Complaints about the Information Commissioner: Section 48A of the Crime and Corruption Act 2001

1 Objective

The Information Commissioner is the public official of the Office of the Information Commissioner (OIC).

The objective of this policy is to set out how OIC will deal with a complaint (also information or matter)¹ that involves or may involve corrupt conduct² of the Information Commissioner as defined in the Crime and Corruption Act 2001 (CC Act).

2 Policy rationale

The policy is designed to assist OIC to:

1. Comply with section 48A of the Crime and Corruption Act 2001
2. Promote public confidence in the way suspected corrupt conduct of the Information Commissioner for OIC is dealt with (section 34(c) CC Act)
3. Promote accountability, integrity and transparency in the way OIC deals with a complaint that is suspected to involve, or may involve, corrupt conduct of the Information Commissioner.

3 Definitions

4 Policy application

This policy applies if there are grounds to suspect that a complaint may involve corrupt conduct of the Information Commissioner of OIC

For the purpose of this policy a complaint includes information or matter.³

5 Nominated person

Having regard to section 48A(2) and (3) of the CC Act, this policy nominates the Right to Information Commissioner and the Privacy Commissioner, as the nominated persons to notify⁴ the Crime and Corruption Commission (CCC) of the complaint and to deal with the complaint under the CC Act.⁵

Where there is more than one nominated person:

• the nominated persons will — with or without consulting the CCC decide who will be the nominated person for a particular complaint; and
• the nominated person for that particular complaint will inform the CCC and the Legal Affairs and Community Safety Committee that they are the nominated person for the particular complaint.

The CC Act applies as if a reference about notifying or dealing with the complaint about the Information Commissioner is a reference to the nominated person⁶.

6 Complaints about the Information Commissioner

If a complaint involves an allegation of corrupt conduct by the Information Commissioner of OIC, the complaint may be reported to:

• the nominated person, or
• a person to whom there is an obligation to report under an Act⁷ (this does not include an obligation imposed by sections 37, 38 and 39(1) of the CC Act).

If there is uncertainty about whether or not a complaint should be reported, it is best to report it to the nominated person.

If the nominated person reasonably suspects the complaint may involve corrupt conduct of the Information Commissioner, they are to:

(a) notify the CCC of the complaint⁸ , and

(b) deal with the complaint, subject to the CCC’s monitoring role, when —

• directions issued under section 40 apply to the complaint, if any, or
• pursuant to section 46, the CCC refers the complaint to the nominated person/s to deal with⁹

If the Information Commissioner reasonably suspects that the complaint may involve corrupt conduct on their part, and there is a nominated person, the Information Commissioner must:

(i) report the complaint to the nominated person as soon as practicable and may also notify the CCC, and

(ii) take no further action to deal with the complaint unless requested to do so by the nominated person in consultation with the Legal Affairs and Community Safety Committee.

Where there is a nominated person, and if directions issued under section 40 apply to the complaint:

(i) the nominated person is to deal with the complaint, and

(ii) the Information Commissioner is to take no further action to deal with the complaint unless requested to do so by the nominated person in consultation with the Legal Affairs and Community Safety Committee.

7 Resourcing the Nominated Person/s

If, pursuant to section 40 or section 46, the nominated person has responsibility to deal with the complaint¹⁰

(i) OIC will ensure that sufficient resources are available to the nominated person to enable them to deal with the complaint appropriately¹¹, and

(ii) the nominated person is to ensure that consultations, if any, for the purpose of securing resources sufficient to deal with the complaint appropriately are confidential and are not disclosed, other than to the CCC, without:

• authorisation under a law of the Commonwealth or the State, or
• the consent of the Information Commissioner or nominated person responsible for dealing with the complaint

(iii) the nominated person must, at all times, use their best endeavours to act independently, impartially and fairly having regard to the:

• purposes of the CC Act¹²
• the importance of promoting public confidence in the way suspected corrupt conduct in OIC is dealt with¹³, and
• OIC’s statutory, policy and procedural framework.

(iv) If the nominated person has responsibility to deal with the complaint, they:

• are delegated the same authority, functions and powers as the Information Commissioner to direct and control staff of OIC as if the nominated person is the Information Commissioner of OIC for the purpose of dealing with the complaint only
• are delegated the same authority, functions and powers as the Information Commissioner to enter into contracts on behalf of the OIC for the purpose of dealing with the complaint
• do not have any authority, function or power that cannot — under the law of the Commonwealth or the State — be delegated by the Information Commissioner, to the nominated person.

8 Liaising with the CCC

The Information Commissioner is to keep the CCC and the nominated person informed of:

• the contact details for the Information Commissioner and the nominated person
• any proposed changes to this policy.

9 Consultation with the CCC

The Information Commissioner will consult with the CCC when preparing any policy about how OIC will deal with a complaint that involves or may involve corrupt conduct of the public official/CEO.¹⁴

10 Statutory references

Unless otherwise stated, all statutory references are to the Crime and Corruption Act 2001.

11 Approval

Approved by the Information Commissioner on 4 May 2018.

1. See section 48A of the CC Act and definitions below
2. The CCC’s Corruption function encompasses both “corrupt conduct” and “police misconduct”. For the purposes of the Queensland Police Service, wherever the term “corrupt conduct” is used in the policy, they would also have to consider police misconduct, as per section 37 of the CC Act
3. See section 48(4) CC of the CC Act
4. Under section 37 or 38 of the CC Act
5. Under Chapter 2, Part 3, Division 4, Subdivisions 1 & 2 of the CC Act
6. See section 48A(3) CC Act
7. See section 39(2) of the CC Act
8. Under section 37 or 38, subject to section 40 of the CC Act
9. Under section 41 and 42 and/or section 43 and 44 of the CC Act
10. Under section 41 and 42 and/or section 43 and 44 of the CC Act
11. See the CCC’s corruption purposes and function set out in section 4(1)(b), 33, 34, 35 and the OIC’s relevant statutory, policy and procedural framework which help inform decision making about the appropriate way to deal with the complaint
12. See section 57 and the CCC’s corruption purposes and function set out in section 4(1)(b), 33, 34, 35 of the CC Act
13. See section 34(c) CC Act
14. See section 48A of the CC Act