Section 61X - Failure to comply with notice to produce or attend

A person who receives a notice to produce or attend must do what the notice says unless they have a reasonable excuse. If a person does not comply with a notice, penalties apply.

It is also an offence to:

• wilfully obstruct, hinder or resist the Office of the Victorian information Commissioner (OVIC) in performing or attempting to perform a function or duty under the Act or exercising or attempting to exercise a power under the Act;⁴
• provide information or make a statement knowing it is false or misleading in a material way;⁵
• mislead or attempt to mislead OVIC.⁶

The Act outlines examples of what constitutes a reasonable excuse to not comply with a notice to produce or attend. Without limiting what is a reasonable excuse, examples include:

• self-incrimination – if the giving of the information or production of the document may tend to incriminate the person;¹¹
• documents affecting national security, defence or international relations – the information or document to be produced is exempt or is information that, if included in a document, would make it an exempt document under section 29A;¹²
• Cabinet documents – the information or document is exempt under section 28 or is information that if included in a document would make that document exempt under section 28. This excuse does not apply in relation to a document claimed to be exempt under section 28 that relates to a decision under review;¹³
• legal professional privilege – the information or document is exempt under section 32 or is information that if included in a document would make that document exempt under section 32.¹⁴This does not apply in relation to a document claimed to be exempt under section 32 that relates to a decision under review.

A person cannot claim statutory secrecy as an excuse for not complying with a notice to produce or attend. There are two exceptions to this, which are discussed in section 61ZC.

If a person believes they have a reasonable excuse, they need to explain to OVIC why the reasonable excuse applies. They should contact OVIC before the date and time outlined in the notice, to advise that they intend to rely on a reasonable excuse to not comply with part or all of the notice. They should provide any information or submissions to support their view in time for OVIC to decide whether a reasonable excuse applies.