Section 6R - Delegation

Extract of legislation

      
6R
Delegation

(1)
The Information Commissioner may by instrument delegate to the Public Access Deputy Commissioner or any member of staff any of the Information Commissioner’s functions and powers under this Act except—

(a)
the power to employ staff and engage contractors or other persons under section 6Q; or

(b)
the power to make a fresh decision under section 49P on a review under Part VI; or

(c)
the power to make recommendations under section 61L in relation to a complaint under Part VIA; or

(d)
the power to prepare a report under Part VII; or

(e)
this power of delegation.

(2)
The Information Commissioner may by instrument delegate only to the Public Access Deputy Commissioner the power to undertake an investigation.

(3)
The Information Commissioner may by instrument delegate to the Public Access Deputy Commissioner or any member of staff a function or power conferred on the Information Commissioner by or under any other Act except—

(a)
a function or power conferred on the Information Commissioner by or under the Privacy and Data Protection Act 2014; or

(b)
a function or power relating to information privacy, protective data security or law enforcement data security conferred on the Information Commissioner by or under any other Act.

(4)
With the written consent of the Information Commissioner, the Public Access Deputy Commissioner may by instrument delegate to any member of staff any of the Deputy Commissioner’s functions and powers (including any power delegated to the Deputy Commissioner under subsection (1)) except—

(a)
the power to make a fresh decision under section 49P on a review under Part VI; or

(b)
the power to make recommendations under section 61L in relation to a complaint under Part VIA; or

(c)
this power of delegation.

Guidelines

Delegating functions and powers

1.1

Delegation promotes the effective and efficient discharge of the Information Commissioner’s functions and use of powers by giving the Information Commissioner the power to authorise other persons to exercise those functions or powers. Delegation also allows the Information Commissioner to focus more on strategic management of the Office of the Victorian Information Commissioner (OVIC).

Functions and powers the Information Commissioner may and may not delegate

1.2

There are certain functions and powers the Information Commissioner and the Public Access Deputy Commissioner may and may not delegate.⁴ This limit on delegation reflects Parliament’s intention that only the Information Commissioner and/or the Public Access Deputy Commissioner should be able to exercise those powers.⁵

1.3

The Information Commissioner may delegate any of their functions and powers to the Public Access Deputy Commissioner and to other OVIC staff except the power to:

employ staff and engage contractors and other persons under section 6Q;
make a fresh decision under section 49P on a review;⁶
make recommendations under section 61L regarding a complaint;
prepare a report under Part VII; or
delegate functions and powers under section 6R.

Delegating the power to undertake an investigation

1.4

The Information Commissioner may delegate the power to undertake an investigation to the Public Access Deputy Commissioner only.⁸ The Information Commissioner may not delegate this power to OVIC staff.

1.5

Limiting the ability to delegate the Information Commissioner’s powers in Part VIB and Part VIC reflects the seriousness of those powers and ensures only the Information Commissioner or Public Access Deputy may exercise them.

Delegating functions and powers relating to privacy and information security

1.6

The Information Commissioner may not delegate a function or power:

conferred under the Privacy and Data Protection Act 2014 (Vic) (PDP Act); or
relating to information privacy, protective data security or law enforcement data security conferred on the Information Commissioner by or under any other Act.¹¹

1.7

While the Information Commissioner may perform functions and exercise powers under both the Act and the PDP Act, the Public Access Deputy Commissioner may only perform functions and exercise powers under the Act. The Public Access Deputy Commissioner cannot perform privacy or information security functions.¹²

The Public Access Deputy Commissioner may delegate functions and powers

1.8

The Public Access Deputy Commissioner may delegate to OVIC staff any of their functions and powers (including any power delegated under section 6R(1)), except the power to:

make a fresh decision under section 49P on a review;
make recommendations under section 61L regarding a complaint; or
delegate functions or powers under section 6R.¹⁷

Example

For example, certain OVIC staff can handle FOI complaints made under section 61A(1).

1.9

The Public Access Deputy Commissioner may not delegate the power to undertake an investigation, which the Information Commissioner can delegate to the Deputy Commissioner.¹⁸

1.10

The Public Access Deputy Commissioner can only delegate functions or powers with the Information Commissioner’s written consent.¹⁹

1.11

Any delegation made under section 6R may be subject to specified conditions or limitations.²⁰

More information

All current delegations made under the FOI Act and the Privacy and Data Protection Act 2014 (Vic) are available here.

Outlined in section 6R.
Freedom of Information Act 1982 (Vic), section 6R(4).
In effect, this means the Information Commissioner cannot delegate the power to make a decision under section 49P on a review to OVIC staff or contractors. The Public Access Deputy Commissioner already has the statutory function to conduct reviews in accordance with Part VI, this includes the power to make a decision under section 49P.
Outlined in section 6R.
Freedom of Information Act 1982 (Vic), section 6R(4).
In effect, this means the Information Commissioner cannot delegate the power to make a decision under section 49P on a review to OVIC staff or contractors. The Public Access Deputy Commissioner already has the statutory function to conduct reviews in accordance with Part VI, this includes the power to make a decision under section 49P.
Freedom of Information Act 1982 (Vic), section 6R(2).
Freedom of Information Act 1982 (Vic), section 6R(2).
Freedom of Information Act 1982 (Vic), section 6R(3).
Freedom of Information Act 1982 (Vic), section 6H(1)(a).
Freedom of Information Act 1982 (Vic), section 6R(3).
Freedom of Information Act 1982 (Vic), section 6H(1)(a).
Freedom of Information Act 1982 (Vic), sections 6R(4)(a) to (c).
Section 6R(4) makes clear that the Public Access Deputy Commissioner may only sub-delegate functions and powers under section 6R(1) rather than section 6R(2). Section 6R(2) permits the Information Commissioner to delegate the power to conduct investigations to the Public Access Deputy Commissioner only.
Freedom of Information Act 1982 (Vic), section 6R(4).
Interpretation of Legislation Act 1984 (Vic), section 42A(1)(b).
Freedom of Information Act 1982 (Vic), sections 6R(4)(a) to (c).
Section 6R(4) makes clear that the Public Access Deputy Commissioner may only sub-delegate functions and powers under section 6R(1) rather than section 6R(2). Section 6R(2) permits the Information Commissioner to delegate the power to conduct investigations to the Public Access Deputy Commissioner only.
Freedom of Information Act 1982 (Vic), section 6R(4).
Interpretation of Legislation Act 1984 (Vic), section 42A(1)(b).