2015
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Information Amendment Bill (No. 2) 2015
SERIAL NO. 137
EXPLANATORY STATEMENT
GENERAL OUTLINE
The purpose of this Bill is to amend the Information Act to transfer jurisdiction for the hearing of complaints to the Northern Territory Civil and Administrative Tribunal and to reform the complaint process to facilitate the hearing of complaints by the Tribunal and to improve the pathway of complaints. 
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Information Amendment Act (No.2) 2015.
Clause 2.	Commencement
This is a formal clause which provides when the Act will commence.  The Act will commence on a day fixed by the Administrator by Gazette notice. 
Part 2	Amendment of Information Act
Clause 3.	Act amended
This clause provides that this Part of the Bill amends the Information Act.
Clause 4.	Section 4 amended
This clause amends section 4 of the Information Act by inserting the new definitions ‘proceeding’ and ‘Tribunal’ and amending the definitions of ‘personal information’, ‘complainant’, ‘respondent’ and ‘person’. 
The definition of ‘personal information’ is amended so that it has the meaning in new section 4A of the Information Act, inserted by clause 5 of the Bill.
‘complainant’ has been broadened to cover a person joined as a complainant by the Commissioner under new section 109A, inserted by clause 23 of the Bill.
‘respondent’ has been broadened to cover a person joined as a respondent by the Commissioner under new section 109A, inserted by clause 23 of the Bill.
‘Proceeding’ has the meaning provided by new section 113, inserted by clause 29 of the Bill.
‘Tribunal’ is defined as the Civil and Administrative Tribunal (being the Northern Territory Civil and Administrative Tribunal, refer section 17 of the Interpretation Act). 
Clause 5.		Sections 4A and 4B inserted
This clause inserts new sections 4A and 4B after section 4 of the Information Act.
Section 4A inserts a new definition of ‘personal information’.  Under this new definition, if a person’s identity is disclosed in government information only in the context of having acted in an official capacity for a public sector organisation, and it discloses no other personal information about the person, the government information is not personal information. 
Section 4B provides that the definition of ‘person’ in section 4 of the Information Act does not limit the application of the offence provisions to persons who are individuals. 
Clause 6.		Section 5 amended
Section 5(5)(b) of the Information Act currently provides that ‘This Act does not apply to: ...(b) a tribunal in relation to its decision-making functions;…’. 
This clause amends section 5(5)(b) by inserting the qualification ‘except as expressly provided in Parts 7A and 8 [of the Information Act]’. 
Clause 7.		Section 9A inserted 
This clause inserts section 9A into the Information Act, which applies Part IIAA of the Criminal Code, relating to the general principles of criminal responsibility, general defences and the burden of proof.  Part IIAA also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Clause 8.		Section 30 amended 
This clause amends section 30 of the Information Act to reflect modern drafting practice and the transfer of jurisdiction for hearings from the Information Commissioner (the Commissioner) to the Tribunal.
Clause 9.		Section 39 amended
Section 39 of the Information Act currently provides how an application for review by a public sector organisation under section 38 is to be conducted.
This clause omits section 39(1)(a) and (b) and replaces them with new section 39(1)(a) and (b) and also inserts new section 39(2A) to reflect the insertion of new section 39A by clause 10 of the Bill.
This clause also amends section 39(4) of the Information Act to reflect modern drafting practice.
Clause 10.		Section 39A inserted
This clause inserts new section 39A into the Information Act.  
New section 39A(1) provides that, instead of reviewing a decision under section 39 of the Information Act, a public sector organisation may send the application to the Commissioner to be dealt with as a complaint under new section 103(4), inserted by clause 19 of the Bill.
New section 39A(2) provides that a public sector organisation cannot refer a decision to the Commissioner under new section 39A(1) if the decision is one which the Commissioner has referred back to the public sector organisation for further review under new section 103(2) of the Information Act.
Clause 11.		Section 82 amended
This clause amends section 82 of the Information Act to reflect modern drafting practice.
Clause 12.		Section 84 replaced
Section 84 of the Information Act currently provides that it is an offence for a public sector organisation not to comply with a compliance notice.  This offence is currently unenforceable as only natural persons and bodies corporate may be prosecuted for an offence.
This clause repeals section 84 of the Information Act and inserts a new section 84 which provides that if a public sector organisation fails to comply with a compliance notice, the Commissioner may make a report to the Minister, who must table a copy of the report in the Legislative Assembly within six Sitting days after receiving it.
Section 101(3) of the Information Act does not apply to a public sector organisation’s failure to comply with a compliance notice.
Clause 13.		Section 87 amended
Section 87(2)(d) and (e) of the Information Act currently provide the Commissioner with the ability to access, and require the production of, the records of a public sector organisation.
This clause amends those sections so that the Commissioner can access, and require the production of, records or ‘other things’.  This is consistent with the Commissioner’s power under new section 110A to compel evidence for the investigation of a complaint under section 110.
Clause 14.		Section 95 amended 
This clause amends section 95 of the Information Act to reflect the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 15.		Section 98 amended
This clause amends section 98 of the Information Act to reflect modern drafting practice.
Clause 16.		Section 101 replaced 
Section 101 of the Information Act provides that it is an offence to obstruct or improperly influence the Commissioner in the exercise of a power or the performance of a function under the Information Act or to fail to comply with a direction by the Commissioner under the Information Act. 
This clause omits and substitutes a new section 101 by rewording the offence to comply with the criminal responsibility requirements of Part IIAA of the Criminal Code.  Strict liability is applied to new subsections (1)(b), (2)(b), and (3)(b) and a defence of reasonable excuse applies to the offences in new subsections (1), (2) and (3).
Clause 17.		Section 102 amended
This clause amends section 102 of the Information Act to reflect modern drafting practice.
Clause 18.		Part 7, Division 1 heading omitted
Part 7 of the Information Act is currently divided into two Divisions.  Division 1 comprises of sections 103 to 120 and provides the procedure for complaints to the Commissioner.  Division 2 comprises of sections 121 to 128 and provides the procedure for hearings by the Commissioner.
With the referral of jurisdiction for hearings from the Commissioner to the Tribunal, Part 7 has been divided into Part 7 and new Part 7A.  Part 7 now deals with the matters previously provided for under Division 1, Part 7.  The matters previously dealt with under Division 2, Part 7 have been incorporated into new Part 7A.
This clause therefore omits the Division 1, Part 7 heading from the Information Act. 
Clause 19.		Section 103 replaced
This clause omits and substitutes a new section 103 of the Information Act.
Section 103 currently provides that a person aggrieved by a decision of a public sector organisation on an application for review by the organisation under Part 3, Division 4 may make a complaint to the Commissioner about the decision. 
Similarly, new section 103(1) provides that a person aggrieved by a decision of a public sector organisation on an application for review by the organisation under Part 3, Division 4 may make a complaint to the Commissioner about the decision.
New section 103(2) provides that the Commissioner may refer a complaint back to a public sector organisation to conduct a further review of the decision under Part 3, Division 4.
New section 103(3) provides that the Commissioner cannot again refer a complaint that was the subject of a referral for a further review under section 103(2). 
New section 103(4) provides that if an application for the review of a decision by a public sector organisation is made under section 38 of the Information Act, and that application is sent to the Commissioner under new section 39A(1), the Commissioner must deal with the application as if it were a complaint under section 103(1).
New section 103(5) provides that an application under section 103(4) may be referred back to the public sector organisation for a further review under section 103(2), unless section 103(3) applies.
Clause 20.		Section 104A inserted
This clause inserts new section 104A into the Information Act, which provides that the Commissioner may deal with two or more complaints jointly if they concern the same or related facts or circumstances, or the Commissioner is satisfied that it is appropriate for the complaints to be dealt with jointly.
Clause 21.		Section 106 amended
This clause amends section 106 of the Information Act to reflect that the Commissioner can now refer complaints back to a public sector organisation for further review under new section 103(2), inserted by clause 19 of the Bill.
Clause 22.		Section 107 amended
This clause amends section 107 of the Information Act to reflect that the Commissioner can now refer complaints back to a public sector organisation for further review under new section 103(2), inserted by clause 19 of the Bill.
Clause 23.		Section 109A inserted
This clause inserts new section 109A into the Information Act which provides that the Commissioner may join a person as a party to a complaint.
Clause 24.		Section 110 amended
This clause amends section 110 of the Information Act by inserting new section 110(2A), (2B), (2C), (2D), (2E), (2F) and omitting and substituting new section 110(4) and (6).
New section 110(2A) provides that if a complaint relates to a decision by a public sector organisation relevant to the provision of information about a third party, the Commissioner can require the respondent public sector organisation to seek the views of the third party regarding the disclosure of that information and to inform the Commissioner of those views.
New section 110(2B) and (2C) together provide that if a complaint is made by a third party in relation to a decision by a public sector organisation to provide another person with access to information about the third party, the Commissioner can determine the complaint by deciding not to provide the original applicant with access to the information if satisfied they no longer wish to be provided with access to the information about the third party.  The Commissioner cannot make such a determination without the consent of the respondent public sector organisation.
New section 110(2D) provides that the Commissioner may dismiss a complaint if satisfied for any reason that the complainant no longer wishes to pursue the complaint, for example, by failing to comply with a direction or requirement of the Commissioner. 
New section 110(2E) provides that the Commissioner may at any time after accepting a complaint, refer a matter to mediation under section 111 of the Information Act, including before she has concluded her investigation under section 110(1) or determined whether there is sufficient prima facie evidence to substantiate the matter complained of under section 110(3). 
New section 110(2F) provides that, if a complaint is resolved by mediation or other agreement before the investigation is completed, the Commissioner must discontinue her investigation. 
New section 110(4) has been inserted to clarify that if there is sufficient evidence to substantiate the matter complained of, and mediation has not previously occurred, the Commissioner must refer the matter to mediation under section 111 of the Information Act.
New section 110(6) provides that the Commissioner must notify the parties, in writing, of how she has dealt with the complaint under section 110 of the Information Act. 
Clause 25.		Section 110A inserted
This clause inserts new section 110A into the Information Act, which provides the Commissioner with the power to compel evidence for an investigation under section 110 of the Information Act. 
Clause 26.		Section 111 amended
This clause amends section 111 of the Information Act to reflect the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
New section 111(1A) provides that mediation is not a precondition to the Tribunal conducting a proceeding in relation to a decision by the Commissioner under section 110(5) dismissing a complaint made under either section 103 or 104 of the Information Act for want of sufficient prima facie evidence.
Clause 27.		Section 112 amended
This clause amends section 112 of the Information Act to reflect the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 28.		Sections 112A to 112D inserted
This clause inserts new sections 112A, 112B, 112C and 112D into the Information Act. 
New section 112A provides that the complainant or the respondent may apply to the Commissioner to refer a complaint to the Tribunal if the Commissioner has determined under section 110(3) there is sufficient prima facie evidence to substantiate the complaint and the complaint has not been resolved by mediation or other agreement.  Pursuant to new section 112A(3), such an application must be made within 28 days after the applicant has been given both notification under new section 110(6) of the Commissioner decision under section 110(3) that there is sufficient prima facie evidence to substantiate the complaint and a mediator’s certificate under section 111(4) of the Information Act. 
The complainant may also apply, under new section 112A(1)(b), to the Tribunal if the Commissioner dismisses the complaint under section 110(5) on the grounds that there was insufficient prima facie evidence to substantiate the complaint.  Pursuant to new section 112A(4), such an application must be made within 28 days after the complainant has been given notification under new 110(6) of the Commissioner decision to dismiss the complaint. 
The Commissioner cannot refuse to refer a complaint under section 112A. 
New section 112B provides that, within 60 days of referring a complaint under section 112A, the Commissioner must prepare a written report in relation to the complaint and her investigation under section 110 of the Information Act.  A copy of the report and any other documents or materials the Commissioner considers relevant must be provided to the Tribunal and the parties.  Importantly, section 112B(2) provides that the Commissioner may provide the complainant or the respondent with a redacted version of the report and any accompanying documents or materials so as not to disclose confidential information to a party or prematurely disclose to the complainant the information which they seek to be provided with access to. 
New sections 112C and 112D replicate sections 119 and 120 of the Information Act, simply repositioned within the Act and amended to reflect the transfer of jurisdiction for hearings from the Commissioner to the Tribunal. 
Clause 29.		Section 113 replaced
This clause repeals section 113 of the Information Act and inserts new Part 7A and Division headings and new sections 113, 113A, 113B, 113C and 113D. 
New section 113 provides that for new Part 7A of the Information Act:
·	‘proceeding’ means the hearing of a matter by the Tribunal in the jurisdiction conferred by section 113A(1); and
·	‘referred to the Tribunal’ means a matter referred to the Tribunal under section 112A(4).
New section 113A provides that the Tribunal has the jurisdiction specified in new Part 7A of the Information Act and that it forms part of the Tribunal’s review jurisdiction under the Northern Territory Civil and Administrative Tribunal Act. 
New section 113B provides that the Tribunal must conduct a proceeding in relation to a complaint referred to the Tribunal.
Similar to new section 110(2A) (inserted by clause 24 of the Bill), new section 113C provides that if a complaint relates to a decision by a public sector organisation relevant to the provision of information about a third party, the Tribunal can require the respondent public sector organisation to seek the views of the third party regarding the disclosure of that information and to inform the Commissioner of those views.  This is most likely to occur in circumstances where a third party is not identified until a complaint has been referred to the Tribunal.
New section 113D applies in relation to complaints dismissed by the Commissioner under section 110(5) on the grounds that there was insufficient prima facie evidence to substantiate the complaint.  If the Tribunal confirms the Commissioner’s decision, the Tribunal may make any orders necessary to give effect to its decision.
Pursuant to new section 113D(3), if the Tribunal decides that the complaint should not have been dismissed, the Tribunal may, further to any other powers it has under the Northern Territory Civil and Administrative Tribunal Act, refer the complaint to the Commissioner for mediation under section 111 of the Information Act.  The Tribunal may do this regardless of whether or not mediation occurred prior to the complaint being dismissed. 
Alternately, the Tribunal may conduct a proceeding in relation to the matter complained of as if it had been referred to the Commissioner under either new section 112A(1)(a) or (2). 
New section 113D(6) provides that where a matter is referred back to the Commissioner for mediation, and mediation fails, a party may apply to the Commissioner under new section 112A to refer the matter to the Tribunal.  If this occurs, for the purposes of section 112A as applied by new section 113D(6), the Commissioner is taken to have determined that there was sufficient prima facie evidence to substantiate the complaint.  
This clause also inserts the new Part 7A, Division 2 heading into the Information Act.
Clause 30.		Section 114 amended
This clause amends section 114 of the Information Act to reflect modern drafting practice and the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 31.		Section 115 amended
This clause amends section 115 of the Information Act to reflect the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 32.		Section 116 amended 
This clause amends section 116 of the Information Act to reflect modern drafting practice and the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
New section 116(1)(ca) is inserted by subclause (3) of the Bill to facilitate the retention of the Commissioner’s reporting function under section 116(2) in relation to findings under section 115(4) by the Tribunal regarding a respondent public sector organisation. 
Clause 33.		Section 117 repealed
Section 117 of the Information Act currently provides that the Information Commissioner can deal with similar complaints together if they arise out of substantially similar circumstances.
This matter is now dealt with under new section 104A of the Information Act, inserted by clause 20 of the Bill.  Accordingly, this clause repeals section 117.
Clause 34.		Section 118 amended
This clause amends section 118 of the Information Act to reflect modern drafting practice and the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 35.		Sections 119 and 120 replaced
This clause omits sections 119 and 120 of the Information Act and replaces them with a new section 119 which provides who the parties to a Tribunal proceeding under Part 7A of the Information Act are.
Under new section 119(1), the Commissioner may be joined as a party if the proceeding relates to a complaint dismissed by the Commissioner under section 110(5) of the Information Act unless, under section 119(2), the Commissioner does not wish to be joined as a party and the Commissioner is not otherwise joined as a party by the Tribunal under new section 119(1)(d).
Clause 36.		Part 7, Division 2 heading omitted
This clause omits the Part 7, Division 2 heading from the Information Act.
Clause 37.		Sections 121 and 122 repealed
Sections 121 and 122 of the Information Act relate to the conduct of hearings and the identity of the parties and who may represent them at hearing.
This clause repeals sections 121 and 122 and reflects the transfer of jurisdiction for hearings from the Commissioner to the Tribunal and that relevant provisions that will apply to the hearing of information complaints by the Tribunal are found in the Northern Territory Civil and Administrative Tribunal Act. 
Clause 38.		Section 123 amended 
This clause amends section 123 of the Information Act to reflect modern drafting practice and the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
This clause also provides that despite section 60 of the Northern Territory Civil and Administrative Tribunal Act, a proceeding is closed to the public unless the Tribunal orders otherwise.
Clause 39.		Section 124 repealed
Section 124 of the Information Act relates to the Commissioner’s power to compel evidence at hearing. 
This clause repeals section 124 and reflects the transfer of jurisdiction for hearings from the Commissioner to the Tribunal and that the relevant provisions that will apply to the hearing of information complaints by the Tribunal are found in the Northern Territory Civil and Administrative Tribunal Act.
Clause 40.		Section 125 amended
This clause amends section 125 of the Information Act to reflect modern drafting practice and the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 41.		Sections 126 to 128 repealed
Sections 126, 127 and 128 of the Information Act relate to the cost of a hearing, contempt in relation to a hearing and the conduct of a hearing other than by the Commissioner, respectively.
This clause repeals sections 126, 127 and 128 and reflects the transfer of jurisdiction for hearings from the Commissioner to the Tribunal and that the relevant provisions that will apply to the hearing of information complaints by the Tribunal are found in the Northern Territory Civil and Administrative Tribunal Act. 
Clause 42.		Part 8 heading amended
This clause amends the Part 8 heading of the Information Act to reflect the transfer of jurisdiction for hearings from the Commissioner to the Tribunal.
Clause 43.		Section 129 amended
Currently under the Information Act, a person aggrieved by a decision of the Information Commissioner, including a decision in relation to a hearing, may appeal to the Supreme Court on a question of law.  Consistent with this policy, the Bill provides that a person aggrieved by the outcome of a proceeding by the Northern Territory Civil and Administrative Tribunal may appeal to the Supreme Court on a question of law.  The timeframe for an appeal to the Supreme Court is 60 days from the date of the decision.
Clause 44.		Section 145 amended
This clause amends section 145 of the Information Act by omitting and substituting a new subsection (1) replacing the wording to comply with the criminal responsibility requirements of Part IIAA of the Criminal Code. 
The penalty for the offence meets current penalty standards applicable to this type of offence. 
Clause 45.		Section 146 replaced
This clause omits and substitutes a new section 146 of the Information Act, replacing the wording to comply with the criminal responsibility requirements of Part IIAA of the Criminal Code. 
New section 146 contains the following three offences:  
·	section 146(1) provides that it is an offence to provide the Commissioner or a public sector organisation with misleading information;
·	section 146(2) provides that it is an offence to provide the Commissioner or a public sector organisation with a record containing misleading information; and 
·	section 146(5) provides that it is an offence to make a misleading statement with the intention of gaining access to another person’s personal information or information about another person’s business, professional, commercial or financial affairs.
Strict liability is applied to section 146(1)(b) and (2)(b) in new section 46(3).
New section 146(4) disapplies section 146(2) if, when giving the record, the person draws the misleading aspect of the record to the attention of the Commissioner or public sector organisation or gives the Commissioner or public sector organisation the information necessary to remedy the misleading aspect of the record. 
The penalties for these offences meet current penalty standards applicable to these types of offence. 
Clause 46.		Section 147 amended
This clause amends section 147 by omitting and substituting a new subsection (1), replacing the wording to comply with the criminal responsibility requirements of Part IIAA of the Criminal Code.  Strict liability is applied to section 147(1)(b) of the offence in new section 147(1A). 
The penalty for the offence meets current penalty standards applicable to this type of offence. 
Clause 47.		Section 148 replaced
This clause omits and substitutes a new section 148 of the Information Act, replacing the wording to comply with the criminal responsibility requirements of Part IIAA of the Criminal Code.  Strict liability is applied to section 148(1)(a) of the offence in new section 148(2).  New section 148(3) disapplies section 148(1) if the information is disclosed, used or recorded for the administration of the Information Act, with the consent of the person to whom the information relates, for legal proceedings arising from the Act, or is otherwise available to the public.
The penalty for the offence meets current penalty standards applicable to this type of offence. 
Clause 48.		Section 151 replaced
Section 151 of the Information Act currently indemnifies persons against any civil or criminal liability resulting from conduct done in good faith in the exercise or purported exercise of a function or power or in compliance or purported compliance with a requirement under the Information Act.
This clause omits and substitutes a new section 151 of the Information Act, rewording the provision to reflect modern drafting practice.
Clause 49.		Part 13 inserted
This clause inserts new Part 13 into the Information Act, which provides for transitional matters for the amendments to the Information Act.  The transitional provisions provide that complaints made before commencement continue under the provisions of the Act in force immediately before commencement.  The transitional provisions also provide that offences committed before commencement are dealt with under the offence provisions in force before commencement, and that the amended offence provisions apply only to offences committed after commencement. 
Part 3 		Consequential amendment of Alcohol Mandatory Treatment Act
Clause 50.		Act amended
This clause provides that this Part of the Bill amends the Alcohol Mandatory Treatment Act.
Clause 51.		Section 140 amended
This clause amends section 140(5) of the Alcohol Mandatory Treatment Act by omitting and substituting the definition of ‘information’ which is consistent with the new definition of ‘personal information’ in new section 4A of the Information Act, inserted by clause 5 of the Bill. 
Part 4 			Expiry
Clause 52.		Expiry of Act
This is a standard clause which provides that the Information Amendment Act (No. 2) 2015 expires the day after it commences.  
As this is an amending Act, there is no need to retain the Act on the statute book, once all the amendments to other Acts have been effected.