Information Commissioner Act 2024 (Western Australia)

Mechanically, the Information Commissioner Act 2024 (WA) creates a new statutory architecture for oversight of freedom of information and privacy in Western Australia and makes consequential amendments to other Acts, most notably the Freedom of Information Act 1992 (FOI Act). The Act establishes three separate statutory offices: the Information Commissioner (s 5(1)), an Information Access Deputy Commissioner (s 9(1)) and a Privacy Deputy Commissioner (s 13(1)). Each of those offices is filled by an eligible person appointed by the Governor (ss 5(2), 9(2), 13(2)), is not itself an office in the Public Service (ss 5(3), 9(4), 13(4)), and holds office for a term not exceeding five years with one possible reappointment (ss 5(4)-(6), 9(5)-(6), 13(5)-(6)). Remuneration for the three offices is to be determined by the Governor and paid from the Consolidated Account (ss 6(1) and (4), 10(1) and (4), 14(1) and (4)); the Act protects incumbents against mid‑term reductions in rate of remuneration (ss 6(2), 10(2), 14(2)).

Functionally, the Information Commissioner is given both the freedom of information functions (as defined in the FOI Act, s 3) and the privacy functions (as defined in the Privacy and Responsible Information Sharing Act 2024 (PRIS Act), s 3 and s 25(1)(a)-(b)). The Deputy Commissioners are designated specialists: the Information Access Deputy Commissioner has the freedom of information functions (s 26(1)(a)) and the Privacy Deputy Commissioner has the privacy functions (s 27(1)(a)). The Act expressly confers the powers necessary to perform each office’s functions (ss 25(2), 26(2), 27(2)) and permits delegations to members of staff subject to statutory limits (s 28).

The Act inserts administrative provisions into the FOI Act (Part 7 Division 4 Subdivision 1). It deletes existing Part 4 Divisions 1 and 2 of the FOI Act (s 55) and inserts a new Part 5A (ss 97A-97C) that sets out functions and an operational relationship between the Information Commissioner and the Information Access Deputy Commissioner. Those FOI amendments define which functions are freedom of information functions, allow the Information Commissioner to direct the Information Access Deputy Commissioner as to which FOI functions the Deputy will perform and forbid delegation of certain FOI functions (new s 97C). The Act also amends complaint procedures (s 56 amending FOI s 66), the requirement for reporting by agencies (amendments to FOI s 111, s 64), and other operational clauses (see ss 56-66).

CrestWestern Australia

Information Commissioner Act 2024

Western Australia

Information Commissioner Act 2024

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 3
Act binds Crown 4

Part 2 — Appointment of Information Commissioner and Deputy Commissioners

Division 1 — Information Commissioner

Appointment of Information Commissioner 5
Remuneration and terms and conditions of Information Commissioner 5
Appointment of person to act as Information Commissioner 6
Oath or affirmation of office of Information Commissioner 6

Division 2 — Information Access Deputy Commissioner

Appointment of Information Access Deputy Commissioner 6
Remuneration and terms and conditions of Information Access Deputy Commissioner 7
Appointment of person to act as Information Access Deputy Commissioner 8
Oath or affirmation of office of Information Access Deputy Commissioner 8

Division 3 — Privacy Deputy Commissioner

Appointment of Privacy Deputy Commissioner 9
Remuneration and terms and conditions of Privacy Deputy Commissioner 9
Appointment of person to act as Privacy Deputy Commissioner 10
Oath or affirmation of office of Privacy Deputy Commissioner 10

Division 4 — General provisions about appointment of Information Commissioner and Deputy Commissioners

Terms used 11
Persons eligible for appointment 11
When office becomes vacant 11
Resignation 12
Suspension or removal from office 12
Outside employment 13
Public service officer appointed as Commissioner 13
Provisions about Acting Commissioners 14

Part 3 — Functions of Information Commissioner and Deputy Commissioners

Functions of Information Commissioner 15
Functions of Information Access Deputy Commissioner 15
Functions of Privacy Deputy Commissioner 15
Delegation 16

Part 4 — Staff and related provisions

Staff 18
Use of government staff and facilities 18
Engagement of service providers 18

Part 5 — Miscellaneous

Annual report to Parliament 20
Secrecy and authorised disclosure and use of information 21
Protection from personal liability 22
Regulations 22

Part 6 — Transitional provisions

Terms used 23
FOI Act Information Commissioner to continue as Information Access Deputy Commissioner 23
Acting FOI Act Information Commissioner to continue as Acting Information Access Deputy Commissioner 24
FOI Act staff members to be appointed as public service officers 25
Arrangements for use of staff continued 26
Things done or started under Freedom of Information Act 1992 before transition day 26
Legal proceedings 27
Information and records 27
Application of Financial Management Act 2006 Part 5 Division 3 27
Transitional regulations 28

Part 7 — Other Acts amended

Division 1 — Constitution Acts Amendment Act 1899 amended

Act amended 30
Schedule V amended 30

Division 3 — Financial Management Act 2006 amended

Act amended 30
Section 5 amended 30
Schedule 2 heading replaced 31

Schedule 2 — Modifications to the Act as to certain administrations and the Office of the Information Commissioner

Schedule 2 amended 31

Division 4 — Freedom of Information Act 1992 amended

Subdivision 1 — Main amendments

Act amended 32
Part 4 Divisions 1 and 2 deleted 32
Section 66 amended 32
Section 75 amended 33
Part 4 Division 4 heading deleted 33
Sections 79 and 80 replaced 34
Commissioner may give notice of officer’s conduct 34
Section 81 amended 34
Section 82 deleted 35
Section 83 amended 35
Part 5A inserted 35

Part 5A — Administration

97A. Functions of Information Commissioner and Information Access Deputy Commissioner under this Act 35

97B. Performance of freedom of information functions 36

97C. Certain functions cannot be delegated 38

Section 111 amended 38
Glossary clause 1 amended 39
Various references to “Commissioner” amended 39

Subdivision 2 — Amendment linked to commencement of Criminal Law (Mental Impairment) Act 2023

Act amended 41
Section 79 amended 41

Division 5 — Parliamentary Commissioner Act 1971 amended

Act amended 41
Schedule 1 amended 41

Division 6 — State Records Act 2000 amended

Act amended 42
Section 58 amended 42

Notes

Compilation table 43

Other notes 43

Defined terms

View image in the official sourceWestern Australia

Information Commissioner Act 2024

An Act —

to establish and make provision for the offices of Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner; and
to make related and consequential amendments to the Freedom of Information Act 1992 and other Acts; and
for related purposes.

Part 1 — Preliminary

1. Short title

This is the Information Commissioner Act 2024.

2. Commencement

(1) This Act comes into operation as follows —

(a) Part 1 — on the day on which this Act receives the Royal Assent (assent day);

(b) Part 5 (but only section 35) and Part 6 — on the day after assent day;

(i) if the Criminal Law (Mental Impairment) Act 2023 section 325 comes into operation on or before the day on which section 59 of this Act comes into operation under paragraph (d) — immediately after section 59 of this Act comes into operation; or

(ii) otherwise — when the Criminal Law (Mental Impairment) Act 2023 section 325 comes into operation;

(d) the rest of the Act — on the day on which the Privacy and Responsible Information Sharing Act 2024 Part 2 Division 12 comes into operation.

(2) Despite subsection (1)(d), if the Criminal Law (Mental Impairment) Act 2023 section 410(2) comes into operation before the day on which Part 7 Division 2 of this Act comes into operation, Part 7 Division 2 of this Act —

(a) does not come into operation; and

(b) is deleted.

3. Terms used

In this Act —

eligible person means a person who meets the eligibility requirements under section 18;

freedom of information functions has the meaning given in the Freedom of Information Act 1992 section 97B(1);

Information Access Deputy Commissioner means the person appointed as Information Access Deputy Commissioner under section 9(2);

information Act means —

(a) this Act; or

(b) the Freedom of Information Act 1992; or

Information Commissioner means the person appointed as Information Commissioner under section 5(2);

information official means a person who is or has been —

(a) the Information Commissioner; or

(b) the Information Access Deputy Commissioner; or

(d) a person appointed under section 7, 11 or 15 to act in the office of Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner; or

(e) a member of staff; or

(f) a person engaged to provide services under section 31;

member of staff means —

(a) a public service officer appointed or made available under section 29; or

(b) a person in relation to whom an arrangement under section 30(1) is in effect;

Privacy Deputy Commissioner means the person appointed as Privacy Deputy Commissioner under section 13(2);

privacy functions has the meaning given in the Privacy and Responsible Information Sharing Act 2024 section 142(1).

4. Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2 — Appointment of Information Commissioner and Deputy Commissioners

Division 1 — Information Commissioner

5. Appointment of Information Commissioner

(1) An office called the Information Commissioner is established.

(2) The Information Commissioner is to be an eligible person appointed by the Governor.

(3) The office of Information Commissioner is not an office in the Public Service.

(4) Subject to Division 4, the Information Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment.

(5) A person who has been appointed as Information Commissioner is eligible for reappointment once.

6. Remuneration and terms and conditions of Information Commissioner

(1) Subject to the Salaries and Allowances Act 1975, the Information Commissioner is entitled to be paid the remuneration determined by the Governor.

(2) The Information Commissioner’s rate of remuneration must not be reduced during a term of office of the Information Commissioner without the Information Commissioner’s consent.

(3) The Governor may determine —

(a) the leave of absence to which the Information Commissioner is entitled; and

(b) other terms and conditions of service that apply to the Information Commissioner.

(4) Remuneration paid to the Information Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.

7. Appointment of person to act as Information Commissioner

The Governor may appoint an eligible person to act in the office of Information Commissioner during a period —

(a) when the Information Commissioner is —

(i) on leave of absence; or

(ii) unable to perform the functions of the Information Commissioner;

(b) when the Information Commissioner is suspended; or

8. Oath or affirmation of office of Information Commissioner

(1) Before performing the functions of the Information Commissioner for the first time, the Information Commissioner or a person appointed to act in the office of Information Commissioner must take an oath, or make an affirmation, that they will faithfully and impartially perform those functions, and that they will not, except in accordance with an information Act, divulge any information received in the performance of those functions.

(2) The oath or affirmation must be administered by the Governor.

Division 2 — Information Access Deputy Commissioner

9. Appointment of Information Access Deputy Commissioner

(1) An office called the Information Access Deputy Commissioner is established.

(2) The Information Access Deputy Commissioner is to be an eligible person appointed by the Governor.

(3) The Information Access Deputy Commissioner is a deputy of the Information Commissioner.

(4) The office of Information Access Deputy Commissioner is not an office in the Public Service.

(5) Subject to Division 4, the Information Access Deputy Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment.

(6) A person who has been appointed as Information Access Deputy Commissioner is eligible for reappointment once.

10. Remuneration and terms and conditions of Information Access Deputy Commissioner

(1) Subject to the Salaries and Allowances Act 1975, the Information Access Deputy Commissioner is entitled to be paid the remuneration determined by the Governor.

(2) The Information Access Deputy Commissioner’s rate of remuneration must not be reduced during a term of office of the Information Access Deputy Commissioner without the Information Access Deputy Commissioner’s consent.

(3) The Governor may determine —

(a) the leave of absence to which the Information Access Deputy Commissioner is entitled; and

(b) other terms and conditions of service that apply to the Information Access Deputy Commissioner.

(4) Remuneration paid to the Information Access Deputy Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.

11. Appointment of person to act as Information Access Deputy Commissioner

The Governor may appoint an eligible person to act in the office of Information Access Deputy Commissioner during a period —

(a) when the Information Access Deputy Commissioner is —

(i) on leave of absence; or

(ii) unable to perform the functions of the Information Access Deputy Commissioner;

(b) when the Information Access Deputy Commissioner is suspended; or

12. Oath or affirmation of office of Information Access Deputy Commissioner

(1) Before performing the functions of the Information Access Deputy Commissioner for the first time, the Information Access Deputy Commissioner or a person appointed to act in the office of Information Access Deputy Commissioner must take an oath, or make an affirmation, that they will faithfully and impartially perform those functions, and that they will not, except in accordance with an information Act, divulge any information received in the performance of those functions.

(2) The oath or affirmation must be administered by the Governor.

Division 3 — Privacy Deputy Commissioner

13. Appointment of Privacy Deputy Commissioner

(1) An office called the Privacy Deputy Commissioner is established.

(2) The Privacy Deputy Commissioner is to be an eligible person appointed by the Governor.

(3) The Privacy Deputy Commissioner is a deputy of the Information Commissioner.

(4) The office of Privacy Deputy Commissioner is not an office in the Public Service.

(5) Subject to Division 4, the Privacy Deputy Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment.

(6) A person who has been appointed as Privacy Deputy Commissioner is eligible for reappointment once.

14. Remuneration and terms and conditions of Privacy Deputy Commissioner

(1) Subject to the Salaries and Allowances Act 1975, the Privacy Deputy Commissioner is entitled to be paid the remuneration determined by the Governor.

(2) The Privacy Deputy Commissioner’s rate of remuneration must not be reduced during a term of office of the Privacy Deputy Commissioner without the Privacy Deputy Commissioner’s consent.

(3) The Governor may determine —

(a) the leave of absence to which the Privacy Deputy Commissioner is entitled; and

(b) other terms and conditions of service that apply to the Privacy Deputy Commissioner.

(4) Remuneration paid to the Privacy Deputy Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.

15. Appointment of person to act as Privacy Deputy Commissioner

The Governor may appoint an eligible person to act in the office of Privacy Deputy Commissioner during a period —

(a) when the Privacy Deputy Commissioner is —

(i) on leave of absence; or

(ii) unable to perform the functions of the Privacy Deputy Commissioner;

(b) when the Privacy Deputy Commissioner is suspended; or

16. Oath or affirmation of office of Privacy Deputy Commissioner

(1) Before performing the functions of the Privacy Deputy Commissioner for the first time, the Privacy Deputy Commissioner or a person appointed to act in the office of Privacy Deputy Commissioner must take an oath, or make an affirmation, that they will faithfully and impartially perform those functions, and that they will not, except in accordance with an information Act, divulge any information received in the performance of those functions.

(2) The oath or affirmation must be administered by the Governor.

Division 4 — General provisions about appointment of Information Commissioner and Deputy Commissioners

17. Terms used

In this Division —

Acting Commissioner means a person appointed under section 7, 11 or 15 to act in the office of Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner;

Commissioner means the Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner.

18. Persons eligible for appointment

A person is eligible for appointment as a Commissioner if the person —

(a) is or has been a legal practitioner of at least 5 years’ standing; or

(b) is, in the opinion of the Governor, suitable for appointment as a Commissioner by reason of the person’s legal qualifications and experience, whether in this State or elsewhere.

19. When office becomes vacant

The office of a Commissioner becomes vacant if —

(a) the period for which the Commissioner holds office expires; or

(b) the Commissioner —

(i) dies; or

(ii) resigns under section 20; or

(iii) is removed from office under section 21.

20. Resignation

(1) A Commissioner may at any time resign from office by written notice addressed to the Governor.

(2) The resignation takes effect on the day on which the notice is given to the Governor or on a later day specified in the notice.

21. Suspension or removal from office

(1) A Commissioner may, at any time, be suspended or removed from office by the Governor on addresses from both Houses of Parliament.

(2) The Governor may suspend a Commissioner from office if the Governor is satisfied that the Commissioner —

(a) is physically or mentally incapable of performing the duties of their office; or

(b) has shown incompetence or neglect in performing those duties; or

(c) is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or

(d) has been guilty of misconduct as defined in the Corruption, Crime and Misconduct Act 2003 section 4.

(3) If a Commissioner is suspended under subsection (2), the suspended Commissioner is restored to office unless —

(a) a statement of the grounds of suspension is laid before each House of Parliament during the first 7 sitting days of that House following the day of suspension; and

(b) each House of Parliament, during the session in which the statement is so laid, and within 30 sitting days after it is so laid, passes an address requesting the removal of the suspended Commissioner from office.

22. Outside employment

A Commissioner must not engage in paid employment outside the Commissioner’s functions under a written law without the approval of the Governor.

23. Public service officer appointed as Commissioner

(1) If a person who is a public service officer is appointed as a Commissioner, the person is entitled to retain any accruing and existing rights, including any rights under the State Superannuation Act 2000, as if service as a Commissioner were a continuation of service as a public service officer.

(2) If a person ceases to be a Commissioner and becomes a public service officer, the person’s service as a Commissioner is to be regarded as service in the Public Service for the purpose of determining that person’s rights as a public service officer and, if applicable, for the purposes of the State Superannuation Act 2000.

(3) Subsection (4) applies to a person if —

(a) immediately before the person is appointed as a Commissioner, the person occupies an office under the Public Sector Management Act 1994 Part 3; and

(b) the person serves 1 or more continuous terms of appointment as a Commissioner; and

(c) the period of the last of those appointments expires by the passage of time and the person is not again appointed as a Commissioner.

(4) The person is entitled to be appointed to an office under the Public Sector Management Act 1994 Part 3 of at least the equivalent level of classification as the office under that Part referred to in subsection (3)(a).

24. Provisions about Acting Commissioners

(1) The Governor may determine —

(a) any remuneration to which an Acting Commissioner is entitled; and

(b) any leave of absence to which an Acting Commissioner is entitled; and

(2) An appointment of an Acting Commissioner under section 7, 11 or 15 —

(a) may be made at any time and may be terminated at any time by the Governor; and

(b) may be expressed to have effect only in the circumstances specified by the Governor.

(3) The validity of anything done by, to, or in relation to, a person purporting to act under section 7, 11 or 15 is not to be called into question on the ground that —

(a) the occasion for an appointment under that section had not arisen; or

(b) there is a defect or irregularity in the appointment; or

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

(4) Remuneration paid to an Acting Commissioner under subsection (1) is charged to the Consolidated Account, which this subsection appropriates accordingly.

Part 3 — Functions of Information Commissioner and Deputy Commissioners

25. Functions of Information Commissioner

(1) The Information Commissioner has the following functions —

(a) the freedom of information functions;

(b) the privacy functions;

(2) The Information Commissioner has all the powers that are needed for the performance of the Information Commissioner’s functions.

26. Functions of Information Access Deputy Commissioner

(1) The Information Access Deputy Commissioner has the following functions —

(a) the freedom of information functions;

(b) any other functions given to the Information Access Deputy Commissioner under a written law.

Note for this subsection:

The Freedom of Information Act 1992 section 97B provides for how the Information Access Deputy Commissioner performs the freedom of information functions.

(2) The Information Access Deputy Commissioner has all the powers that are needed for the performance of the Information Access Deputy Commissioner’s functions.

27. Functions of Privacy Deputy Commissioner

(1) The Privacy Deputy Commissioner has the following functions —

(a) the privacy functions;

(b) any other functions given to the Privacy Deputy Commissioner under a written law.

Note for this subsection:

The Privacy and Responsible Information Sharing Act 2024 section 142 provides for how the Privacy Deputy Commissioner performs the privacy functions.

(2) The Privacy Deputy Commissioner has all the powers that are needed for the performance of the Privacy Deputy Commissioner’s functions.

28. Delegation

(1) The Information Commissioner may delegate to a member of staff any power or duty of the Information Commissioner, other than —

(a) the power of delegation under this subsection; and

(b) any power or duty that cannot be delegated because of the Privacy and Responsible Information Sharing Act 2024 section 143 or the Freedom of Information Act 1992 section 97C.

(2) The Information Access Deputy Commissioner may delegate to a member of staff any power or duty of the Information Access Deputy Commissioner, other than —

(a) the power of delegation under this subsection; and

(b) any power or duty that cannot be delegated because of the Freedom of Information Act 1992 section 97C.

(3) The Privacy Deputy Commissioner may delegate to a member of staff any power or duty of the Privacy Deputy Commissioner, other than —

(a) the power of delegation under this subsection; and

(b) any power or duty that cannot be delegated because of the Privacy and Responsible Information Sharing Act 2024 section 143.

(4) A delegation under this section must be in writing signed by the person making the delegation.

(5) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(6) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(7) Nothing in this section limits the ability of the Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner to perform a function through an officer or agent.

Part 4 — Staff and related provisions

29. Staff

Public service officers may be appointed or made available under the Public Sector Management Act 1994 Part 3 to support the Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner in the performance of their functions.

30. Use of government staff and facilities

(1) The Information Commissioner may, by arrangement with the relevant employer, make use, either full‑time or part‑time, of the services of an officer or employee —

(a) in the Public Service; or

(b) in a State agency; or

(2) The Information Commissioner may, by arrangement with a department of the Public Service or a State agency, make use of any facilities of the department or agency.

(3) An arrangement under subsection (1) or (2) must be made on terms agreed to by the parties.

(4) An arrangement made by the Information Commissioner under subsection (1) or (2) may include provision for the Information Access Deputy Commissioner or Privacy Deputy Commissioner to make use of the services of the officer or employee or the facilities.

31. Engagement of service providers

(1) The Information Commissioner may engage suitably qualified persons to provide services, information or advice to the Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner.

(2) A person engaged by the Information Commissioner under subsection (1) is engaged on the terms and conditions decided by the Information Commissioner.

Part 5 — Miscellaneous

32. Annual report to Parliament

(1) As soon as practicable after 30 June in a financial year, the Information Commissioner must —

(a) prepare a report on —

(i) the operation in the financial year of the Freedom of Information Act 1992 and the Privacy and Responsible Information Sharing Act 2024 Part 2 and Schedule 1; and

(ii) the operations of the Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner in the financial year;

and

(b) submit the report to the President of the Legislative Council and the Speaker of the Legislative Assembly.

(2) The annual report must include the following information for the financial year —

(a) the information required by the Freedom of Information Act 1992 section 111;

(b) the information required by the Privacy and Responsible Information Sharing Act 2024 section 146.

(3) The annual report referred to in subsection (1) may include recommendations of the Information Commissioner as to legislative or administrative changes that could be made to assist in achieving —

(a) the objects of the Freedom of Information Act 1992; and

(b) the objects of the Privacy and Responsible Information Sharing Act 2024 set out in section 3(a) to (e) of that Act.

(4) The President or Speaker must cause a copy of a report submitted to them under subsection (1) to be laid before the Legislative Council or Legislative Assembly, as the case requires, within 15 sitting days of that House after the report is submitted.

Note for this section:

The Information Commissioner must also prepare an annual report under the Financial Management Act 2006.

33. Secrecy and authorised disclosure and use of information

(1) An information official must not, directly or indirectly, record, disclose or use information obtained in the administration of an information Act.

Penalty for this subsection: a fine of $6 000.

(2) An information official does not commit an offence under subsection (1) if the recording, disclosure or use of the information is authorised under subsection (3).

(3) The recording, disclosure or use of information to which subsection (1) applies is authorised if the information is recorded, disclosed or used —

(a) for the purpose of, or in connection with, performing a function under an information Act or another written law; or

(b) as permitted or required by an information Act or another written law; or

(c) for the purposes of any legal proceedings arising out of the administration of an information Act or another written law; or

(d) with the written consent of the person to whom the information relates; or

(e) in circumstances prescribed by the regulations.

(4) Subsection (3) does not affect the operation of the Freedom of Information Act 1992 section 74.

34. Protection from personal liability

(1) No civil or criminal liability is incurred by an information official for anything that the information official has done, in good faith, in the performance or purported performance of a function under an information Act.

(2) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.

(3) Despite subsection (1), the State is not relieved of any liability that it might have for an information official having done anything as described in that subsection.

(4) In this section, a reference to the doing of anything includes a reference to an omission to do anything.

35. Regulations

The Governor may make regulations prescribing matters —

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

(b) necessary or convenient for giving effect to the purposes of this Act.

Part 6 — Transitional provisions

36. Terms used

(1) In this Part —

FOI Act Information Commissioner means the Information Commissioner appointed under the Freedom of Information Act 1992 section 56;

FOI Act staff member means a member of staff appointed under the Freedom of Information Act 1992 section 61(1);

new Information Commissioner means the Information Commissioner appointed under section 5(2);

transition day means the day on which Part 2 of this Act comes into operation under section 2(1)(d).

(2) A reference in this Part to a provision of the Freedom of Information Act 1992 that is deleted by Part 7 Division 4 of this Act is, on and after transition day, a reference to that provision as in force before transition day.

37. FOI Act Information Commissioner to continue as Information Access Deputy Commissioner

(1) A person who, immediately before transition day, is appointed as FOI Act Information Commissioner is, on and from transition day until the expiry of the period of that appointment, taken to be appointed as Information Access Deputy Commissioner under section 9(2) of this Act.

(2) A determination in effect under the Freedom of Information Act 1992 section 56(5) or (6) in relation to the person’s entitlement to leave of absence, or other terms and conditions of service, as FOI Act Information Commissioner is taken, on and from transition day, to be a determination under section 10(3) in relation to the person’s entitlement to leave of absence, or other terms and conditions of service, as Information Access Deputy Commissioner.

(3) The person retains all existing and accruing rights, including any rights under the State Superannuation Act 2000, as if the person’s appointment as Information Access Deputy Commissioner were a continuation of the person’s appointment as FOI Act Information Commissioner.

(4) Despite section 9(6), the person cannot be reappointed as Information Access Deputy Commissioner following the appointment that is taken to occur under subsection (1) if the reappointment would result in the aggregate period of all of the person’s appointments as FOI Act Information Commissioner and Information Access Deputy Commissioner exceeding 10 years.

(5) Section 23(3) and (4) apply to the person as if the person’s appointments as FOI Act Information Commissioner were appointments as a Commissioner within the meaning of that section.

(6) This section does not prevent the person from resigning, or being suspended or removed, from the office of Information Access Deputy Commissioner under Part 2 Division 4.

38. Acting FOI Act Information Commissioner to continue as Acting Information Access Deputy Commissioner

(1) If an appointment of a person to act in the office of FOI Act Information Commissioner is in force immediately before transition day under the Freedom of Information Act 1992 section 59, the appointment is, on and from transition day until the expiry of the period of that appointment, taken to be an appointment of the person to act in the office of Information Access Deputy Commissioner under section 11.

(2) If the appointment to act in the office of FOI Act Information Commissioner is expressed to have effect only in the circumstances specified in the instrument of appointment, subsection (1) applies whether or not those circumstances are applicable immediately before transition day.

(3) Subsection (1) does not prevent the termination of the appointment under section 24(2)(a).

39. FOI Act staff members to be appointed as public service officers

(1) A person who is an FOI Act staff member immediately before transition day is, on and from transition day, taken to be appointed as a public service officer referred to in section 29.

(2) The person’s appointment as a public service officer —

(a) is to a level of classification that is the same as the substantive level of classification that applied in relation to the person as an FOI Act staff member immediately before transition day; and

(b) is —

(i) if the person was appointed as an FOI Act staff member for an indefinite period — an appointment as a permanent officer (as defined in the Public Sector Management Act 1994 section 3(1)); and

(ii) if the person was appointed as an FOI Act staff member for a fixed term — an appointment as a term officer (as defined in the Public Sector Management Act 1994 section 3(1)) for the remainder of that fixed term as at transition day;

and

(3) The person retains all existing and accruing rights, including any rights under the State Superannuation Act 2000, as if the person’s service as an FOI Act staff member were service as a public service officer.

(4) This section does not prevent the person from resigning, or otherwise ceasing to be a public service officer, under the Public Sector Management Act 1994.

40. Arrangements for use of staff continued

If an arrangement under the Freedom of Information Act 1992 section 61(4) is in effect immediately before transition day, the arrangement is taken, on and from transition day, to be an arrangement made under section 30(1) by the new Information Commissioner.

41. Things done or started under Freedom of Information Act 1992 before transition day

(1) Anything done by, to, or in relation to, the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 is, to the extent necessary or convenient for the purpose of continuing its effect on and after transition day, taken to have been done by, to, or in relation to, the new Information Commissioner.

Examples for this subsection:

If a requirement is made by the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 section 75(1), but has not been complied with before transition day, the requirement is taken to have been made by the new Information Commissioner.
If an application is made to the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 section 35, but is not decided before transition day, the application is taken to have been made to the new Information Commissioner.

(2) Anything that the FOI Act Information Commissioner started doing under the Freedom of Information Act 1992 before transition day may be continued on and after transition day by the new Information Commissioner.

Example for this subsection:

If the FOI Act Information Commissioner started dealing with a complaint made against an agency’s decision under the Freedom of Information Act 1992 section 65 before transition day, the new Information Commissioner may continue dealing with the complaint on and after transition day.

(3) Without limiting subsection (1) or (2), anything that the FOI Act Information Commissioner started doing under the Freedom of Information Act 1992 before transition day in the performance of a function that, on and after transition day, is a freedom of information function may be continued on and after transition day by the Information Access Deputy Commissioner acting in accordance with the Freedom of Information Act 1992 section 97B.

42. Legal proceedings

(1) This section applies if —

(a) the FOI Act Information Commissioner is a party to any legal proceedings arising under, or in relation to the administration of, the Freedom of Information Act 1992; and

(b) the proceedings have commenced, but not been finally determined, before transition day.

(2) On and from transition day, the new Information Commissioner is taken to be a party to the proceedings instead of the FOI Act Information Commissioner.

43. Information and records

At the beginning of transition day, the information and records of the FOI Act Information Commissioner become information and records of the new Information Commissioner and the new Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner may hold, record, use or disclose the information and records for the purposes of performing their functions.

44. Application of Financial Management Act 2006 Part 5 Division 3

For the purposes of the Financial Management Act 2006 Part 5 Division 3, the department that before transition day was taken under section 5 of that Act to be constituted by the administration of the FOI Act Information Commissioner is taken to be abolished at the beginning of transition day.

45. Transitional regulations

(1) In this section —

specified means specified or described in regulations;

transitional matter —

(a) means a matter or issue of a transitional nature that arises as a result of the enactment of this Act or the coming into operation of any provisions of this Act or regulations made under it; and

(b) includes a savings or application matter.

(2) If there is not sufficient provision in this Part for dealing with a transitional matter, regulations may prescribe anything required, necessary or convenient to be prescribed in relation to the matter.

(3) Without limiting subsection (2), regulations made for the purposes of that subsection may provide that specified provisions of an information Act —

(a) do not apply to, or in relation to, a specified matter or thing; or

(b) apply with specified modifications to, or in relation to, a specified matter or thing.

(4) If regulations made for the purposes of subsection (2) provide that a specified state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in accordance with the Interpretation Act 1984 section 41(1)(a) but not earlier than transition day, the regulations have effect according to their terms.

(5) If regulations made for the purposes of subsection (2) contain a provision of a kind described in subsection (4), the provision does not operate so as —

(a) to affect in a manner prejudicial to any person (other than the State or an authority of the State) the rights of that person existing before the day of publication of those regulations; or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.

Part 7 — Other Acts amended

Division 1 — Constitution Acts Amendment Act 1899 amended

46. Act amended

This Division amends the Constitution Acts Amendment Act 1899.

47. Schedule V amended

In Schedule V Part 1 Division 2 delete the item relating to the Information Commissioner and insert:

Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner appointed under the Information Commissioner Act 2024.

[Division 2 will not come into operation 1]

Division 3 — Financial Management Act 2006 amended

50. Act amended

This Division amends the Financial Management Act 2006.

51. Section 5 amended

(1) In section 5(1):

(a) in paragraph (d) delete “Investigations;” and insert:

Investigations,

(b) delete paragraph (e).

(2) In section 5(2) delete “subsection (1)” and insert:

subsection (1), or to a department of the Public Service known as the Office of the Information Commissioner,

52. Schedule 2 heading replaced

Delete the heading to Schedule 2 and insert:

Schedule 2 — Modifications to the Act as to certain administrations and the Office of the Information Commissioner

[s. 5(2)]

53. Schedule 2 amended

In Schedule 2 delete the item for section 54 and insert:

54	54. (1) The accountable authority of —
	(a) the agency taken to be constituted under section 5(1) by the administration of the Legislative Council is the Clerk of the Legislative Council; or
	(b) the agency taken to be constituted under section 5(1) by the administration of the Legislative Assembly is the Clerk of the Legislative Assembly; or
	(c) the agency taken to be constituted under section 5(1) by the administration of the Parliamentary Services Department is the Executive Manager (however designated) of the Parliamentary Services Department; or
	(d) the agency taken to be constituted under section 5(1) by the administration of the Parliamentary Commissioner for Administrative Investigations is the chief executive officer of the department of the Public Service principally assisting in the administration of the Parliamentary Commissioner Act 1971; or
	(e) an agency taken to be constituted under section 5(1) by the administration of a body or office that is the subject of regulations referred to in that provision is the person appointed, in writing, by the Treasurer to be the accountable authority of that agency; or
	(f) a department of the Public Service known as the Office of the Information Commissioner is the Information Commissioner appointed under the Information Commissioner Act 2024.

Division 4 — Freedom of Information Act 1992 amended

Subdivision 1 — Main amendments

54. Act amended

This Subdivision amends the Freedom of Information Act 1992.

55. Part 4 Divisions 1 and 2 deleted

Delete Part 4 Divisions 1 and 2.

56. Section 66 amended

(1) In section 66(1):

(a) delete paragraph (a) and insert:

(a) be given in writing to the Information Commissioner; and

(b) in paragraph (d) delete “regulations; and” and insert:

regulations.

(2) In section 66(2) and (3) delete “lodge” and insert:

make

(3) In section 66(4) delete “Commissioner may allow a complaint to be lodged” and insert:

Information Commissioner may allow a complaint to be made

57. Section 75 amended

In section 75(2) delete “member of the staff of the Commissioner in the course of the performance of his or her duties as a member of that staff,” and insert:

member of Commissioner staff in the course of the performance of their duties as a member of Commissioner staff

58. Part 4 Division 4 heading deleted

Delete the heading to Part 4 Division 4.

59. Sections 79 and 80 replaced

Delete sections 79 and 80 and insert:

Commissioner may give notice of officer’s conduct

If in dealing with a complaint the Information Commissioner forms the opinion that there is evidence that an officer of an agency has been guilty of a breach of duty, or of misconduct, in the administration of this Act, the Commissioner may take such steps as the Commissioner considers appropriate to bring the evidence to the notice of —

(a) if the person is the principal officer of the agency but is not a Minister — the Minister responsible for the agency; or

(b) if the person is the principal officer of a contractor or subcontractor — the Minister to whom the administration of the Court Security and Custodial Services Act 1999, the Declared Places (Mentally Impaired Accused) Act 2015 or the Prisons Act 1981 is committed, as is relevant to the case; or

(d) in any other case — the principal officer of the agency.

60. Section 81 amended

In section 81(1) and (2) delete “Commissioner for the purposes of Division 3.” and insert:

Information Commissioner for the purposes of this Division.

Note: The heading to amended section 81 is to read:

Disclosure of information and giving of evidence to Commissioner

61. Section 82 deleted

Delete section 82.

62. Section 83 amended

In section 83:

(a) delete “Division 3” and insert:

this Division

(b) in paragraph (c) before “Commissioner” insert:

Information

63. Part 5A inserted

After section 97 insert:

Part 5A — Administration

97A. Functions of Information Commissioner and Information Access Deputy Commissioner under this Act

(1) The Information Commissioner has the following functions under this Act —

(a) to deal with complaints made under Part 4 about decisions made by agencies in respect of access applications and applications for amendment of personal information;

(b) to ensure that agencies are aware of their responsibilities under this Act;

(d) to provide assistance to members of the public and agencies on matters relevant to this Act;

(e) any other function given to the Information Commissioner under this Act.

(2) The Information Access Deputy Commissioner also has all the functions of the Information Commissioner under this Act, other than the following —

(a) giving a direction under section 97B(3);

(b) any function under section 111 in relation to a report referred to in that section.

Note for this section:

The Information Commissioner Act 2024 sections 25 and 26 provide for the functions of the Information Commissioner and Information Access Deputy Commissioner generally.

97B. Performance of freedom of information functions

(1) The functions under this Act that are functions of both the Information Commissioner and the Information Access Deputy Commissioner are the freedom of information functions.

(2) A freedom of information function may be performed —

(a) by the Information Commissioner; or

(b) by the Information Access Deputy Commissioner, subject to any direction given under subsection (3).

(3) The Information Commissioner may direct the Information Access Deputy Commissioner as to —

(a) which of the freedom of information functions the Information Access Deputy Commissioner is to perform; and

(b) the manner in which the Information Access Deputy Commissioner must perform any freedom of information function.

(4) If the Information Access Deputy Commissioner performs a freedom of information function —

(a) the Information Access Deputy Commissioner performs the function in the Information Access Deputy Commissioner’s own right and not on behalf of the Information Commissioner; and

(b) the Information Access Deputy Commissioner may perform the function upon the Information Access Deputy Commissioner’s own belief or state of mind (to the extent that the performance or exercise is dependent on the belief or state of mind of the Information Commissioner); and

(c) the performance of the function is as effectual for all purposes as if it were performed by the Information Commissioner; and

(d) a reference in this Act or another written law to anything done by, to, or in relation to, the Information Commissioner in connection with the function includes a reference to the thing as done by, to, or in relation to, the Information Access Deputy Commissioner; and

(e) the Information Commissioner is not prevented from performing the same function on another occasion (in relation to a different matter).

97C. Certain functions cannot be delegated

The following functions cannot be delegated by the Information Commissioner or the Information Access Deputy Commissioner under the Information Commissioner Act 2024 section 28 —

(a) requiring an agency to produce a document for inspection under section 75(1);

(b) any function under section 76 in relation to dealing with a complaint;

64. Section 111 amended

(1) Delete section 111(1).

(2) In section 111(2) delete “The report is to include in relation to each agency — ” and insert:

Without limiting the Information Commissioner Act 2024 section 32, the Information Commissioner must include the following information in the annual report required under that section in relation to each agency for the financial year —

(3) In section 111(2) after each of paragraphs (a) to (k) delete “and”.

(4) Delete section 111(3)(a) and insert:

(a) provide the Information Commissioner with such information as the Commissioner requires for the purposes of this section; and

(5) Delete section 111(4) and (5).

65. Glossary clause 1 amended

In the Glossary clause 1 insert in alphabetical order:

freedom of information functions has the meaning given in section 97B(1);

Information Access Deputy Commissioner means the person appointed as Information Access Deputy Commissioner under the Information Commissioner Act 2024 section 9(2);

Information Commissioner means the person appointed as Information Commissioner under the Information Commissioner Act 2024 section 5(2);

member of Commissioner staff means a member of staff as defined in the Information Commissioner Act 2024 section 3;

66. Various references to “Commissioner” amended

Amend the provisions listed in the Table as set out in the Table.

Table

Provision	Delete	Insert
s. 13(3) and (4)<br>s. 66(6)<br>s. 68(1)<br>s. 69(2) and (3)<br>s. 70(4), (5) and (6)<br>s. 71(1) and (3)<br>s. 74(2)<br>s. 76(1), (2), (4), (5), (6), (7) and (8)<br>s. 77(1), (4) and (7)<br>s. 78(1), (4) and (5)<br>s. 85(1), (2)(a), (3) and (4)<br>s. 89(3)<br>s. 97(2)	Commissioner	Information Commissioner
s. 13(5) and (7)<br>s. 35(1)<br>s. 48(3) and (4)<br>s. 67(1) and (2)<br>s. 69(4)<br>s. 70(1), (2) and (3)<br>s. 71(2)<br>s. 72(1), (2) and (3)<br>s. 73(1)<br>s. 74(1)<br>s. 75(1) and (2)<br>s. 76(3)<br>s. 77(3)<br>s. 84<br>s. 85(5)<br>s. 103(c)	Commissioner (1st occurrence)	Information Commissioner
s. 78(2)<br>s. 87(1)(a), (b) and (c)	Commissioner’s	Information Commissioner’s

Subdivision 2 — Amendment linked to commencement of Criminal Law (Mental Impairment) Act 2023

67. Act amended

This Subdivision amends the Freedom of Information Act 1992.

68. Section 79 amended

In section 79(b) delete “(Mentally Impaired Accused)” and insert:

(Mental Impairment)

Division 5 — Parliamentary Commissioner Act 1971 amended

69. Act amended

This Division amends the Parliamentary Commissioner Act 1971.

70. Schedule 1 amended

In Schedule 1 delete the item relating to the Freedom of Information Act 1992 and insert:

Information Commissioner Act 2024	Information Commissioner. Information Access Deputy Commissioner. Privacy Deputy Commissioner.

Division 6 — State Records Act 2000 amended

71. Act amended

This Division amends the State Records Act 2000.

72. Section 58 amended

Delete section 58(b) and insert:

(b) the person who is the Information Commissioner, or who is acting in that office, under the Information Commissioner Act 2024; and

View image in the official source

Notes

This is a compilation of the Information Commissioner Act 2024. For provisions that have come into operation see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Information Commissioner Act 2024	52 of 2024	6 Dec 2024	Pt. 1: 6 Dec 2024 (see s. 2(1)(a)); Pt. 5 (other than s. 32 to 34) and Pt. 6: 7 Dec 2024 (see s. 2(1)(b)); Pt. 2‑4, s. 32 to 34 and Pt. 7: 1 Jul 2025 (see s. 2(1)(c)(i) and (d) and SL 2025/102 cl. 2(a))

Other notes

1 Pt. 7 Div. 2 of this Act did not come into operation and was deleted (see s. 2(2)).

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

Acting Commissioner 17

assent day 2(1)

Commissioner 17

eligible person 3

FOI Act Information Commissioner 36(1)

FOI Act staff member 36(1)

freedom of information functions 3

Information Access Deputy Commissioner 3

information Act 3

Information Commissioner 3

information official 3

member of staff 3

new Information Commissioner 36(1)

Privacy Deputy Commissioner 3

privacy functions 3

specified 45(1)

transitional matter 45(1)

transition day 36(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Information Commissioner Act 2024

Western Australia

Information Commissioner Act 2024

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 3
Act binds Crown 4

Part 2 — Appointment of Information Commissioner and Deputy Commissioners

Division 1 — Information Commissioner

Appointment of Information Commissioner 5
Remuneration and terms and conditions of Information Commissioner 5
Appointment of person to act as Information Commissioner 6
Oath or affirmation of office of Information Commissioner 6

Division 2 — Information Access Deputy Commissioner

Appointment of Information Access Deputy Commissioner 6
Remuneration and terms and conditions of Information Access Deputy Commissioner 7
Appointment of person to act as Information Access Deputy Commissioner 8
Oath or affirmation of office of Information Access Deputy Commissioner 8

Division 3 — Privacy Deputy Commissioner

Appointment of Privacy Deputy Commissioner 9
Remuneration and terms and conditions of Privacy Deputy Commissioner 9
Appointment of person to act as Privacy Deputy Commissioner 10
Oath or affirmation of office of Privacy Deputy Commissioner 10

Division 4 — General provisions about appointment of Information Commissioner and Deputy Commissioners

Terms used 11
Persons eligible for appointment 11
When office becomes vacant 11
Resignation 12
Suspension or removal from office 12
Outside employment 13
Public service officer appointed as Commissioner 13

The Act organises oversight through three linked but discrete concepts: statutory officeholders, public service support staff, and the delineation of functions between freedom of information and privacy.

Statutory officeholders: The Act creates three offices , Information Commissioner, Information Access Deputy Commissioner and Privacy Deputy Commissioner , each appointed by the Governor (ss 5(2), 9(2), 13(2)). Those offices are statutory, not public service positions (ss 5(3), 9(4), 13(4)). Eligibility is limited to persons with legal experience: either a legal practitioner of at least five years’ standing or someone the Governor considers legally qualified and experienced (s 18). Appointment instruments specify terms up to five years and allow one reappointment (ss 5(4)-(6), 9(5)-(6), 13(5)-(6)). Acting appointments are permitted (ss 7, 11, 15) and the Governor determines remuneration and terms with protections against mid‑term reductions in pay (ss 6(1)-(3), 10(1)-(3), 14(1)-(3)). The Governor may suspend or remove a Commissioner on addresses from both Houses of Parliament and may suspend where certain incapacity or misconduct grounds exist (s 21).

Division of functions: The Information Commissioner holds both freedom of information functions and privacy functions (s 25(1)(a)-(b)). The deputy offices are specialists: the Information Access Deputy Commissioner holds the freedom of information functions (s 26(1)(a)) and the Privacy Deputy Commissioner holds the privacy functions (s 27(1)(a)). The inserted FOI Part 5A clarifies that FOI functions are functions of both the Information Commissioner and the Information Access Deputy Commissioner (new s 97B(1)-(2)) and allows the Information Commissioner to direct the Information Access Deputy on allocation and manner of FOI functions (new s 97B(3)). New s 97C makes certain FOI functions non‑delegable: requiring an agency to produce a document for inspection under FOI s 75(1); functions under FOI s 76 dealing with complaints; and functions concerning exemption certificates under s 77. The PRIS Act is referenced for the meaning and performance of privacy functions (not contained in this Act), specifically PRIS s 142 and s 143 (see ss 27 and 28(3)).

Staff and resources: Members of staff supporting the offices are public service officers appointed or made available under the Public Sector Management Act 1994 (s 29). The Information Commissioner may make arrangements to use public service employees or State agency facilities on agreed terms (s 30). The Information Commissioner may also engage external service providers on terms determined by the Commissioner (s 31). Delegation of powers to members of staff is permitted but regulated: delegations must be in writing and signed (s 28(4)), cannot be sub‑delegated (s 28(5)), and certain powers are excluded from delegation by reference to FOI and PRIS provisions (s 28(1)-(3)).

Secrecy, authorised disclosure and liability protection: The Act introduces an offence for information officials who record, disclose or use information obtained under an information Act (s 33(1)), with a fine of $6 000. Authorised uses are exhaustively listed (s 33(3)), and the section does not supplant FOI s 74 (s 33(4)). Section 34 provides immunity from personal civil or criminal liability for information officials acting in good faith in performing functions under an information Act, while preserving any State liability (s 34(3)).

Transitional continuity: Part 6 sets out that the FOI Act Information Commissioner, acting appointments and staff become the new officials or public service officers on transition day, with protections for accrued rights and superannuation, and provides that pre‑transition work, records and proceedings continue under the new offices (ss 37-44). Transitional regulations may address any gaps and can have retrospective effect back to transition day but are subject to non‑prejudice protections (s 45(2)-(5)).

Interplay with other legislation: The Act is explicitly an information Act alongside the FOI Act and the PRIS Act (s 3). Commencement is tied to provisions of the PRIS Act and to certain provisions of the Criminal Law (Mental Impairment) Act 2023 (s 2). Amendments are made to the FOI Act, Parliamentary Commissioner Act 1971 and State Records Act 2000, and to the Financial Management Act 2006, to integrate the new offices into existing governance and financial frameworks (Part 7, Divisions 1, 3, 4, 5, 6).

Incentives and constraints embedded in the statutory design include gubernatorial appointment and removal on parliamentary address (s 21), powers assigned to the Information Commissioner to direct deputies (new FOI s 97B(3)), and statutory limits on delegation for particular FOI matters (new s 97C). The Act puts the Information Commissioner at the reporting nexus for both FOI and PRIS Act administration (s 32), which centralises oversight and creates reporting obligations on agencies (amendments to FOI s 111, s 64).

Primary officeholders: The Act directly determines the status, appointment, entitlements and removal procedures for the Information Commissioner, the Information Access Deputy Commissioner and the Privacy Deputy Commissioner (Part 2). Persons eligible for appointment must have legal practitioner experience of at least five years or be judged suitable by the Governor on legal qualifications and experience (s 18). Officeholders will hold non‑public service statutory offices, with separate arrangements if a public service officer is appointed to a Commissioner role (s 23).

Public service staff and agencies: Members of staff supporting the offices are public service officers (s 29). Existing FOI Act staff members are converted to public service appointments on transition (s 39), retaining substantive classification levels, terms of appointment (permanent or term), remuneration and accruing rights, including under the State Superannuation Act 2000 (s 39(1)-(3)). Agencies that previously interacted with the FOI Commissioner will now interact with the Information Commissioner and the Information Access Deputy Commissioner as the statutory recipients of complaints and reporting responsibilities (see FOI amendments, s 63 et seq.). The Information Commissioner may use staff in other departments by arrangement (s 30), which affects relevant employing departments and their budgets for secondments or shared services.

Ministers and principal officers: The FOI amendments change how misconduct or breaches of duty by agency officers discovered via FOI complaint handling are notified (replacement of FOI ss 79-80, s 59). If the Commissioner forms the view that an officer has breached duty or been guilty of misconduct, the Commissioner may notify, depending on the status of the person, the Minister responsible, Parliament, or the principal officer of the agency (replacement s 79). That alters reporting lines and accountability pathways for agency leadership and Ministers.

Agencies subject to FOI and PRIS Act obligations: The Information Commissioner must prepare an annual report addressing operation of the FOI Act and PRIS Act Part 2 and Schedule 1, and must include in the annual report the information required by FOI s 111 and PRIS s 146 (s 32(1)-(2)). The FOI s 111 amendments (s 64) impose an explicit obligation on agencies to provide information required by the Information Commissioner for annual reporting (s 64(4) as amended). Agencies will therefore have operational reporting obligations and information‑providing duties to the Commissioner.

Legal practitioners and complainants: The changes to FOI complaint procedures (s 56 amending FOI s 66 to require complaints be given in writing to the Information Commissioner and to change language from “lodge” to “make”) affect how members of the public, applicants and their advisers make complaints. The new Part 5A sets out that the Information Commissioner is to deal with complaints under Part 4 concerning access applications and amendment requests, and to assist members of the public and agencies (new s 97A).

Contractors and service providers: Where contractors or subcontractors are involved in the delivery of agency functions, the new s 79(b) (replacement) specifically contemplates the principal officer of a contractor or subcontractor and refers to Ministers relevant to custodial and declared places (s 59 replacement s 79(b)). The Information Commissioner’s engagement of external service providers under s 31 gives the Commissioner discretion to contract for expertise, which will affect procurement and contract management.

The State’s financial administrators: Remuneration and acting commissioner payments are charged to the Consolidated Account (ss 6(4), 10(4), 14(4), 24(4)), and the Financial Management Act 2006 is amended to recognise a department known as the Office of the Information Commissioner (Part 7 Division 3, ss 50-53). That places budgetary and accountability interaction with Treasury and related financial governance structures.

Courts and litigants in pending proceedings: Transitional provisions assign ongoing legal proceedings involving the FOI Act Information Commissioner to the new Information Commissioner (s 42), so parties to those proceedings are affected. The Act preserves continuity of pre‑transition actions (ss 41-42).

The public: The Information Commissioner is required to make the public aware of the FOI Act and PRIS Act rights and provide assistance (new FOI s 97A(1)(c)-(d)). The statutory secrecy offence (s 33) and the immunity for information officials (s 34) affect both public‑facing information disclosure practices and individuals whose information may be handled by information officials.

In sum, the Act reshapes who holds decision‑making authority (Governor‑appointed statutory Commissioners), who provides operational support (public service staff), which agencies answer to the Commissioner for reporting, and how contractors and Ministers are drawn into reporting lines for misconduct discovered through FOI processes.

Appointment and tenure rights: Commissioners are appointed by the Governor (ss 5(2), 9(2), 13(2)). Each Commissioner holds office for a period up to five years as specified in the instrument of appointment and is eligible for reappointment once (ss 5(4)-(6), 9(5)-(6), 13(5)-(6)). The Governor determines remuneration and terms, subject to the Salaries and Allowances Act 1975, and remuneration cannot be reduced during a term without the Commissioner’s consent (ss 6(1)-(3), 10(1)-(3), 14(1)-(3)). Public service officers appointed as Commissioners retain accruing rights including superannuation and may be treated as continuing service for State Superannuation Act purposes (s 23).

Oath/affirmation and secrecy obligations: Before performing functions for the first time, each Commissioner and acting Commissioner must take an oath or affirmation administered by the Governor, pledging faithful and impartial performance and not divulging information received except in accordance with an information Act (ss 8(1)-(2), 12(1)-(2), 16(1)-(2)). Information officials more broadly are subject to a secrecy offence that forbids recording, disclosure or use of information obtained in administration of an information Act, subject to authorised exceptions (s 33(1)-(4)). The secrecy offence carries a financial penalty (fine of $6 000) (s 33(1)).

Functional duties: The Information Commissioner’s functions include the FOI functions, the privacy functions, and other functions given under an information Act or another written law (s 25(1)(a)-(c)). The Information Access Deputy Commissioner must perform the freedom of information functions and any other functions given under a written law (s 26(1)), and the Privacy Deputy Commissioner has the privacy functions (s 27(1)). Under the inserted FOI Part 5A, the Information Commissioner must deal with complaints under Part 4 about agency decisions on access and amendment applications; ensure agencies and the public are aware of their responsibilities and rights under the FOI Act; and provide assistance to the public and agencies (new s 97A).

Delegation rights and limits: Each Commissioner may delegate powers or duties to a member of staff, but the delegation must be in writing and signed (s 28(4)), cannot be sub‑delegated (s 28(5)), and the statute forbids delegating particular FOI and PRIS functions (s 28(1)-(3) and new FOI s 97C). The Act preserves the officeholder’s ability to perform functions through an officer or agent (s 28(7)).

Information handling and authorised disclosure: Authorised recording, disclosure or use of information by an information official is set out in s 33(3). Permitted circumstances include performing a function under an information Act or other written law, compliance with FOI or other law, legal proceedings arising from administration of an information Act, written consent of the person to whom the information relates, and circumstances prescribed by regulation (s 33(3)(a)-(e)). Section 33(4) clarifies that these authorised uses do not affect FOI s 74.

Reporting duties: The Information Commissioner must prepare and submit an annual report on the operation of the FOI Act and PRIS Act Part 2 and Schedule 1 and on the operations of the Commissioner and Deputy Commissioners (s 32(1)). The annual report must include the FOI s 111 and PRIS s 146 information (s 32(2)); specific amendments to FOI s 111 impose obligations on agencies to provide information to the Commissioner (s 64).

Protection from liability: Information officials are protected from civil or criminal liability for acts done in good faith in performance or purported performance of functions under an information Act (s 34(1)), with the protection extending to omissions (s 34(4)). The State remains liable for acts of information officials (s 34(3)).

Administrative powers: The Information Commissioner may engage staff (s 29), use public service staff and facilities by arrangement (s 30), engage external service providers on terms and conditions the Commissioner decides (s 31) and make regulations via the Governor (s 35). The Governor may appoint and set terms for Acting Commissioners (s 24).

Removal and suspension rights: A Commissioner may resign at any time (s 20). The Governor may suspend or remove a Commissioner on addresses from both Houses of Parliament; suspension can occur on grounds of incapacity, incompetence, insolvency or misconduct as defined under the Corruption, Crime and Misconduct Act 2003 (s 21). If suspended, a Commissioner is restored unless the Houses pass addresses requesting removal within prescribed sittings (s 21(3)).

Transitional and continuity rights: Pre‑transition FOI arrangements, staff classifications and accrued rights are preserved on transition day; the FOI Commissioner becomes the Information Access Deputy Commissioner until the end of the appointed term (s 37), and FOI staff become public service officers at the same classification and with same remuneration and superannuation rights (s 39). Pre‑transition legal proceedings involving the FOI Commissioner are transferred to the new Information Commissioner (s 42). Transitional regulations may be made to address gaps (s 45).

Taken together, the Act creates a set of statutory powers, reporting obligations, confidentiality rules, and delegation frameworks that define what Commissioners and agencies must do and what protections Commissioners and information officials have when acting in good faith.

Statutory penal provision: The Act establishes a specific secrecy offence for information officials. Section 33(1) makes it an offence for an information official to record, disclose or use information obtained in administering an information Act, with a monetary penalty specified: a fine of $6 000. That is the only express pecuniary penalty provided in the text of this Act.

Authorised exceptions and enforcement boundary: Section 33(2)-(3) provides a broad list of authorised circumstances that negate the secrecy offence. Those exceptions include disclosure for the purpose of performing a function under an information Act or another written law; disclosures permitted or required by an information Act or another written law; disclosures for legal proceedings arising from administration of an information Act or other written law; disclosures with the written consent of the person to whom the information relates; and circumstances prescribed by regulation (s 33(3)(a)-(e)). Practically, this means enforcement of the secrecy offence requires a factual assessment of whether a particular recording, disclosure or use falls outside one of the listed exceptions.

Relation to the FOI Act: Section 33(4) clarifies that the secrecy provisions do not affect the operation of FOI s 74. That preserves existing FOI protections and procedural mechanisms in relation to use and disclosure of exempt material that FOI s 74 addresses. Any enforcement action under s 33 therefore must be read against the continued operation of FOI s 74.

Administrative enforcement and notifications: The Act gives the Information Commissioner powers to take steps in relation to officer conduct when dealing with an FOI complaint. Replacement FOI s 79 (inserted by s 59 of this Act) allows the Commissioner to bring evidence that an agency officer has been guilty of breach of duty or misconduct to the notice of either the responsible Minister (if the person is principal officer but not a Minister), the Minister relevant to specified custodial legislation (if a contractor or subcontractor principal officer), Parliament (if the person is a Minister) or the agency principal officer (s 59, replacement s 79). Those reporting pathways are administrative enforcement mechanisms designed to trigger other accountability processes rather than criminal sanction.

Removal, suspension and parliamentary oversight: A Commissioner may be suspended or removed by the Governor on addresses from both Houses of Parliament (s 21(1)). The Governor may suspend a Commissioner where, for example, the Commissioner is incapable of performing duties, has shown incompetence or neglect, is bankrupt, or has been guilty of misconduct as defined in the Corruption, Crime and Misconduct Act 2003 s 4 (s 21(2)). A suspended Commissioner is restored unless a statement of grounds is tabled and each House passes an address requesting removal within specified timeframes (s 21(3)). Thus, enforcement against Commissioners occurs via political and constitutional mechanisms rather than through criminal proceedings in most cases.

Immunity and State liability: Section 34 provides that no civil or criminal liability is incurred by an information official for anything done in good faith in performing or purportedly performing a function under an information Act. That immunity insulates officials from personal civil or criminal exposure for good‑faith acts, but preserves any liability of the State (s 34(3)). Enforcement actions against officials personally therefore require proof that the act was not done in good faith or falls outside the protective scope of s 34.

Regulatory enforcement: The Governor is authorised to make regulations (s 35) and transitional regulations (s 45), including prescribing circumstances in which disclosure is authorised (s 33(3)(e) references prescribed circumstances). Regulations may also provide transitional savings and applications (s 45(2)-(5)). Regulatory instruments can therefore create further enforceable requirements or exceptions and may affect enforcement options.

Practical enforcement pathway: In practice, enforcement of confidentiality breaches will likely be a mixture of administrative disciplinary action by employing agencies (consistent with public sector employment law), potential prosecution for breaches of s 33 where a disclosure falls outside authorised exceptions and is proven, political accountability via parliamentary addresses for Commissioners, and potential civil claims where immunity under s 34 does not apply (for example, where there is no good faith). The Act sets a defined financial penalty for secrecy breaches but leaves many enforcement and corrective actions to non‑criminal administrative processes.

Inter‑Act definitions and cross‑references: The Act explicitly defines an information Act to include itself, the FOI Act and the PRIS Act (s 3), thereby creating a triad of statutes operating together. The Information Commissioner’s functions are expressly linked to functions defined in the FOI Act (freedom of information functions) and in the PRIS Act (privacy functions) (s 25(1), notes at ss 26 and 27 referencing FOI s 97B and PRIS s 142 respectively). Delegation limits in s 28 refer to non‑delegable functions set out in PRIS s 143 and FOI s 97C.

Amendments to the Freedom of Information Act 1992: Part 7 Division 4 Subdivision 1 contains multiple amendments to the FOI Act:

Deletion of Part 4 Divisions 1 and 2 (s 55).
Changes to complaint procedures and whom complaints are given to (s 56 amending FOI s 66 to require complaints be given in writing to the Information Commissioner).
Replacement of FOI ss 79-80 to reframe how the Commissioner may notify evidence of officer misconduct (s 59).
Deletion of FOI s 82 and various small textual adjustments (ss 61-62).
Insertion of a new Part 5A (ss 63) containing ss 97A-97C that define the administrative relationship between the Information Commissioner and the Information Access Deputy Commissioner, how FOI functions are performed (including directions from the Information Commissioner to the Deputy under new s 97B(3)), and non‑delegable FOI functions (new s 97C).
Amendments to s 111 of the FOI Act to embed the Information Commissioner’s annual reporting role and agency obligations to provide information (s 64).

Integration with the Privacy and Responsible Information Sharing Act 2024: The Act links its commencement and operation to the PRIS Act. Section 2(1)(d) makes the bulk of the Act commence on the day PRIS Part 2 Division 12 comes into operation. The Privacy Deputy Commissioner’s functions are defined by reference to PRIS s 142 (s 27 note), and s 28 disallows delegation of functions that cannot be delegated because of PRIS s 143. The Act therefore assumes PRIS will provide the detailed mechanics for privacy functions and cross‑refers to those provisions.

Financial framework alignment: Part 7 Division 3 amends the Financial Management Act 2006 to recognise a department known as the Office of the Information Commissioner, alter s 5 and Schedule 2 headings and specify the accountable authority in Schedule 2 (ss 50-53). Remuneration charges for Commissioners and Acting Commissioners are appropriated to the Consolidated Account (ss 6(4), 10(4), 14(4), 24(4)), which places these offices within the State financial management regime.

Parliamentary Commissioner Act 1971 and State Records Act 2000: Division 5 amends Schedule 1 of the Parliamentary Commissioner Act 1971 to add the new offices (s 70). Division 6 amends the State Records Act 2000 s 58 to refer to the Information Commissioner or acting officeholder under this Act (s 72). These amendments ensure the new offices are recognised in records and parliamentary oversight contexts.

Interaction with Criminal Law (Mental Impairment) Act 2023: The Act’s commencement provisions in s 2 link certain parts to specific provisions of the Criminal Law (Mental Impairment) Act 2023 (s 2(1)(c)). There is an express contingency: if Criminal Law (Mental Impairment) Act s 410(2) comes into operation before Part 7 Division 2 comes into operation, Part 7 Division 2 does not come into operation and is deleted (s 2(2)). That linkage affects the timing and conceptual fit of some FOI amendments and reflects a statutory sequencing dependency.

Transitional continuity with FOI Act instruments and processes: Part 6 ensures that things done under the FOI Act prior to transition day are taken to have been done by, to or in relation to the new Information Commissioner as necessary to continue effect (s 41). Acting FOI appointments and ongoing proceedings are assigned to the new offices (ss 38, 42). FOI staff become public service officers (s 39). Transitional regulations may modify the application of provisions where insufficient transitional detail exists (s 45).

Limits on delegation and non‑delegable functions: The Act cross‑references FOI and PRIS provisions that prohibit delegation of specific functions. Section 28 excludes the power of delegation for any function that cannot be delegated because of PRIS s 143 or FOI s 97C. New FOI s 97C explicitly lists certain FOI functions that cannot be delegated , producing documents for inspection under FOI s 75(1), functions under FOI s 76 dealing with complaints, and functions relating to exemption certificates under FOI s 77. These cross‑references produce an integrated rule set on delegation.

Relationship with FOI s 74 and use/disclosure rules: The secrecy offence and authorised use provisions in s 33 explicitly preserve the operation of FOI s 74 (s 33(4)). That ensures existing statutory protections and permitted uses under FOI s 74 are not unintentionally overridden.

Taken together, the Act is designed to operate as part of a three‑legged statutory framework (this Act, the FOI Act and the PRIS Act). Its cross‑references, commencement linkages and amendments embed the new offices into the financial, records, parliamentary and FOI/PRIS systems currently in statute.

The Act itself records a compilation table and a brief chronology of assent and commencement dates in the Notes. The Information Commissioner Act 2024 (No. 52 of 2024) received assent on 6 December 2024 (compilation table). Commencement is phased and linked to commencement of provisions in other Acts (s 2):

Part 1 commenced on assent day, 6 December 2024 (s 2(1)(a)).
Part 5 (but only s 35 , regulations) and Part 6 commenced the day after assent day, 7 December 2024 (s 2(1)(b)).
Part 7 Division 4 Subdivision 2 has a conditional commencement linked to when Criminal Law (Mental Impairment) Act 2023 s 325 comes into operation; if that occurs on or before the day on which s 59 of this Act comes into operation, the division commences immediately after s 59; otherwise it commences when Criminal Law (Mental Impairment) Act s 325 comes into operation (s 2(1)(c)).
The remainder of the Act (Parts 2-4, s 32-34 and Part 7) came into operation on 1 July 2025, by s 2(1)(d) and reflected in SL 2025/102 cl. 2(a) (compilation table).

A specific deletion note: Part 7 Division 2 did not come into operation and was deleted (s 2(2) and Other notes item 1). The compilation table records the dates and indicates the transitional provisions in Part 6 were brought into effect soon after assent to ensure continuity for FOI administration.

Amendments to other Acts are implemented within this Act (Part 7). Notable changes effected by this Act include:

Constitution Acts Amendment Act 1899 Schedule V updated to replace the item relating to the FOI Information Commissioner with the new trio of offices (s 47).
Financial Management Act 2006 amendments to s 5 and Schedule 2 to recognise an Office of the Information Commissioner and amend the Schedule 2 heading (ss 50-52) and further amendments to Schedule 2 to identify accountable authorities (s 53).
Freedom of Information Act 1992: Part 4 Divisions 1 and 2 deleted (s 55); multiple sections amended including s 66 (complaints), s 75 (language modernisation), replacement of ss 79-80, deletion of s 82, and insertion of Part 5A (ss 56-63, 59-63). Section 111 is amended to align annual reporting and information obligations (s 64). The FOI glossary is updated to add defined terms imported from this Act (s 65). Various textual substitutions replace the generic term Commissioner with Information Commissioner at multiple FOI provisions (s 66).
Parliamentary Commissioner Act 1971 Schedule 1 updated to add the new offices (ss 69-70).
State Records Act 2000 s 58 amended to reflect the new Information Commissioner (ss 71-72).

Transitional provisions are extensive (Part 6) and specify how existing FOI Commissioner appointments, acting appointments, staff, arrangements and ongoing matters convert into the new framework (ss 36-45). For example, the FOI Act Information Commissioner in office immediately before transition day becomes the Information Access Deputy Commissioner on transition day and retains accrued rights, but cannot, in aggregate, exceed 10 years of combined FOI and Information Access Deputy appointments if reappointment would exceed that aggregate (s 37(1), (3)-(4)). FOI staff members become public service officers with the same substantive classification and remuneration, and their appointments are converted to permanent or term appointments consistent with their prior tenure (s 39).

The Act provides a general power for transitional regulations (s 45) to remedy any gaps in the transitional regime, including the capacity to make retrospective transitional regulations back to transition day subject to non‑prejudice protections for private persons (s 45(4)-(5)).

No other amendment history such as later amending Acts or judicially made changes is recorded in the supplied text. The compilation table and notes in the Act are the primary internal record of its own amendment and commencement history.

The text provided for the Information Commissioner Act 2024 contains no case law and records no litigation history. The Act itself makes no reference to any judicial decisions, and Part 6 transitional provisions reference the continuation of legal proceedings (s 42) but do not identify any particular cases. Therefore, based on the statute as supplied, there is no litigation history to report.

Practitioners should note the following practical points from the Act about litigation and proceedings:

Section 42 provides that pending legal proceedings to which the FOI Act Information Commissioner is a party immediately before transition day are transferred to the new Information Commissioner on and from transition day. That is a continuity mechanism rather than a substantive litigation rule and preserves existing proceedings.
Section 34 gives information officials immunity from personal civil or criminal liability for acts done in good faith in performance of an information Act function; however, it expressly preserves any liability of the State (s 34(3)). The statutory immunity could be relevant in litigation context when assessing personal versus State liability.
Section 33 creates a secrecy offence with an express financial penalty which could, if prosecuted, generate litigation concerning the availability of authorised exceptions in s 33(3) and whether the accused acted within them.

Because the Act contains provisions that affect ongoing legal processes (transfers of parties, preservation of acts done under the FOI Act), legal advisers should confirm the current status of particular proceedings and seek to identify whether any transitional regulations have been made under s 45 that affect evidentiary or procedural aspects.

In short, the Act itself does not list or report judicial authority, and the supplied material contains no decided cases interpreting its provisions.

Commencement dependencies and conditional deletions: The bulk of the Act commences only when the PRIS Act Part 2 Division 12 commences (s 2(1)(d)). Several provisions are conditional on the commencement of specific Criminal Law (Mental Impairment) Act 2023 sections (s 2(1)(c)). If those external provisions do not come into force as expected, parts of this Act either will not come into operation or will come into operation later. Section 2(2) contains an express contingency that causes Part 7 Division 2 to be deleted if Criminal Law (Mental Impairment) Act s 410(2) commences first. Practitioners must track commencement instruments closely; transitional planning and obligations tied to transition day (defined in s 36(1)) hinge on the external rollout of the PRIS Act.

Non‑public service status of Commissioners but public service staff supporting them: Commissioners’ offices are not public service offices (ss 5(3), 9(4), 13(4)) while members of staff are public service officers under s 29 and FOI Act staff convert into public service officers on transition day with preservation of classification and remuneration (s 39). This split can create governance, procurement and employment law complexities: the statutory Commissioners will operate with public sector staff subject to Public Sector Management Act rules and employer obligations. If a Commissioner is a former public service officer, s 23 contains provisions treating service as a Commissioner as continuous for certain superannuation and re‑employment entitlements, but conditions in s 23(3)-(4) limit rights where aggregate appointment length would exceed specified thresholds.

Delegation traps and non‑delegable FOI functions: While s 28 permits delegations to members of staff, new FOI s 97C (inserted by this Act) lists FOI functions that cannot be delegated: producing a document for inspection under FOI s 75(1), functions under FOI s 76 in relation to complaints, and matters regarding exemption certificates under s 77. Those are operationally significant because they require the Commissioner or the Information Access Deputy Commissioner personally to perform them, preventing delegation to staff or contractors. Delegations must be in writing and signed (s 28(4)); failure to follow formal requirements could affect the validity of an exercise of power.

Acting appointments and non‑justiciability of validity: Section 24(3) provides that the validity of acts done by a person purporting to act as an Acting Commissioner cannot be questioned on grounds such as defects in the appointment or the absence of an occasion for appointment. That protects administrative continuity but can be unexpected where an acting appointment is irregular. Practitioners should be aware that courts are barred from invalidating actions on those grounds per s 24(3), altering usual judicial review risk profiles for actions taken by Acting Commissioners.

Secrecy offence scope and authorised exceptions: Section 33 creates a secrecy offence with a $6 000 fine, but s 33(3) lists authorised uses including doing acts in the performance of functions under an information Act or other written law and disclosures for legal proceedings. The risk here is mischaracterising an otherwise authorised disclosure as an offence. Agencies and information officials must have clear internal policies and record keeping to evidence authorisation where disclosure occurs. Also s 33(4) states this section does not affect FOI s 74; practitioners must map the interaction between s 33 and FOI s 74 carefully where FOI‑protected material is handled.

Reporting requirements and agency supply obligations: FOI s 111 is amended so that the Information Commissioner’s annual report must include specified agency information and agencies must provide the Commissioner with the information required (s 64(4) inserted as amended). Agencies that do not have reporting systems compatible with the Commissioner’s information requests will need to establish processes quickly. There is no express administrative penalty in this Act for failing to provide required information, but the change shifts a compliance burden onto agencies.

Transition constraints on reappointment: Section 37(4) provides that a person who immediately before transition day was FOI Act Information Commissioner cannot be reappointed as Information Access Deputy Commissioner if that reappointment would result in an aggregate period of appointments (FOI + Information Access Deputy) exceeding 10 years. Practitioners advising incumbents should calculate aggregate service carefully where reappointment is contemplated.

Regulatory retrospective power: Section 45 permits transitional regulations to have retrospective effect to transition day subject to protections in s 45(5) against prejudicing private persons. While this is a standard transitional mechanism, retrospective regulation can create legal uncertainty for acts done in the interim; legal advisers should monitor any regulations made under s 45.

Financial charging and budgetary implications: Remuneration for Commissioners and Acting Commissioners is charged to the Consolidated Account (ss 6(4), 10(4), 14(4), 24(4)), and the Financial Management Act is amended to reflect an Office of the Information Commissioner (Part 7 Division 3). Departments and Treasury must allocate budget lines accordingly, and agencies might encounter new administrative charges or resource reallocations when staff and facilities are made available under s 30.

Scope of delegated contracting: Section 31 allows the Information Commissioner to engage suitably qualified persons to provide services, and the terms are decided by the Commissioner. This confers broad procurement discretion on the Commissioner which will intersect with public procurement rules; lawyers and procurement officers should clarify whether standard procurement rules, probity requirements and State contracts rules apply to such engagements.

Annual reporting timing and parliamentary laying: The Information Commissioner must prepare the annual report as soon as practicable after 30 June each financial year and submit it to the President of the Legislative Council and the Speaker of the Legislative Assembly (s 32(1)). The President or Speaker must cause the report to be laid before the relevant House within 15 sitting days (s 32(4)), which imposes a parliamentary timetable and potential publicity.

In summary, the main practical risks are tied to commencement timing, delegation limits, secrecy and authorised disclosures, the split between non‑public service Commissioners and public service staff, and the transition provisions affecting incumbents and staff. Each of these creates compliance and operational demands that agencies, commissioners and advisers must manage.

Governance and appointment compliance

Track commencements. Identify the relevant commencement dates for the Act, the PRIS Act and any Criminal Law (Mental Impairment) Act provisions. The Act stages commencement (s 2); many duties do not arise until PRIS Part 2 Division 12 commences. Confirm the transition day defined in s 36(1).
Prepare for Governor‑led appointments. Ensure candidates for Commissioner roles meet s 18 eligibility (legal practitioner of at least five years’ standing, or the Governor’s opinion of suitability). Prepare appointment materials for gubernatorial consideration and instruments specifying terms up to five years (ss 5(2), 9(2), 13(2), 5(4), 9(5), 13(5)).
Oaths and affirmations. Make arrangements for oath/affirmation ceremonies before the Governor as required (ss 8(1)-(2), 12(1)-(2), 16(1)-(2)).

Staffing, secondments and facilities

Convert FOI staff and reclassify roles. If your agency has FOI Act staff who will be transitioned, consult s 39. Appointments become public service appointments with the same substantive classification and remuneration. Prepare HR processes to recognise continued service and superannuation rights (s 39(1)-(3)).
Make arrangements to second staff and use facilities. Where the Information Commissioner will use your officers under s 30, document and agree the terms of secondment or shared‑service arrangements in writing (s 30(3)). Ensure workforce and financial managers sign off on agreed terms.
Establish delegation instruments. Where Commissioners or Deputy Commissioners delegate to members of staff, ensure delegations are in writing, signed by the delegating officer, and explicitly identify any limitations or non‑delegable functions (s 28(4)-(6)). Note that new FOI s 97C lists FOI functions that cannot be delegated.

Records, confidentiality and information handling

Update confidentiality practices. Ensure all information officials (as defined in s 3) are trained on s 33’s secrecy offence and s 33(3) authorised exceptions (functions under an information Act, other written law, legal proceedings, written consent, and regulations). Retain evidence of authorisation when disclosure is made.
Preserve FOI s 74 compliance. Design procedures to show that s 33 does not affect obligations and exemptions under FOI s 74 (s 33(4)).
Transfer records appropriately. On transition day, ensure FOI records transfer to the new Information Commissioner as specified in s 43 and that access rights and record management procedures are updated in line with State Records Act amendments (Part 7 Division 6, s 72).

Complaint handling and FOI procedural changes

Amend complaint lodgement processes. Update forms, websites and intake processes so complaints are made in writing to the Information Commissioner per FOI s 66 as amended (s 56). Change language in internal materials from “lodge” to “make” where required.
Recognise non‑delegable complaint functions. Ensure complaint handling processes identify matters that must be handled by the Information Commissioner or Information Access Deputy Commissioner personally (new FOI s 97C , producing documents for inspection under FOI s 75(1), dealing with complaints under FOI s 76, exemption certificate matters under FOI s 77).
Update reporting and notification pathways. Prepare to receive and respond to notices under replacement FOI s 79 (s 59), which require disclosure of officer conduct evidence to Ministers, Parliament or principal officers as specified.

Procurement, contract and service provider management

If the Commissioner proposes to use your agency’s services, finalise memoranda of understanding for staff and facility use (s 30(3)). If the Information Commissioner engages external service providers, expect contractual terms to be set by the Commissioner; adjust procurement and probity workflows accordingly (s 31).
Contractors and subcontractors with agency roles should review likely reporting obligations under replacement FOI s 79(b) where principal officers may be notified about conduct issues.

Financial and reporting obligations

Prepare for annual report information requests. Agencies must provide information the Information Commissioner requires for inclusion in the annual report under FOI s 111 as amended (s 32(2), s 64(4)). Establish data collection, validation and governance processes to respond to Commission requests in a timely manner.
Budget for remuneration and cost impacts. Recognise that Commissioners’ remuneration and acting Commissioner payments are charged to the Consolidated Account (ss 6(4), 10(4), 14(4), 24(4)), and coordinate with Treasury on departmental budget implications of seconded staff or services used under s 30.

Legal and risk management

Review liabilities and insurance. Section 34 grants immunity for good‑faith acts but preserves State liability (s 34(1)-(3)). Review indemnity and insurance arrangements accordingly and ensure adviser‑level legal oversight for sensitive decisions that could be challenged.
Preserve evidence for authorised disclosures. Where disclosures are made under s 33(3) exceptions, document authorisation, legal basis, and consent where applicable to defend against potential prosecution or administrative action.
Monitor transitional regulations. Use s 45 to check for any transitional regulations that modify statutory obligations and may have retrospective effect to transition day; ensure legal teams review any such regulations on publication.

Administrative housekeeping

Update statutory references and policies. Replace references to the old FOI Commissioner with Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner where the FOI Act is amended to reflect new terminology (s 66 and s 65 glossary amendments). Update internal policy documents, websites and staff guidance accordingly.
Train staff on non‑delegable functions and delegation formalities. Ensure that delegations to staff comply with s 28(4) written form and that the limits in new FOI s 97C are clear in role descriptions and procedures.

Parliamentary liaison

Plan for annual report laying. The Information Commissioner must submit the annual report to both Presiding Officers (s 32(1)) and the houses must have it laid within 15 sitting days (s 32(4)). Coordinate with parliamentary liaison officers for timely submission and responses to any follow up.

Practical checklist for agencies

Confirm transition day and check whether PRIS and Criminal Law (Mental Impairment) Act sections have commenced.
Identify FOI staff who will convert to public service officers and process s 39 conversions.
Update FOI complaint and intake forms to the Information Commissioner’s API: complaints in writing to the Information Commissioner (amended FOI s 66).
Create delegation registers with signed delegation instruments (s 28(4)).
Revise confidentiality and disclosure policies to align with s 33 authorised exceptions and maintain records of authorisation.
Prepare data collection templates to meet Information Commissioner annual report requirements (amended FOI s 111).
Negotiate any staff/facility secondments and work out cost recovery and remuneration arrangements (s 30).
Ensure procurement teams understand the Information Commissioner’s ability to contract under s 31 and confirm probity arrangements.
Advise Ministers and principal officers about the new reporting pathways under replacement FOI s 79.
Instruct legal teams to monitor transitional regulations under s 45 and any subsequent regulations made under s 35.

Following this procedural roadmap will align agency processes with the statutory design in the Information Commissioner Act 2024, reduce the risk of inadvertent non‑compliance, and ensure smooth continuity of FOI and privacy oversight during and after transition.

Deep Dive

What it does

Current sections