was acquired in the course of performing a function described in paragraph 9(1)(b) (about the consumer data right), or exercising a related power; or\n (b) could be relevant to either of the following decisions:\n (i) a decision under subsection 56CA(1) (about accreditation for the consumer data right) of the Competition and Consumer Act 2010;\n (ii) a decision under the consumer data rules (within the meaning of that Act) relating to a person’s accreditation under subsection 56CA(1) of that Act.\n (6) In this Act:\n\n> IGIS official means:\n\n (a) the Inspector‑General of Intelligence and Security; or\n (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.\n\n#### 30 Annual report\n\n The annual report prepared by the Information Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include:\n (a) the freedom of information matters (see section 31); and\n (b) the privacy matters (see section 32); and\n (c) the consumer data right matters (see section 32A).\n\n#### 31 Definition of the freedom of information matters\n\n (1) The freedom of information matters are as follows:\n (a) information about any guidelines mentioned in paragraph 8(e) issued during the year and the matters to which those guidelines relate;\n (b) the number of requests under the Freedom of Information Act 1982 to which subsection (2) applies;\n (c) the number of applications under section 48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;\n (d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;\n (e) the number of applications made under Part VI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;\n (f) the number of applications made under Part VII 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;\n (g) the number of applications made under Part VIIA of the Freedom of Information Act 1982 during the year to the Administrative Review Tribunal for the review of decisions, and particulars of the results of those reviews;\n (h) the number of complaints made under Part VIIB 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;\n (i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agency’s obligations under the Freedom of Information Act 1982.\n (2) This subsection applies to a request if, during the year:\n (a) the request was received under section 15 of the Freedom of Information Act 1982; or\n (b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or\n (c) access to the document (or all of the documents) to which the request relates was refused; or\n (d) partial access to the document (or documents) to which the request relates was granted.\n (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:\n (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;\n (b) the request related to 2 or more documents and access was refused to one or more of the documents.\n\n#### 32 Definition of the privacy matters\n\n (1) The privacy matters are as follows:\n (a) a statement of the performance during the year of the privacy functions conferred by section 17 and paragraph 28A(1)(d) of the Privacy Act 1988;\n (b) a statement about the operation of registered APP codes under the Privacy Act 1988 that contain procedures covered by subsection (2), including details about the number of complaints made during the year under codes, their nature and outcome;\n (c) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 during the year;\n (d) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 in relation to which the Commissioner has decided during the year under section 41 of that Act not to investigate, or not to investigate further, and the relevant grounds for the decision.\n (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.\n\n#### 32A Definition of the consumer data right matters\n\n The consumer data right matters are a statement of the performance of the functions conferred as described in paragraph 9(1)(b).\n\n#### 33 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken.\n (2) The review must:\n (a) start 2 years after the commencement of this section; and\n (b) be completed within 6 months.\n (3) The Minister must cause a written report about the review to be prepared.\n (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.\n\n#### 34 Privileges and immunities of the Crown\n\n The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.\n\n#### 35 Information officer etc. not to be sued\n\n (1) This section applies to a person if:\n (a) the person is an information officer; or\n (b) the person is acting under the direction or authority of an information officer.\n (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.\n\n#### 36 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) required or permitted by this Act to be prescribed; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":8},{"sectionNumber":"5","sectionType":"section","heading":"Establishment","content":"#### 5 Establishment\n\n (1) The Office of the Australian Information Commissioner is established by this section.\n (2) The Office of the Australian Information Commissioner consists of:\n (a) the information officers; and\n (b) the staff mentioned in Part 3.\n (3) For the purposes of the Public Service Act 1999:\n (a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and\n (b) the Information Commissioner is the Head of that Statutory Agency.\n\n> Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).\n\n (4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n (a) the Office of the Australian Information Commissioner is a listed entity; and\n (b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and\n (c) the following persons are officials of the Office of the Australian Information Commissioner:\n (i) the information officers;\n (ii) the staff mentioned in Part 3;\n (iii) consultants engaged under section 24; and\n (d) the purposes of the Office of the Australian Information Commissioner include:\n (i) the functions of the Information Commissioner referred to in section 10; and\n (ii) the functions of the Freedom of Information Commissioner referred to in section 11; and\n (iii) the functions of the Privacy Commissioner referred to in section 12.","sortOrder":9},{"sectionNumber":"6","sectionType":"section","heading":"Definition of information officers","content":"#### 6 Definition of information officers\n\n Each of the following is an information officer:\n (a) the Information Commissioner;\n (b) the Freedom of Information Commissioner;\n (c) the Privacy Commissioner.","sortOrder":10},{"sectionNumber":"Division 3","sectionType":"division","heading":"Functions and powers of the information officers","content":"An Act to establish the Office of the Australian Information Commissioner, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act may be cited as the Australian Information Commissioner Act 2010.\n\n#### 2 Commencement\n\n (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.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

31 May 2010

2. Sections 3 to 36

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

1 November 2010

(see F2010L01547)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (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.\n\n#### 3 Definitions\n\n In this Act:\n\n> agency has the meaning given by the Freedom of Information Act 1982.\n\n> consumer data right matters has the meaning given by section 32A.\n\n> Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.\n\n> freedom of information functions has the meaning given by section 8.\n\n> freedom of information matters has the meaning given by subsection 31(1).\n\n> IGIS official has the meaning given by subsection 29(6).\n\n> Information Commissioner has the meaning given by section 3A.\n\n> information commissioner functions has the meaning given by section 7.\n\n> information officer has the meaning given by section 6.\n\n> partial access has a meaning affected by subsection 31(3).\n\n> Privacy Commissioner means the person appointed under section 14 as the Privacy Commissioner.\n\n> privacy functions has the meaning given by section 9.\n\n> privacy matters has the meaning given by section 32.\n\n#### 3A Meaning of Information Commissioner in any Act\n\n In any Act:\n\n> Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.\n\n## Part 2—Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 4 Guide to this Part\n\nThis Part establishes the Office of the Australian Information Commissioner.\n\nThe Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.\n\nThe 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).\n\nThe functions of the Office are as follows:\n\n(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);\n\n(b) the privacy functions, which are mainly about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);\n\n(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.\n\nAll of the information officers may perform the freedom of information functions and the privacy functions.\n\nOnly the Information Commissioner can perform the information commissioner functions.\n\n### Division 2—Establishment\n\n#### 5 Establishment\n\n (1) The Office of the Australian Information Commissioner is established by this section.\n (2) The Office of the Australian Information Commissioner consists of:\n (a) the information officers; and\n (b) the staff mentioned in Part 3.\n (3) For the purposes of the Public Service Act 1999:\n (a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and\n (b) the Information Commissioner is the Head of that Statutory Agency.\n\n> Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).\n\n (4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n (a) the Office of the Australian Information Commissioner is a listed entity; and\n (b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and\n (c) the following persons are officials of the Office of the Australian Information Commissioner:\n (i) the information officers;\n (ii) the staff mentioned in Part 3;\n (iii) consultants engaged under section 24; and\n (d) the purposes of the Office of the Australian Information Commissioner include:\n (i) the functions of the Information Commissioner referred to in section 10; and\n (ii) the functions of the Freedom of Information Commissioner referred to in section 11; and\n (iii) the functions of the Privacy Commissioner referred to in section 12.\n\n#### 6 Definition of information officers\n\n Each of the following is an information officer:\n (a) the Information Commissioner;\n (b) the Freedom of Information Commissioner;\n (c) the Privacy Commissioner.\n\n### Division 3—Functions and powers of the information officers\n\n#### 7 Definition of information commissioner functions\n\n The information commissioner functions are as follows:\n (a) to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:\n (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and\n (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);\n (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.\n\n#### 8 Definition of freedom of information functions\n\n The freedom of information functions are as follows:\n (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);\n (b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;\n (c) the functions conferred by section 8F of the Freedom of Information Act 1982;\n (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;\n (e) issuing guidelines under section 93A of the Freedom of Information Act 1982;\n (f) making reports and recommendations to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act;\n (g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;\n (h) reviewing decisions under Part VII of the Freedom of Information Act 1982;\n (i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;\n (j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;\n (k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;\n (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.\n\n#### 9 Definition of privacy functions\n\n (1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if:\n (a) the functions:\n (i) relate to the privacy of an individual; and\n (ii) are not freedom of information functions; or\n (b) the functions are conferred by:\n (i) Part IVD (about the consumer data right) of the Competition and Consumer Act 2010; or\n (ii) an instrument made under that Part; or\n (iii) another Act because of that Part.\n (2) The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.\n\n```html\n

Provisions that confer privacy functions

Item

Legislation

Provision

1

Privacy Act 1988

Division 2 of Part IV

2

Crimes Act 1914

Division 5 of Part VIIC

3

Data‑matching Program (Assistance and Tax) Act 1990

Sections 12 to 14

4

National Health Act 1953

Section 135AA

5

Telecommunications Act 1997

Section 309

\n```\n\n#### 10 Functions and powers of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n (a) the information commissioner functions;\n (b) the freedom of information functions;\n (c) the privacy functions.\n (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.\n\n#### 11 Functions and powers of the Freedom of Information Commissioner\n\n (1) The Freedom of Information Commissioner has the freedom of information functions.\n (2) The Freedom of Information Commissioner may also perform the privacy functions.\n (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.\n (4) However, the following actions may only be taken with the approval of the Information Commissioner:\n (a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);\n (b) the making of a report or recommendation under paragraph 8(f) to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n#### 12 Functions and powers of the Privacy Commissioner\n\n (1) The Privacy Commissioner has the privacy functions.\n (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)).\n (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.\n (4) However, the following actions may only be undertaken with the approval of the Information Commissioner:\n (a) performing the functions, and exercising the powers, conferred on the Commissioner by Part IIIB of the Privacy Act 1988;\n (c) the making of guidelines under paragraph 28(1)(a) or (b) of the Privacy Act 1988, or the variation or revocation of those guidelines;\n (d) the issue, variation or revocation of rules under:\n (i) section 17 of the Privacy Act 1988; or\n (ii) section 12 of the Data‑matching Program (Assistance and Tax) Act 1990; or\n (iii) section 135AA of the National Health Act 1953;\n (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 28B(1)(c) of the Privacy Act 1988;\n (g) advising the Minister whether an exclusion from the application of Division 3 of Part VIIC 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 85ZZ(1)(b) of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n## Part 3—Appointments and staffing for the Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 13 Guide to this Part\n\nThis Division provides for:\n\n(a) the appointment of the information officers; and\n\n(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.\n\nThe Information Commissioner may engage consultants.\n\nThe 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.\n\n### Division 2—The information officers\n\n#### 14 Appointment\n\n Appointment of the Australian Information Commissioner\n (1) The Australian Information Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The Australian Information Commissioner is referred to in this and other Acts as the Information Commissioner (see sections 3 and 3A).\n\n Appointment of the Freedom of Information Commissioner\n (2) The Freedom of Information Commissioner is to be appointed by the Governor‑General by written instrument.\n (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.\n Appointment of the Privacy Commissioner\n (4) The Privacy Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The information officers are all eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.\n\n#### 15 General terms and conditions of appointment\n\n (1) An information officer holds office for the period specified in the information officer’s instrument of appointment. The period must not exceed 5 years.\n (2) An information officer holds office on a full‑time basis.\n (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 Governor‑General.\n\n#### 16 Restriction on outside employment\n\n An information officer must not engage in paid employment outside the duties of his or her office without the Minister’s approval.\n\n#### 17 Remuneration\n\n (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.\n (2) An information officer is to be paid the allowances that are prescribed by the regulations.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 18 Leave of absence\n\n (1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n (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.\n\n#### 19 Resignation\n\n (1) An information officer may resign his or her appointment by giving the Governor‑General a written resignation.\n (2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.\n\n#### 20 Termination of appointment\n\n (1) The Governor‑General may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.\n (2) The Governor‑General must terminate the appointment of an information officer if any of the following apply:\n (a) the information officer:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with his or her creditors; or\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;\n (b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n (c) the information officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;\n (d) the information officer fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n#### 21 Acting appointments\n\n (1) The Minister may, by written instrument, appoint a person to act as an information officer:\n (a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the information officer:\n (i) is absent from duty or from Australia; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (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.\n\n#### 22 Disclosure of interests\n\n (1) A disclosure by an information officer under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the information officer is taken not to have complied with section 29 of that Act if he or she does not comply with subsection (1) of this section.\n\n### Division 3—Staff, consultants and delegations\n\n#### 23 Staff\n\n The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.\n\n#### 24 Consultants\n\n (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 section 10).\n (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.\n\n#### 25 Delegation by the Information Commissioner\n\n (1) Subject to subsection (2), 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:\n (a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);\n (b) preparing the report mentioned in section 30;\n (c) issuing guidelines as mentioned in paragraph 8(e);\n (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);\n (f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);\n (i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);\n (j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);\n (k) issuing rules under section 17 of the Privacy Act 1988.\n (2) The Information Commissioner may only delegate the following functions or powers to a member of staff of the Office of the Australian Information Commissioner who is an SES employee, or an acting SES employee, or who holds, or is acting in, a position that is equivalent to, or higher than, a position occupied by an SES employee:\n (a) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);\n (b) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);\n (c) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);\n (d) making determinations for the purposes of section 52 of the Privacy Act 1988.\n\n## Part 4—Information Advisory Committee\n\n#### 26 Guide to this Part\n\nThis Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.\n\n#### 27 Establishment and functions\n\n (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.\n (2) The Committee consists of the following persons:\n (a) the Information Commissioner, as Chair;\n (b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;\n (c) such other persons as the Minister thinks fit and who, in the Minister’s opinion, hold suitable qualifications or experience.\n (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.\n (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).\n\n#### 27A Disclosure of interests\n\n Disclosure to Minister\n (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 member’s functions.\n Disclosure to Information Advisory Committee\n (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.\n (3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee member’s knowledge.\n (4) The disclosure must be recorded in the minutes of the meeting of the Committee.\n (5) Unless the Committee otherwise determines, the Committee member:\n (a) must not be present during any deliberation by the Committee on the matter; and\n (b) must not take part in any decision of the Committee with respect to the matter.\n (6) For the purposes of making a determination under subsection (5), the Committee member:\n (a) must not be present during any deliberation of the Committee for the purpose of making the determination; and\n (b) must not take part in making the determination.\n (7) A determination under subsection (5) must be recorded in the minutes of the meeting of the Committee.\n Information Commissioner\n (8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.\n\n> Note: The Information Commissioner, as an information officer, is required to disclose material personal interests to the Minister (see section 22).\n\n## Part 5—Miscellaneous\n\n#### 28 Guide to this Part\n\nThis Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:\n\n(a) an offence for unauthorised dealings with information;\n\n(b) the requirements for annual reports;\n\n(c) immunity from legal suit;\n\n(d) the making of regulations.\n\n#### 29 Unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (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.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) both of the following apply:\n (i) the information was acquired by the person in the course of performing an information commissioner function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing an information commissioner function or exercising a related power; or\n (aa) both of the following apply:\n (i) the information was acquired by the person in the course of performing a freedom of information function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a freedom of information function or exercising a related power; or\n (ab) both of the following apply:\n (i) the information was acquired by the person in the course of performing a privacy function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a privacy function or exercising a related power; or\n (ac) for information covered by subsection (5)—the person records, discloses or otherwise uses the information in the course of any of the following:\n (i) performing a function described in paragraph 9(1)(b), or exercising a related power;\n (ii) providing information to the Minister or the Department;\n (iii) providing information to the Minister administering Part IVD of the Competition and Consumer Act 2010 or the Department administered by that Minister;\n (iv) providing information to the Australian Competition and Consumer Commission or the Data Recipient Accreditor (within the meaning of that Act); or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information; or\n (d) the person:\n (i) records or otherwise uses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or\n (ii) discloses the information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (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:\n (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;\n (b) produce all or part of a document that contains information of that kind to a court.\n (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.\n (5) This subsection covers information that:\n (a) was acquired in the course of performing a function described in paragraph 9(1)(b) (about the consumer data right), or exercising a related power; or\n (b) could be relevant to either of the following decisions:\n (i) a decision under subsection 56CA(1) (about accreditation for the consumer data right) of the Competition and Consumer Act 2010;\n (ii) a decision under the consumer data rules (within the meaning of that Act) relating to a person’s accreditation under subsection 56CA(1) of that Act.\n (6) In this Act:\n\n> IGIS official means:\n\n (a) the Inspector‑General of Intelligence and Security; or\n (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.\n\n#### 30 Annual report\n\n The annual report prepared by the Information Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include:\n (a) the freedom of information matters (see section 31); and\n (b) the privacy matters (see section 32); and\n (c) the consumer data right matters (see section 32A).\n\n#### 31 Definition of the freedom of information matters\n\n (1) The freedom of information matters are as follows:\n (a) information about any guidelines mentioned in paragraph 8(e) issued during the year and the matters to which those guidelines relate;\n (b) the number of requests under the Freedom of Information Act 1982 to which subsection (2) applies;\n (c) the number of applications under section 48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;\n (d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;\n (e) the number of applications made under Part VI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;\n (f) the number of applications made under Part VII 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;\n (g) the number of applications made under Part VIIA of the Freedom of Information Act 1982 during the year to the Administrative Review Tribunal for the review of decisions, and particulars of the results of those reviews;\n (h) the number of complaints made under Part VIIB 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;\n (i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agency’s obligations under the Freedom of Information Act 1982.\n (2) This subsection applies to a request if, during the year:\n (a) the request was received under section 15 of the Freedom of Information Act 1982; or\n (b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or\n (c) access to the document (or all of the documents) to which the request relates was refused; or\n (d) partial access to the document (or documents) to which the request relates was granted.\n (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:\n (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;\n (b) the request related to 2 or more documents and access was refused to one or more of the documents.\n\n#### 32 Definition of the privacy matters\n\n (1) The privacy matters are as follows:\n (a) a statement of the performance during the year of the privacy functions conferred by section 17 and paragraph 28A(1)(d) of the Privacy Act 1988;\n (b) a statement about the operation of registered APP codes under the Privacy Act 1988 that contain procedures covered by subsection (2), including details about the number of complaints made during the year under codes, their nature and outcome;\n (c) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 during the year;\n (d) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 in relation to which the Commissioner has decided during the year under section 41 of that Act not to investigate, or not to investigate further, and the relevant grounds for the decision.\n (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.\n\n#### 32A Definition of the consumer data right matters\n\n The consumer data right matters are a statement of the performance of the functions conferred as described in paragraph 9(1)(b).\n\n#### 33 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken.\n (2) The review must:\n (a) start 2 years after the commencement of this section; and\n (b) be completed within 6 months.\n (3) The Minister must cause a written report about the review to be prepared.\n (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.\n\n#### 34 Privileges and immunities of the Crown\n\n The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.\n\n#### 35 Information officer etc. not to be sued\n\n (1) This section applies to a person if:\n (a) the person is an information officer; or\n (b) the person is acting under the direction or authority of an information officer.\n (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.\n\n#### 36 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) required or permitted by this Act to be prescribed; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":11},{"sectionNumber":"7","sectionType":"section","heading":"Definition of information commissioner functions","content":"#### 7 Definition of information commissioner functions\n\n The information commissioner functions are as follows:\n (a) to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:\n (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and\n (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);\n (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.","sortOrder":12},{"sectionNumber":"8","sectionType":"section","heading":"Definition of freedom of information functions","content":"#### 8 Definition of freedom of information functions\n\n The freedom of information functions are as follows:\n (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);\n (b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;\n (c) the functions conferred by section 8F of the Freedom of Information Act 1982;\n (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;\n (e) issuing guidelines under section 93A of the Freedom of Information Act 1982;\n (f) making reports and recommendations to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act;\n (g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;\n (h) reviewing decisions under Part VII of the Freedom of Information Act 1982;\n (i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;\n (j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;\n (k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;\n (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.","sortOrder":13},{"sectionNumber":"9","sectionType":"section","heading":"Definition of privacy functions","content":"#### 9 Definition of privacy functions\n\n (1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if:\n (a) the functions:\n (i) relate to the privacy of an individual; and\n (ii) are not freedom of information functions; or\n (b) the functions are conferred by:\n (i) Part IVD (about the consumer data right) of the Competition and Consumer Act 2010; or\n (ii) an instrument made under that Part; or\n (iii) another Act because of that Part.\n (2) The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.\n\n```html\n

Provisions that confer privacy functions

Item

Legislation

Provision

1

Privacy Act 1988

Division 2 of Part IV

2

Crimes Act 1914

Division 5 of Part VIIC

3

Data‑matching Program (Assistance and Tax) Act 1990

Sections 12 to 14

4

National Health Act 1953

Section 135AA

5

Telecommunications Act 1997

Section 309

\n```","sortOrder":14},{"sectionNumber":"10","sectionType":"section","heading":"Functions and powers of the Information Commissioner","content":"#### 10 Functions and powers of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n (a) the information commissioner functions;\n (b) the freedom of information functions;\n (c) the privacy functions.\n (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.","sortOrder":15},{"sectionNumber":"11","sectionType":"section","heading":"Functions and powers of the Freedom of Information Commissioner","content":"#### 11 Functions and powers of the Freedom of Information Commissioner\n\n (1) The Freedom of Information Commissioner has the freedom of information functions.\n (2) The Freedom of Information Commissioner may also perform the privacy functions.\n (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.\n (4) However, the following actions may only be taken with the approval of the Information Commissioner:\n (a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);\n (b) the making of a report or recommendation under paragraph 8(f) to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).","sortOrder":16},{"sectionNumber":"12","sectionType":"section","heading":"Functions and powers of the Privacy Commissioner","content":"#### 12 Functions and powers of the Privacy Commissioner\n\n (1) The Privacy Commissioner has the privacy functions.\n (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)).\n (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.\n (4) However, the following actions may only be undertaken with the approval of the Information Commissioner:\n (a) performing the functions, and exercising the powers, conferred on the Commissioner by Part IIIB of the Privacy Act 1988;\n (c) the making of guidelines under paragraph 28(1)(a) or (b) of the Privacy Act 1988, or the variation or revocation of those guidelines;\n (d) the issue, variation or revocation of rules under:\n (i) section 17 of the Privacy Act 1988; or\n (ii) section 12 of the Data‑matching Program (Assistance and Tax) Act 1990; or\n (iii) section 135AA of the National Health Act 1953;\n (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 28B(1)(c) of the Privacy Act 1988;\n (g) advising the Minister whether an exclusion from the application of Division 3 of Part VIIC 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 85ZZ(1)(b) of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).","sortOrder":17},{"sectionNumber":"Part 3","sectionType":"part","heading":"Appointments and staffing for the Office of the Australian Information Commissioner","content":"An Act to establish the Office of the Australian Information Commissioner, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act may be cited as the Australian Information Commissioner Act 2010.\n\n#### 2 Commencement\n\n (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.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

31 May 2010

2. Sections 3 to 36

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

1 November 2010

(see F2010L01547)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (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.\n\n#### 3 Definitions\n\n In this Act:\n\n> agency has the meaning given by the Freedom of Information Act 1982.\n\n> consumer data right matters has the meaning given by section 32A.\n\n> Freedom of Information Commissioner means the person appointed under section 14 as the Freedom of Information Commissioner.\n\n> freedom of information functions has the meaning given by section 8.\n\n> freedom of information matters has the meaning given by subsection 31(1).\n\n> IGIS official has the meaning given by subsection 29(6).\n\n> Information Commissioner has the meaning given by section 3A.\n\n> information commissioner functions has the meaning given by section 7.\n\n> information officer has the meaning given by section 6.\n\n> partial access has a meaning affected by subsection 31(3).\n\n> Privacy Commissioner means the person appointed under section 14 as the Privacy Commissioner.\n\n> privacy functions has the meaning given by section 9.\n\n> privacy matters has the meaning given by section 32.\n\n#### 3A Meaning of Information Commissioner in any Act\n\n In any Act:\n\n> Information Commissioner means the person appointed under section 14 of this Act as the Australian Information Commissioner.\n\n## Part 2—Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 4 Guide to this Part\n\nThis Part establishes the Office of the Australian Information Commissioner.\n\nThe Office of the Australian Information Commissioner consists of the information officers and the staff of the Office.\n\nThe 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).\n\nThe functions of the Office are as follows:\n\n(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);\n\n(b) the privacy functions, which are mainly about protecting the privacy of individuals in accordance with the Privacy Act 1988 (and other Acts);\n\n(c) the information commissioner functions, which are strategic functions concerning information management by the Commonwealth Government.\n\nAll of the information officers may perform the freedom of information functions and the privacy functions.\n\nOnly the Information Commissioner can perform the information commissioner functions.\n\n### Division 2—Establishment\n\n#### 5 Establishment\n\n (1) The Office of the Australian Information Commissioner is established by this section.\n (2) The Office of the Australian Information Commissioner consists of:\n (a) the information officers; and\n (b) the staff mentioned in Part 3.\n (3) For the purposes of the Public Service Act 1999:\n (a) the information officers and staff of the Office of the Australian Information Commissioner together constitute a Statutory Agency; and\n (b) the Information Commissioner is the Head of that Statutory Agency.\n\n> Note: The Information Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).\n\n (4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n (a) the Office of the Australian Information Commissioner is a listed entity; and\n (b) the Information Commissioner is the accountable authority of the Office of the Australian Information Commissioner; and\n (c) the following persons are officials of the Office of the Australian Information Commissioner:\n (i) the information officers;\n (ii) the staff mentioned in Part 3;\n (iii) consultants engaged under section 24; and\n (d) the purposes of the Office of the Australian Information Commissioner include:\n (i) the functions of the Information Commissioner referred to in section 10; and\n (ii) the functions of the Freedom of Information Commissioner referred to in section 11; and\n (iii) the functions of the Privacy Commissioner referred to in section 12.\n\n#### 6 Definition of information officers\n\n Each of the following is an information officer:\n (a) the Information Commissioner;\n (b) the Freedom of Information Commissioner;\n (c) the Privacy Commissioner.\n\n### Division 3—Functions and powers of the information officers\n\n#### 7 Definition of information commissioner functions\n\n The information commissioner functions are as follows:\n (a) to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:\n (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and\n (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);\n (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.\n\n#### 8 Definition of freedom of information functions\n\n The freedom of information functions are as follows:\n (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);\n (b) assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;\n (c) the functions conferred by section 8F of the Freedom of Information Act 1982;\n (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;\n (e) issuing guidelines under section 93A of the Freedom of Information Act 1982;\n (f) making reports and recommendations to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act;\n (g) monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;\n (h) reviewing decisions under Part VII of the Freedom of Information Act 1982;\n (i) undertaking investigations under Part VIIB of the Freedom of Information Act 1982;\n (j) collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;\n (k) any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;\n (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.\n\n#### 9 Definition of privacy functions\n\n (1) The privacy functions are functions conferred on the Information Commissioner by an Act (or an instrument under an Act), if:\n (a) the functions:\n (i) relate to the privacy of an individual; and\n (ii) are not freedom of information functions; or\n (b) the functions are conferred by:\n (i) Part IVD (about the consumer data right) of the Competition and Consumer Act 2010; or\n (ii) an instrument made under that Part; or\n (iii) another Act because of that Part.\n (2) The functions mentioned in subsection (1) include, but are not limited to, the provisions in the following table.\n\n```html\n

Provisions that confer privacy functions

Item

Legislation

Provision

1

Privacy Act 1988

Division 2 of Part IV

2

Crimes Act 1914

Division 5 of Part VIIC

3

Data‑matching Program (Assistance and Tax) Act 1990

Sections 12 to 14

4

National Health Act 1953

Section 135AA

5

Telecommunications Act 1997

Section 309

\n```\n\n#### 10 Functions and powers of the Information Commissioner\n\n (1) The Information Commissioner has the following functions:\n (a) the information commissioner functions;\n (b) the freedom of information functions;\n (c) the privacy functions.\n (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.\n\n#### 11 Functions and powers of the Freedom of Information Commissioner\n\n (1) The Freedom of Information Commissioner has the freedom of information functions.\n (2) The Freedom of Information Commissioner may also perform the privacy functions.\n (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.\n (4) However, the following actions may only be taken with the approval of the Information Commissioner:\n (a) the issue, variation or revocation of a guideline mentioned in paragraph 8(e);\n (b) the making of a report or recommendation under paragraph 8(f) to the Minister about:\n (i) proposals for legislative change to the Freedom of Information Act 1982; or\n (ii) administrative action necessary or desirable in relation to the operation of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n#### 12 Functions and powers of the Privacy Commissioner\n\n (1) The Privacy Commissioner has the privacy functions.\n (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)).\n (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.\n (4) However, the following actions may only be undertaken with the approval of the Information Commissioner:\n (a) performing the functions, and exercising the powers, conferred on the Commissioner by Part IIIB of the Privacy Act 1988;\n (c) the making of guidelines under paragraph 28(1)(a) or (b) of the Privacy Act 1988, or the variation or revocation of those guidelines;\n (d) the issue, variation or revocation of rules under:\n (i) section 17 of the Privacy Act 1988; or\n (ii) section 12 of the Data‑matching Program (Assistance and Tax) Act 1990; or\n (iii) section 135AA of the National Health Act 1953;\n (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 28B(1)(c) of the Privacy Act 1988;\n (g) advising the Minister whether an exclusion from the application of Division 3 of Part VIIC 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 85ZZ(1)(b) of that Act.\n (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:\n (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\n (b) the function or power is taken to have been performed or exercised by the Information Commissioner; and\n (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).\n\n## Part 3—Appointments and staffing for the Office of the Australian Information Commissioner\n\n### Division 1—Introduction\n\n#### 13 Guide to this Part\n\nThis Division provides for:\n\n(a) the appointment of the information officers; and\n\n(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.\n\nThe Information Commissioner may engage consultants.\n\nThe 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.\n\n### Division 2—The information officers\n\n#### 14 Appointment\n\n Appointment of the Australian Information Commissioner\n (1) The Australian Information Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The Australian Information Commissioner is referred to in this and other Acts as the Information Commissioner (see sections 3 and 3A).\n\n Appointment of the Freedom of Information Commissioner\n (2) The Freedom of Information Commissioner is to be appointed by the Governor‑General by written instrument.\n (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.\n Appointment of the Privacy Commissioner\n (4) The Privacy Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The information officers are all eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.\n\n#### 15 General terms and conditions of appointment\n\n (1) An information officer holds office for the period specified in the information officer’s instrument of appointment. The period must not exceed 5 years.\n (2) An information officer holds office on a full‑time basis.\n (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 Governor‑General.\n\n#### 16 Restriction on outside employment\n\n An information officer must not engage in paid employment outside the duties of his or her office without the Minister’s approval.\n\n#### 17 Remuneration\n\n (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.\n (2) An information officer is to be paid the allowances that are prescribed by the regulations.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 18 Leave of absence\n\n (1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n (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.\n\n#### 19 Resignation\n\n (1) An information officer may resign his or her appointment by giving the Governor‑General a written resignation.\n (2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.\n\n#### 20 Termination of appointment\n\n (1) The Governor‑General may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.\n (2) The Governor‑General must terminate the appointment of an information officer if any of the following apply:\n (a) the information officer:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with his or her creditors; or\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;\n (b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n (c) the information officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;\n (d) the information officer fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n#### 21 Acting appointments\n\n (1) The Minister may, by written instrument, appoint a person to act as an information officer:\n (a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the information officer:\n (i) is absent from duty or from Australia; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (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.\n\n#### 22 Disclosure of interests\n\n (1) A disclosure by an information officer under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the information officer is taken not to have complied with section 29 of that Act if he or she does not comply with subsection (1) of this section.\n\n### Division 3—Staff, consultants and delegations\n\n#### 23 Staff\n\n The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.\n\n#### 24 Consultants\n\n (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 section 10).\n (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.\n\n#### 25 Delegation by the Information Commissioner\n\n (1) Subject to subsection (2), 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:\n (a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);\n (b) preparing the report mentioned in section 30;\n (c) issuing guidelines as mentioned in paragraph 8(e);\n (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);\n (f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);\n (i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);\n (j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);\n (k) issuing rules under section 17 of the Privacy Act 1988.\n (2) The Information Commissioner may only delegate the following functions or powers to a member of staff of the Office of the Australian Information Commissioner who is an SES employee, or an acting SES employee, or who holds, or is acting in, a position that is equivalent to, or higher than, a position occupied by an SES employee:\n (a) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);\n (b) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);\n (c) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);\n (d) making determinations for the purposes of section 52 of the Privacy Act 1988.\n\n## Part 4—Information Advisory Committee\n\n#### 26 Guide to this Part\n\nThis Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.\n\n#### 27 Establishment and functions\n\n (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.\n (2) The Committee consists of the following persons:\n (a) the Information Commissioner, as Chair;\n (b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;\n (c) such other persons as the Minister thinks fit and who, in the Minister’s opinion, hold suitable qualifications or experience.\n (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.\n (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).\n\n#### 27A Disclosure of interests\n\n Disclosure to Minister\n (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 member’s functions.\n Disclosure to Information Advisory Committee\n (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.\n (3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee member’s knowledge.\n (4) The disclosure must be recorded in the minutes of the meeting of the Committee.\n (5) Unless the Committee otherwise determines, the Committee member:\n (a) must not be present during any deliberation by the Committee on the matter; and\n (b) must not take part in any decision of the Committee with respect to the matter.\n (6) For the purposes of making a determination under subsection (5), the Committee member:\n (a) must not be present during any deliberation of the Committee for the purpose of making the determination; and\n (b) must not take part in making the determination.\n (7) A determination under subsection (5) must be recorded in the minutes of the meeting of the Committee.\n Information Commissioner\n (8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.\n\n> Note: The Information Commissioner, as an information officer, is required to disclose material personal interests to the Minister (see section 22).\n\n## Part 5—Miscellaneous\n\n#### 28 Guide to this Part\n\nThis Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:\n\n(a) an offence for unauthorised dealings with information;\n\n(b) the requirements for annual reports;\n\n(c) immunity from legal suit;\n\n(d) the making of regulations.\n\n#### 29 Unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (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.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) both of the following apply:\n (i) the information was acquired by the person in the course of performing an information commissioner function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing an information commissioner function or exercising a related power; or\n (aa) both of the following apply:\n (i) the information was acquired by the person in the course of performing a freedom of information function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a freedom of information function or exercising a related power; or\n (ab) both of the following apply:\n (i) the information was acquired by the person in the course of performing a privacy function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a privacy function or exercising a related power; or\n (ac) for information covered by subsection (5)—the person records, discloses or otherwise uses the information in the course of any of the following:\n (i) performing a function described in paragraph 9(1)(b), or exercising a related power;\n (ii) providing information to the Minister or the Department;\n (iii) providing information to the Minister administering Part IVD of the Competition and Consumer Act 2010 or the Department administered by that Minister;\n (iv) providing information to the Australian Competition and Consumer Commission or the Data Recipient Accreditor (within the meaning of that Act); or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information; or\n (d) the person:\n (i) records or otherwise uses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or\n (ii) discloses the information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (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:\n (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;\n (b) produce all or part of a document that contains information of that kind to a court.\n (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.\n (5) This subsection covers information that:\n (a) was acquired in the course of performing a function described in paragraph 9(1)(b) (about the consumer data right), or exercising a related power; or\n (b) could be relevant to either of the following decisions:\n (i) a decision under subsection 56CA(1) (about accreditation for the consumer data right) of the Competition and Consumer Act 2010;\n (ii) a decision under the consumer data rules (within the meaning of that Act) relating to a person’s accreditation under subsection 56CA(1) of that Act.\n (6) In this Act:\n\n> IGIS official means:\n\n (a) the Inspector‑General of Intelligence and Security; or\n (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.\n\n#### 30 Annual report\n\n The annual report prepared by the Information Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include:\n (a) the freedom of information matters (see section 31); and\n (b) the privacy matters (see section 32); and\n (c) the consumer data right matters (see section 32A).\n\n#### 31 Definition of the freedom of information matters\n\n (1) The freedom of information matters are as follows:\n (a) information about any guidelines mentioned in paragraph 8(e) issued during the year and the matters to which those guidelines relate;\n (b) the number of requests under the Freedom of Information Act 1982 to which subsection (2) applies;\n (c) the number of applications under section 48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;\n (d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;\n (e) the number of applications made under Part VI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;\n (f) the number of applications made under Part VII 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;\n (g) the number of applications made under Part VIIA of the Freedom of Information Act 1982 during the year to the Administrative Review Tribunal for the review of decisions, and particulars of the results of those reviews;\n (h) the number of complaints made under Part VIIB 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;\n (i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agency’s obligations under the Freedom of Information Act 1982.\n (2) This subsection applies to a request if, during the year:\n (a) the request was received under section 15 of the Freedom of Information Act 1982; or\n (b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or\n (c) access to the document (or all of the documents) to which the request relates was refused; or\n (d) partial access to the document (or documents) to which the request relates was granted.\n (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:\n (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;\n (b) the request related to 2 or more documents and access was refused to one or more of the documents.\n\n#### 32 Definition of the privacy matters\n\n (1) The privacy matters are as follows:\n (a) a statement of the performance during the year of the privacy functions conferred by section 17 and paragraph 28A(1)(d) of the Privacy Act 1988;\n (b) a statement about the operation of registered APP codes under the Privacy Act 1988 that contain procedures covered by subsection (2), including details about the number of complaints made during the year under codes, their nature and outcome;\n (c) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 during the year;\n (d) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 in relation to which the Commissioner has decided during the year under section 41 of that Act not to investigate, or not to investigate further, and the relevant grounds for the decision.\n (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.\n\n#### 32A Definition of the consumer data right matters\n\n The consumer data right matters are a statement of the performance of the functions conferred as described in paragraph 9(1)(b).\n\n#### 33 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken.\n (2) The review must:\n (a) start 2 years after the commencement of this section; and\n (b) be completed within 6 months.\n (3) The Minister must cause a written report about the review to be prepared.\n (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.\n\n#### 34 Privileges and immunities of the Crown\n\n The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.\n\n#### 35 Information officer etc. not to be sued\n\n (1) This section applies to a person if:\n (a) the person is an information officer; or\n (b) the person is acting under the direction or authority of an information officer.\n (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.\n\n#### 36 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) required or permitted by this Act to be prescribed; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":18},{"sectionNumber":"13","sectionType":"section","heading":"Guide to this Part","content":"#### 13 Guide to this Part\n\nThis Division provides for:\n\n(a) the appointment of the information officers; and\n\n(b) the staff of the Office of the Australian Information Commissioner, who are engaged under the Public Service Act 1999.\n\nThe Information Commissioner may engage consultants.\n\nThe 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.","sortOrder":20},{"sectionNumber":"14","sectionType":"section","heading":"Appointment","content":"#### 14 Appointment\n\n Appointment of the Australian Information Commissioner\n (1) The Australian Information Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The Australian Information Commissioner is referred to in this and other Acts as the Information Commissioner (see sections 3 and 3A).\n\n Appointment of the Freedom of Information Commissioner\n (2) The Freedom of Information Commissioner is to be appointed by the Governor‑General by written instrument.\n (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.\n Appointment of the Privacy Commissioner\n (4) The Privacy Commissioner is to be appointed by the Governor‑General by written instrument.\n\n> Note: The information officers are all eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.","sortOrder":22},{"sectionNumber":"15","sectionType":"section","heading":"General terms and conditions of appointment","content":"#### 15 General terms and conditions of appointment\n\n (1) An information officer holds office for the period specified in the information officer’s instrument of appointment. The period must not exceed 5 years.\n (2) An information officer holds office on a full‑time basis.\n (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 Governor‑General.","sortOrder":23},{"sectionNumber":"16","sectionType":"section","heading":"Restriction on outside employment","content":"#### 16 Restriction on outside employment\n\n An information officer must not engage in paid employment outside the duties of his or her office without the Minister’s approval.","sortOrder":24},{"sectionNumber":"17","sectionType":"section","heading":"Remuneration","content":"#### 17 Remuneration\n\n (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.\n (2) An information officer is to be paid the allowances that are prescribed by the regulations.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.","sortOrder":25},{"sectionNumber":"18","sectionType":"section","heading":"Leave of absence","content":"#### 18 Leave of absence\n\n (1) An information officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n (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.","sortOrder":26},{"sectionNumber":"19","sectionType":"section","heading":"Resignation","content":"#### 19 Resignation\n\n (1) An information officer may resign his or her appointment by giving the Governor‑General a written resignation.\n (2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.","sortOrder":27},{"sectionNumber":"20","sectionType":"section","heading":"Termination of appointment","content":"#### 20 Termination of appointment\n\n (1) The Governor‑General may terminate the appointment of an information officer for misbehaviour or physical or mental incapacity.\n (2) The Governor‑General must terminate the appointment of an information officer if any of the following apply:\n (a) the information officer:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with his or her creditors; or\n (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors;\n (b) the information officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;\n (c) the information officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;\n (d) the information officer fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.","sortOrder":28},{"sectionNumber":"21","sectionType":"section","heading":"Acting appointments","content":"#### 21 Acting appointments\n\n (1) The Minister may, by written instrument, appoint a person to act as an information officer:\n (a) during a vacancy in the office of the information officer (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the information officer:\n (i) is absent from duty or from Australia; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.\n\n (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.","sortOrder":29},{"sectionNumber":"22","sectionType":"section","heading":"Disclosure of interests","content":"#### 22 Disclosure of interests\n\n (1) A disclosure by an information officer under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the information officer is taken not to have complied with section 29 of that Act if he or she does not comply with subsection (1) of this section.","sortOrder":30},{"sectionNumber":"23","sectionType":"section","heading":"Staff","content":"#### 23 Staff\n\n The staff of the Office of the Australian Information Commissioner must be persons engaged under the Public Service Act 1999.","sortOrder":32},{"sectionNumber":"24","sectionType":"section","heading":"Consultants","content":"#### 24 Consultants\n\n (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 section 10).\n (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.","sortOrder":33},{"sectionNumber":"25","sectionType":"section","heading":"Delegation by the Information Commissioner","content":"#### 25 Delegation by the Information Commissioner\n\n (1) Subject to subsection (2), 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:\n (a) the information commissioner functions conferred by paragraph 7(a) (reporting to the Minister);\n (b) preparing the report mentioned in section 30;\n (c) issuing guidelines as mentioned in paragraph 8(e);\n (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);\n (f) the function conferred by section 55Q of the Freedom of Information Act 1982 (correcting errors in IC review decisions);\n (i) the function conferred by sections 89 and 89A of the Freedom of Information Act 1982 (implementation notices and reports);\n (j) the function conferred by section 89K of the Freedom of Information Act 1982 (making a vexatious applicant declaration);\n (k) issuing rules under section 17 of the Privacy Act 1988.\n (2) The Information Commissioner may only delegate the following functions or powers to a member of staff of the Office of the Australian Information Commissioner who is an SES employee, or an acting SES employee, or who holds, or is acting in, a position that is equivalent to, or higher than, a position occupied by an SES employee:\n (a) the function conferred by section 55K of the Freedom of Information Act 1982 (making a decision on an IC review);\n (b) the function conferred by section 73 of the Freedom of Information Act 1982 (discretion not to investigate a complaint);\n (c) the function conferred by section 86 of the Freedom of Information Act 1982 (obligation to notify on completion of investigation);\n (d) making determinations for the purposes of section 52 of the Privacy Act 1988.","sortOrder":34},{"sectionNumber":"Part 4","sectionType":"part","heading":"Information Advisory Committee","content":"## Part 4—Information Advisory Committee","sortOrder":35},{"sectionNumber":"26","sectionType":"section","heading":"Guide to this Part","content":"#### 26 Guide to this Part\n\nThis Part establishes an Information Advisory Committee to assist and advise the Information Commissioner on matters relating to the performance of the information commissioner functions.","sortOrder":36},{"sectionNumber":"27","sectionType":"section","heading":"Establishment and functions","content":"#### 27 Establishment and functions\n\n (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.\n (2) The Committee consists of the following persons:\n (a) the Information Commissioner, as Chair;\n (b) senior officers of agencies nominated in writing by the Minister, in consultation with the relevant Ministers;\n (c) such other persons as the Minister thinks fit and who, in the Minister’s opinion, hold suitable qualifications or experience.\n (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.\n (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).","sortOrder":37},{"sectionNumber":"27A","sectionType":"section","heading":"Disclosure of interests","content":"#### 27A Disclosure of interests\n\n Disclosure to Minister\n (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 member’s functions.\n Disclosure to Information Advisory Committee\n (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.\n (3) The disclosure must be made as soon as possible after the relevant facts have come to the Committee member’s knowledge.\n (4) The disclosure must be recorded in the minutes of the meeting of the Committee.\n (5) Unless the Committee otherwise determines, the Committee member:\n (a) must not be present during any deliberation by the Committee on the matter; and\n (b) must not take part in any decision of the Committee with respect to the matter.\n (6) For the purposes of making a determination under subsection (5), the Committee member:\n (a) must not be present during any deliberation of the Committee for the purpose of making the determination; and\n (b) must not take part in making the determination.\n (7) A determination under subsection (5) must be recorded in the minutes of the meeting of the Committee.\n Information Commissioner\n (8) This section does not apply in relation to the disclosure of interests by the Information Commissioner.\n\n> Note: The Information Commissioner, as an information officer, is required to disclose material personal interests to the Minister (see section 22).","sortOrder":38},{"sectionNumber":"Part 5","sectionType":"part","heading":"Miscellaneous","content":"## Part 5—Miscellaneous","sortOrder":39},{"sectionNumber":"28","sectionType":"section","heading":"Guide to this Part","content":"#### 28 Guide to this Part\n\nThis Part deals with a number of other matters relevant to the operation of the Office of the Australian Information Commissioner. These are as follows:\n\n(a) an offence for unauthorised dealings with information;\n\n(b) the requirements for annual reports;\n\n(c) immunity from legal suit;\n\n(d) the making of regulations.","sortOrder":40},{"sectionNumber":"29","sectionType":"section","heading":"Unauthorised dealing with information","content":"#### 29 Unauthorised dealing with information\n\n (1) A person commits an offence if:\n (a) the person makes a record of, discloses or otherwise uses information; and\n (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.\n\nPenalty: Imprisonment for 2 years.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n (2) This section does not apply if:\n (a) both of the following apply:\n (i) the information was acquired by the person in the course of performing an information commissioner function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing an information commissioner function or exercising a related power; or\n (aa) both of the following apply:\n (i) the information was acquired by the person in the course of performing a freedom of information function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a freedom of information function or exercising a related power; or\n (ab) both of the following apply:\n (i) the information was acquired by the person in the course of performing a privacy function or exercising a related power;\n (ii) the person records, discloses or otherwise uses the information in the course of performing a privacy function or exercising a related power; or\n (ac) for information covered by subsection (5)—the person records, discloses or otherwise uses the information in the course of any of the following:\n (i) performing a function described in paragraph 9(1)(b), or exercising a related power;\n (ii) providing information to the Minister or the Department;\n (iii) providing information to the Minister administering Part IVD of the Competition and Consumer Act 2010 or the Department administered by that Minister;\n (iv) providing information to the Australian Competition and Consumer Commission or the Data Recipient Accreditor (within the meaning of that Act); or\n (b) the person acquires the information for any other lawful purpose; or\n (c) the person to whom the information relates consents to the recording, disclosure or use of the information; or\n (d) the person:\n (i) records or otherwise uses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or\n (ii) discloses the information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.\n\n> Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (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:\n (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;\n (b) produce all or part of a document that contains information of that kind to a court.\n (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.\n (5) This subsection covers information that:\n (a) was acquired in the course of performing a function described in paragraph 9(1)(b) (about the consumer data right), or exercising a related power; or\n (b) could be relevant to either of the following decisions:\n (i) a decision under subsection 56CA(1) (about accreditation for the consumer data right) of the Competition and Consumer Act 2010;\n (ii) a decision under the consumer data rules (within the meaning of that Act) relating to a person’s accreditation under subsection 56CA(1) of that Act.\n (6) In this Act:\n\n> IGIS official means:\n\n (a) the Inspector‑General of Intelligence and Security; or\n (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.","sortOrder":41},{"sectionNumber":"30","sectionType":"section","heading":"Annual report","content":"#### 30 Annual report\n\n The annual report prepared by the Information Commissioner and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include:\n (a) the freedom of information matters (see section 31); and\n (b) the privacy matters (see section 32); and\n (c) the consumer data right matters (see section 32A).","sortOrder":42},{"sectionNumber":"31","sectionType":"section","heading":"Definition of the freedom of information matters","content":"#### 31 Definition of the freedom of information matters\n\n (1) The freedom of information matters are as follows:\n (a) information about any guidelines mentioned in paragraph 8(e) issued during the year and the matters to which those guidelines relate;\n (b) the number of requests under the Freedom of Information Act 1982 to which subsection (2) applies;\n (c) the number of applications under section 48 of the Freedom of Information Act 1982 received during the year and particulars of the results of those applications;\n (d) particulars of the total charges collected during the year in dealing with requests and other applications whenever received;\n (e) the number of applications made under Part VI of the Freedom of Information Act 1982 during the year for the internal review of decisions, and particulars of the results of those reviews;\n (f) the number of applications made under Part VII 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;\n (g) the number of applications made under Part VIIA of the Freedom of Information Act 1982 during the year to the Administrative Review Tribunal for the review of decisions, and particulars of the results of those reviews;\n (h) the number of complaints made under Part VIIB 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;\n (i) a description of any efforts made by the Information Commissioner to assist agencies to comply with the agency’s obligations under the Freedom of Information Act 1982.\n (2) This subsection applies to a request if, during the year:\n (a) the request was received under section 15 of the Freedom of Information Act 1982; or\n (b) access (other than partial access) to the document (or all of the documents) to which the request relates was given; or\n (c) access to the document (or all of the documents) to which the request relates was refused; or\n (d) partial access to the document (or documents) to which the request relates was granted.\n (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:\n (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;\n (b) the request related to 2 or more documents and access was refused to one or more of the documents.","sortOrder":43},{"sectionNumber":"32","sectionType":"section","heading":"Definition of the privacy matters","content":"#### 32 Definition of the privacy matters\n\n (1) The privacy matters are as follows:\n (a) a statement of the performance during the year of the privacy functions conferred by section 17 and paragraph 28A(1)(d) of the Privacy Act 1988;\n (b) a statement about the operation of registered APP codes under the Privacy Act 1988 that contain procedures covered by subsection (2), including details about the number of complaints made during the year under codes, their nature and outcome;\n (c) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 during the year;\n (d) a statement including details about the number of complaints made under section 36 of the Privacy Act 1988 in relation to which the Commissioner has decided during the year under section 41 of that Act not to investigate, or not to investigate further, and the relevant grounds for the decision.\n (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.","sortOrder":44},{"sectionNumber":"32A","sectionType":"section","heading":"Definition of the consumer data right matters","content":"#### 32A Definition of the consumer data right matters\n\n The consumer data right matters are a statement of the performance of the functions conferred as described in paragraph 9(1)(b).","sortOrder":45},{"sectionNumber":"33","sectionType":"section","heading":"Review of operation of Act","content":"#### 33 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken.\n (2) The review must:\n (a) start 2 years after the commencement of this section; and\n (b) be completed within 6 months.\n (3) The Minister must cause a written report about the review to be prepared.\n (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.","sortOrder":46},{"sectionNumber":"34","sectionType":"section","heading":"Privileges and immunities of the Crown","content":"#### 34 Privileges and immunities of the Crown\n\n The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.","sortOrder":47},{"sectionNumber":"35","sectionType":"section","heading":"Information officer etc. not to be sued","content":"#### 35 Information officer etc. not to be sued\n\n (1) This section applies to a person if:\n (a) the person is an information officer; or\n (b) the person is acting under the direction or authority of an information officer.\n (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.","sortOrder":48},{"sectionNumber":"36","sectionType":"section","heading":"Regulations","content":"#### 36 Regulations\n\n The Governor‑General may make regulations prescribing matters:\n (a) required or permitted by this Act to be prescribed; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":49}],"analysis":{"issue_detection":{"absurdities":[{"type":"circular_definition","section":"27A(5)-(6)","severity":"medium","reasoning":"Section 27A(5) says the Committee determines whether the conflicted member participates. Section 27A(6) then bars the conflicted member from the deliberation and decision about that very determination. If multiple members are conflicted simultaneously, the mechanism for resolving conflicts itself becomes inoperable, with no fallback provision.","confidence":0.82,"description":"Circular exclusion paradox: a Committee member with a conflict of interest must be excluded from deliberations and decisions, including the very determination of whether they should be excluded. Subsection (6) requires the conflicted member to also absent themselves from the deliberation about whether to exclude them. If every other member also has a conflict on the same matter, no quorum-capable group remains to make the exclusion determination."},{"type":"self_contradicting","section":"27A(8) read with s22 and s27A(1)-(7)","severity":"medium","reasoning":"The stated rationale for the exemption (the note refers back to s22, which requires disclosure to the Minister) does not replicate the recusal mechanism of s27A(5)-(6). The Information Commissioner need never step aside as Chair even when personally interested in the subject matter under discussion, contradicting the governance purpose of s27A.","confidence":0.78,"description":"The Information Commissioner, as Chair of the Information Advisory Committee, is expressly exempted from the Committee's conflict of interest disclosure regime (s27A(8)), yet the Information Commissioner chairs every Committee meeting and controls its agenda. The Committee exists solely to advise the Information Commissioner. A conflicted Chair who cannot be required to disclose or recuse themselves at Committee level can steer advice in their own interest, undermining the entire purpose of the advisory structure."},{"type":"circular_definition","section":"s13 Guide (delegation) read with s25(1)","severity":"low","reasoning":"Section 7(b) defines information commissioner functions as any function that is not a FOI or privacy function — a residual catch-all defined by exclusion from two other catch-alls (s8(l) and s9(1)(a)). The boundary between function categories is therefore not fixed and depends on how external Acts characterise conferred functions, creating interpretive instability.","confidence":0.7,"description":"The Guide to Part 3 states the Information Commissioner 'may delegate all of his or her functions or powers, other than the information commissioner functions'. However, s25(1) expressly permits delegation of functions beyond those excluded — including numerous freedom of information and privacy functions. The Guide's characterisation is misleading but, more importantly, the information commissioner functions defined in s7 include a catch-all in s7(b) for 'any other function conferred by this Act or another Act on the Information Commissioner other than a freedom of information function or a privacy function', which is itself circular and potentially unbounded."},{"type":"other","section":"s11(5)(b) and s12(5)(b)","severity":"medium","reasoning":"The deeming provision creates accountability ambiguity. The Information Commissioner is legally attributed with the act for all statutory purposes (e.g., review rights, appeals, liability) while the actual decision-maker is the FOI or Privacy Commissioner. Subsections (c) of both provisions then confirm the Information Commissioner can separately perform the same function on another occasion, meaning two distinct legal acts by two different people can both be 'the Information Commissioner's' decision on different matters simultaneously.","confidence":0.75,"description":"Legal fiction of dual attribution: when the Freedom of Information Commissioner or Privacy Commissioner performs a function 'expressed to be conferred on the Information Commissioner', that act is 'taken to have been performed or exercised by the Information Commissioner'. This means a single act simultaneously belongs to two different legal persons holding separate statutory offices, creating an absurdity where the Information Commissioner is legally responsible for decisions they did not make and may have had no knowledge of."},{"type":"other","section":"s25(1) read with s24(2)","severity":"medium","reasoning":"Section 24(2) cross-refers to s25 to limit consultant scope, but s25(2) imposes an SES-level staffing requirement that by its terms applies only to 'a member of staff'. A consultant could therefore be authorised to exercise powers that a non-SES staff member cannot, because the SES threshold in s25(2) is not replicated for consultants. This is an unintended asymmetry that expands, rather than restricts, consultant authority.","confidence":0.65,"description":"Consultant powers are parasitic on delegation powers in a potentially circular manner: s24(2) limits consultants to functions that 'can be delegated to a member of staff under section 25', but s25 itself permits delegation of most functions subject to exceptions. The practical effect is that consultants (private parties engaged on contract) can exercise significant statutory powers — including quasi-judicial functions such as reviewing FOI decisions — subject only to the SES-level restriction in s25(2), which applies only to staff, not to consultants."},{"type":"other","section":"s21(1) and s21(3)","severity":"low","reasoning":"The absence of s21(2) is visible in the text. Whether it was repealed or accidentally omitted affects interpretation of the acting appointment regime. The legislation as presented creates a numbered gap that may generate uncertainty about whether any intervening conditions were intended to apply.","confidence":0.72,"description":"Section 21 contains a gap in its numbering — subsection (2) does not appear in the text. Subsection (1) and (3) are present but (2) is absent. This creates a structural lacuna: the note refers to s33A of the Acts Interpretation Act 1901 for general acting appointment rules, but the missing subsection (2) may have contained specific constraints or permissions that no longer operate, leaving compliance requirements uncertain."},{"type":"other","section":"s12(4) paragraph lettering","severity":"low","reasoning":"Non-sequential paragraph lettering in a list of mandatory approval requirements creates interpretive uncertainty. A reader cannot determine whether the gaps represent deliberate repeals (in which case the surviving paragraphs are exhaustive) or drafting errors. This is a structural absurdity in the presentation of binding legal obligations.","confidence":0.8,"description":"Section 12(4) lists approval requirements for the Privacy Commissioner using letters (a), (c), (d), (e), (g) — paragraphs (b) and (f) are missing. This creates a structural gap suggesting provisions were repealed but the remaining paragraphs were not renumbered, leaving the legislative sequence incoherent and potentially confusing as to whether omitted paragraphs represent intentional deletions or drafting errors."},{"type":"other","section":"s2(2) read with the commencement table","severity":"low","reasoning":"The disclaimer that Column 3 is not part of the Act but can be edited creates a peculiar situation where the apparent historical record of commencement is mutable. While this may be intended merely to permit administrative updates, it could theoretically allow publication of incorrect historical dates with no legislative remedy.","confidence":0.6,"description":"Column 3 of the commencement table is declared 'not part of this Act' and may be 'added to or edited in any published version'. Yet the same column records historically fixed facts (the actual dates of proclamation and Royal Assent). Permitting post-enactment editing of what purports to record the actual commencement history of the Act creates potential for the published version to contain dates that differ from the legally operative commencement, without any mechanism to determine which version is authoritative."}],"contradictions":[{"severity":"medium","section_a":"s4 Guide (Part 2) — '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.'","section_b":"s11(2) — 'The Freedom of Information Commissioner may also perform the privacy functions.' and s12(2) — 'The Privacy Commissioner may also perform the freedom of information functions.'","confidence":0.85,"description":"The Guide states that all information officers 'may perform' both FOI and privacy functions as a blanket rule. Sections 11 and 12 then impose significant approval-based restrictions on both commissioners performing certain sub-categories of those functions (s11(4) and s12(4)). The Guide's unqualified statement is contradicted by the approval requirements that gate access to key functions, meaning the officers cannot freely 'perform' those functions without the Information Commissioner's approval."},{"severity":"low","section_a":"s15(2) — 'An information officer holds office on a full-time basis.'","section_b":"s16 — 'An information officer must not engage in paid employment outside the duties of his or her office without the Minister's approval.'","confidence":0.65,"description":"Section 15(2) mandates full-time office-holding, which is logically incompatible with any outside employment. However, s16 contemplates that outside paid employment is permissible with Ministerial approval, implying part-time or supplementary engagement is possible. These provisions are in tension: if an information officer holds office on a strictly full-time basis, there is no conceptual space for approved outside employment, yet the statute expressly provides for it."},{"severity":"medium","section_a":"s11(4)(a) — Freedom of Information Commissioner requires Information Commissioner approval to issue, vary or revoke guidelines under s8(e).","section_b":"s25(1)(c) — The Information Commissioner cannot delegate the function of issuing guidelines under s8(e) to any member of staff.","confidence":0.7,"description":"The FOI Commissioner can exercise the guideline-issuing power only with the Information Commissioner's approval. But the Information Commissioner cannot delegate that function to staff. This means if the Information Commissioner is absent, incapacitated or there is a vacancy, no acting arrangement exists that clearly resolves whether the acting Information Commissioner (appointed under s21) can give the required approval — and no staff member can exercise the underlying power in any event. Urgent guideline action could be paralysed."},{"severity":"low","section_a":"s34 — 'The Office of the Australian Information Commissioner has the privileges and immunities of the Crown.'","section_b":"s35(2) — Information officers and those acting under their direction are not liable for acts done in good faith in exercise of their powers.","confidence":0.62,"description":"Section 34 grants Crown immunity to the Office as an entity, while s35 provides a separate good-faith immunity to individual officers. However, Crown immunity is broader and does not require good faith, whereas s35 is limited to good faith acts. This creates an inconsistency: the Office entity has broader protection than its individual officers, and it is unclear whether an act carried out in bad faith by an officer could still attract Crown immunity for the Office itself while the officer remains personally exposed."},{"severity":"medium","section_a":"s29(1) — Offence of unauthorised dealing with information acquired '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.'","section_b":"s29(2)(b) — Exception where 'the person acquires the information for any other lawful purpose.'","confidence":0.73,"description":"The offence in s29(1) is premised on information acquired in the course of performing statutory functions. The exception in s29(2)(b) applies where information is acquired 'for any other lawful purpose', which by definition would not be information acquired in the course of the statutory functions described in s29(1). The exception therefore applies to circumstances that cannot trigger the offence in the first place, rendering it either redundant or indicative of an unintended gap in the drafting where an 'acquired and used for a lawful purpose' exception was intended but misdescribed."}]},"kimi_summary":{"_metrics":{"completionTokens":620},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":true,"description":"The original 2010 Act established the OAIC with FOI and privacy functions. The scope has expanded significantly through amendments to include the Consumer Data Right (Part IVD of Competition and Consumer Act 2010), which added new privacy functions and reporting requirements (section 32A). The legislation now covers open government, privacy protection, and consumer data portability across banking and energy sectors."},"complexity_factors":["Multiple overlapping roles with shared and distinct functions requiring careful parsing","Extensive cross-referencing to other Acts (Freedom of Information Act 1982, Privacy Act 1988, Competition and Consumer Act 2010, Public Governance, Performance and Accountability Act 2013)","Conditional delegation rules with two-tier restrictions (general exclusions plus SES-level requirements)","Nested definitions: 'information commissioner functions', 'freedom of information functions', and 'privacy functions' each defined separately then combined in role descriptions","Complex acting appointment rules with specific qualification requirements for the FOI Commissioner","Multiple reporting streams required in annual reports (FOI matters, privacy matters, consumer data right matters)","Detailed disclosure of interest requirements with recursive exclusion rules (Committee members vs Information Commissioner)","Criminal offence provision with 8 separate exemption categories and evidential burden shifting"],"plain_english_summary":"This Act creates the **Office of the Australian Information Commissioner (OAIC)**, an independent government body that oversees how Commonwealth agencies handle information. It brings together three roles under one roof:\n\n**The three Commissioners:**\n- **Information Commissioner** — the head of the office, responsible for strategic advice on government information management and policy\n- **Freedom of Information (FOI) Commissioner** — handles public access to government documents and reviews FOI decisions\n- **Privacy Commissioner** — protects personal information and handles privacy complaints\n\n**What the office does:**\n- **Freedom of information functions**: Helps people access government documents, reviews FOI decisions, investigates complaints, and promotes open government\n- **Privacy functions**: Investigates privacy breaches, handles complaints under the *Privacy Act 1988*, and oversees the *Consumer Data Right* (which lets people control their banking and energy data)\n- **Information commissioner functions**: Advises the Minister on how government collects, uses, stores and shares information\n\n**Who it affects:**\n- Anyone seeking access to government documents\n- People whose personal information is held by government agencies\n- Government agencies that must comply with FOI and privacy laws\n- Businesses involved in the Consumer Data Right scheme\n\n**Key protections:**\n- Commissioners and staff cannot be sued for actions done in good faith\n- It's a criminal offence (up to 2 years prison) to improperly disclose information obtained through these functions\n- The office has Crown immunity (special legal protections)\n\nThe Act also establishes an **Information Advisory Committee** to advise the Information Commissioner, and requires annual public reporting on FOI, privacy, and consumer data right activities."},"summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The Act was originally established in 2010 to consolidate FOI oversight and privacy regulation under one roof, and to add a strategic information management function. However, its scope has since expanded to include **Consumer Data Right matters** (added via amendments tied to Part IVD of the Competition and Consumer Act 2010), which were not part of the original design. This added a third substantive function area — consumer data oversight — that goes beyond traditional privacy and FOI regulation into economic/competition law territory."},"complexity_factors":["Interlinks with multiple other Acts (Freedom of Information Act 1982, Privacy Act 1988, Competition and Consumer Act 2010, Public Governance Performance and Accountability Act 2013, Public Service Act 1999, Crimes Act 1914, Data-matching Program Act 1990, National Health Act 1953, Telecommunications Act 1997) requiring cross-referencing to understand full effect","Three-tiered office structure with overlapping functions — all three information officers can perform FOI and privacy functions, but some actions require the Information Commissioner's approval, creating a nuanced hierarchy","Complex delegation rules with different tiers of staff seniority required for different delegated powers","Consumer data right functions were added later, expanding scope and creating hybrid privacy/consumer law territory","The unauthorised information disclosure offence (section 29) has multiple layered exceptions that are difficult to parse without careful reading","Scope of 'privacy functions' is defined broadly and open-endedly, picking up functions conferred by other Acts not listed in the Act itself","Cross-jurisdictional interaction with intelligence oversight (IGIS officials) adding a security dimension"],"plain_english_summary":"## What This Law Does\n\nThis Act creates the **Office of the Australian Information Commissioner (OAIC)** — a single, independent government watchdog that oversees three major areas affecting everyday Australians:\n\n1. **Freedom of Information (FOI):** Your right to access documents held by federal government agencies. The OAIC can review decisions where an agency refuses to give you access to information, investigate complaints, and make sure agencies comply with FOI laws.\n\n2. **Privacy:** Protection of your personal information. The OAIC oversees how government agencies and businesses handle your data, investigates privacy complaints, and enforces privacy rules.\n\n3. **Consumer Data Right:** Your right to control and share your own data (for example, banking or energy data) under the Consumer Data Right system.\n\n## Who Runs It?\n\nThe Office has three senior officials (called \"information officers\"):\n- **The Australian Information Commissioner** — the boss, with oversight of all three areas plus strategic functions about how government manages information generally\n- **The Freedom of Information Commissioner** — must have a law degree; focuses on FOI matters\n- **The Privacy Commissioner** — focuses on privacy matters\n\nAll three are appointed by the Governor-General (i.e., at the highest level of government) for terms of up to 5 years. They can be sacked for serious reasons like bankruptcy, unexplained absences, or misconduct.\n\n## What Does This Mean For You?\n\n- If a government agency **refuses your FOI request**, the Information Commissioner can review that decision.\n- If your **privacy is breached**, you can complain to the Privacy Commissioner.\n- If you have concerns about how your **consumer data** (like banking data) is being used, the Office handles that too.\n- Staff of the Office face **up to 2 years in prison** if they improperly disclose information they learn through their official work — so your sensitive information is legally protected.\n- The Office must publish an **annual report** detailing how many FOI requests were made and resolved, how many privacy complaints were received, and how the consumer data right is functioning — giving the public a way to hold the system accountable.\n\n## An Advisory Committee\n\nThere's also an **Information Advisory Committee** — a group of senior government officials and external experts who advise the Information Commissioner on broader information management strategy. Members must declare any conflicts of interest.\n\n## Who Is Affected?\n\n- **Every Australian** who has ever made an FOI request, lodged a privacy complaint, or uses banking/energy/telco services under the Consumer Data Right\n- **All federal government agencies** subject to FOI and privacy obligations\n- **Businesses** handling personal data or participating in the Consumer Data Right scheme"},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The Act originally focused on FOI and privacy functions, but has been amended to include consumer data right matters (Part IVD of the Competition and Consumer Act 2010). This expanded the OAIC's role into regulating data portability and accreditation for the consumer data right, which was not part of the original 2010 design."},"complexity_factors":["12+ defined terms in the interpretation section","Cross-references to the Freedom of Information Act 1982, Privacy Act 1988, Competition and Consumer Act 2010, and several other Acts","Nested conditions for when officers can perform each other's functions (e.g., Freedom of Information Commissioner can only issue guidelines with Information Commissioner's approval)","Detailed delegation rules with specific functions that cannot be delegated or can only be delegated to SES-level staff","Multiple exceptions to the offence provision in section 29 (unauthorised dealing with information)"],"plain_english_summary":"This Act sets up the **Office of the Australian Information Commissioner (OAIC)**, a government agency that looks after two main areas: **freedom of information (FOI)** and **privacy**. It creates three senior officers:\n\n- **Australian Information Commissioner** – the head of the office, responsible for strategic information management across government.\n- **Freedom of Information Commissioner** – handles FOI requests, reviews decisions, and promotes government transparency.\n- **Privacy Commissioner** – handles privacy complaints, issues guidelines, and enforces privacy laws.\n\nAll three can handle FOI and privacy matters, but only the Information Commissioner can do strategic reporting on government information handling.\n\nThe Act also sets out how these officers are appointed (by the Governor-General), their terms (up to 5 years), and what they can and can't delegate. It creates a small advisory committee and includes rules about keeping information confidential (with criminal penalties for leaks).\n\n**Who it affects:** Anyone who deals with Commonwealth government agencies - journalists, researchers, members of the public making FOI requests, and people whose personal information is held by government. It also affects government agencies that must comply with FOI and privacy obligations.\n\n**Why it matters:** It centralises oversight of government information and privacy into one office, making it easier for the public to know where to go with complaints or requests. The Act gives the office power to investigate, issue binding guidelines, and make decisions that affect what information the government must release and how it protects personal data."}},"importantCases":[],"_links":{"self":"/api/acts/australian-information-commissioner-act-2010","history":"/api/acts/australian-information-commissioner-act-2010/history","analysis":"/api/acts/australian-information-commissioner-act-2010/analysis","conflicts":"/api/acts/australian-information-commissioner-act-2010/conflicts","importantCases":"/api/acts/australian-information-commissioner-act-2010/important-cases","documents":"/api/acts/australian-information-commissioner-act-2010/documents"}}