Western Australia: Information Commissioner Act 2024 (WA)

Western Australia Information Commissioner Act 2024 Western Australia Information Commissioner Act 2024 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 4. Act binds Crown 1 Part 5 — Miscellaneous 35. Regulations 1 Part 6 — Transitional provisions 36. Terms used 1 37. FOI Act Information Commissioner to continue as Information Access Deputy Commissioner 1 38. Acting FOI Act Information Commissioner to continue as Acting Information Access Deputy Commissioner 1 39. FOI Act staff members to be appointed as public service officers 1 40. Arrangements for use of staff continued 1 41. Things done or started under Freedom of Information Act 1992 before transition day 1 42. Legal proceedings 1 43. Information and records 1 44. Application of Financial Management Act 2006 Part 5 Division 3 1 45. Transitional regulations 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western 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; (c) Part 7 Division 4 Subdivision 2 — (i) if the Criminal Law (Mental Impairment) Act 2023 section 325 comes into operation on or before the day on which section 59 of this Act comes into operation under paragraph (d) — immediately after section 59 of this Act comes into operation; or (ii) otherwise — when the Criminal Law (Mental Impairment) Act 2023 section 325 comes into operation; (d) the rest of the Act — on the day on which the Privacy and Responsible Information Sharing Act 2024 Part 2 Division 12 comes into operation. (2) Despite subsection (1)(d), if the Criminal Law (Mental Impairment) Act 2023 section 410(2) comes into operation before the day on which Part 7 Division 2 of this Act comes into operation, Part 7 Division 2 of this Act — (a) does not come into operation; and (b) is deleted. 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 (c) the Privacy and Responsible Information Sharing Act 2024; Information Commissioner means the person appointed as Information Commissioner under section 5(2); information official means a person who is or has been — (a) the Information Commissioner; or (b) the Information Access Deputy Commissioner; or (c) the Privacy Deputy Commissioner; or (d) a person appointed under section 7, 11 or 15 to act in the office of Information Commissioner, Information Access Deputy Commissioner or Privacy Deputy Commissioner; or (e) a member of staff; or (f) a person engaged to provide services under section 31; member of staff means — (a) a public service officer appointed or made available under section 29; or (b) a person in relation to whom an arrangement under section 30(1) is in effect; Privacy Deputy Commissioner means the person appointed as Privacy Deputy Commissioner under section 13(2); privacy functions has the meaning given in the Privacy and Responsible Information Sharing Act 2024 section 142(1). 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. [Parts 2‑4 have not come into operation.] Part 5 — Miscellaneous [32‑34. Have not come into operation.] 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 (c) does not affect the person's remuneration. (3) The person retains all existing and accruing rights, including any rights under the State Superannuation Act 2000, as if the person's service as an FOI Act staff member were service as a public service officer. (4) This section does not prevent the person from resigning, or otherwise ceasing to be a public service officer, under the Public Sector Management Act 1994. 40. Arrangements for use of staff continued If an arrangement under the Freedom of Information Act 1992 section 61(4) is in effect immediately before transition day, the arrangement is taken, on and from transition day, to be an arrangement made under section 30(1) by the new Information Commissioner. 41. Things done or started under Freedom of Information Act 1992 before transition day (1) Anything done by, to, or in relation to, the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 is, to the extent necessary or convenient for the purpose of continuing its effect on and after transition day, taken to have been done by, to, or in relation to, the new Information Commissioner. Examples for this subsection: 1. If a requirement is made by the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 section 75(1), but has not been complied with before transition day, the requirement is taken to have been made by the new Information Commissioner. 2. If an application is made to the FOI Act Information Commissioner before transition day under the Freedom of Information Act 1992 section 35, but is not decided before transition day, the application is taken to have been made to the new Information Commissioner. (2) Anything that the FOI Act Information Commissioner started doing under the Freedom of Information Act 1992 before transition day may be continued on and after transition day by the new Information Commissioner. Example for this subsection: If the FOI Act Information Commissioner started dealing with a complaint made against an agency's decision under the Freedom of Information Act 1992 section 65 before transition day, the new Information Commissioner may continue dealing with the complaint on and after transition day. (3) Without limiting subsection (1) or (2), anything that the FOI Act Information Commissioner started doing under the Freedom of Information Act 1992 before transition day in the performance of a function that, on and after transition day, is a freedom of information function may be continued on and after transition day by the Information Access Deputy Commissioner acting in accordance with the Freedom of Information Act 1992 section 97B. 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 has not come into operation.] Notes This is a compilation of the Information Commissioner Act 2024. For provisions that have come into operation see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table. Compilation table Short title Number and year Assent Commencement Information Commissioner Act 2024 Pt. 1, 5 (other than s. 32 to 34) and 6 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)) Uncommenced provisions table To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website. Short title Number and year Assent Commencement Information Commissioner Act 2024 Pt. 2‑4, s. 32 to 34, and Pt. 7 1 52 of 2024 6 Dec 2024 Pt. 7 Div. 4 Subdiv. 2: immediately after s. 59 comes into operation (see s. 2(1)(c)(i); Pt. 2‑4, s. 32 to 34 and Pt. 7 (other than Div. 4 Subdiv. 2): operative on the day on which the Privacy and Responsible Information Sharing Act 2024 Pt. 2 Div. 12 comes into operation (see s. 2(1)(d)) 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) assent day 2(1) 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) © State of Western Australia 2024. This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au. Attribute work as: © State of Western Australia 2024. By Authority: GEOFF O. LAWN, Government Printer