Australia: Are you ready for the amended Freedom of Information Act in Victoria?

Last Updated: 4 September 2017
Article by Pip Mitchell

Most Read Contributor in Australia, October 2017

New timeframes, consultation periods, and regulator are now law under Victoria's FOI Act.

From 1 September 2017, Victorian Government agencies will need to comply with new requirements for processing freedom of information requests, under changes introduced by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) .

While some changes formalise current informal practices, the, along with the new regulator and timeframes, will require agencies to ensure their internal processes are up-to-date.

Why were the FOI amendments introduced?

The Amending Act is intended to deliver on the Victorian government's election promise to create a more transparent and accountable government. The provisions focus on making it quicker and easier for Victorians to access information and are generally (although not entirely) reflective of changes that have been implemented in the New South Wales, Queensland and Commonwealth jurisdictions.

The new Victorian Information Commissioner

One of the key focuses of the Amending Act is establishing the Office of the Victorian Information Commissioner. The Commissioner will be Victoria's primary regulator for the collection, use and sharing of information held by agencies. The Office will commence operations on 1 September 2017 and will be responsible for freedom of information, data protection and privacy.

The Commissioner has broader powers than the former FOI Commissioner, including the power to review decisions of Ministers and principal officers or those made on the ground of Cabinet exemption, and various powers to compel agencies to do certain things in the course of a review or an investigation.

New time-frames and extension option

The period for agencies to notify an applicant of its decision in relation to the applicant's request has been shortened from 45 days to 30 days after the request is received.

However, agencies have the opportunity to extend the 30 day time period:

  • by 30 days, up to a total of 60 days, if the agency has received the applicant's consent; or
  • by 15 days, up to a total of 45 days, without the applicant's consent if the documents requested are of the class that requires consultation under the Act.

Third party consultation is required under the Amending Act where a request has been made concerning documents of another state, an issue of national security, law enforcement documents, IBAC documents, issues of personal privacy, trade secrets or material obtained in confidence.

Consultation requirements for specific classes of documents

The Amending Act introduces a requirement for agencies to notify and seek the view of specified third parties when determining whether to disclose a document.

Section 29: a matter communicated by another State

Consult with:

  • another agency or Minister;
  • an agency of another Commonwealth or another State or Territory;
  • an authority of another country, Commonwealth or Territory.

Section 29A: an issue of national security

Consult with:

  • another agency or Minister;
  • an agency of another Commonwealth or another State or Territory;
  • an authority of another country, Commonwealth or Territory.

Section 31: law enforcement documents

Consult with:

  • another agency or Minister;
  • an agency of another Commonwealth or another State or Territory;
  • an authority of another country, Commonwealth or Territory.

Section 31A: IBAC documents

Consult with:

  • IBAC

Section 33: documents affecting personal privacy

Consult with:

  • the person who is the subject of that information or the next of kin

Section 34: documents relating to trade secrets, or of a business, commercial or financial nature

Consult with:

  • the person who is the subject of that information or the next of kin

Section 35: documents containing material obtained in confidence

Consult with:

  • the person or government that communicated the information;
  • the person or government on whose behalf the information was communicated.

This may appear to place an additional burden on government, but it is likely to create a more streamlined and efficient process. That's because while consultation was not required for most exemptions under the Act as previously in force, it was still performed as a matter of practice. A formal consultation process will give agencies more certainty when deciding on the appropriateness of disclosure.

It is also possible that the requirement to consult with other relevant agencies will lead to greater consistency in decision-making across agencies, and may act as an alternative to the current practice of interagency transferral of part or all of requests, as agencies will now be able to formally seek the view of other parties and obtain an extension of time in which to conduct that consultation.

Consultation is generally only required "if practicable". This phrase is not defined in the Amending Act and we will ultimately need to wait either for guidance from the Commissioner, or for the development of case law on the topic, to determine what it constitutes. However, if consultation is not practicable, that may lead agencies to err on the side of caution by not disclosing documents if consultation was not possible.

Ultimately, the effect of the expanded consultation requirement is that agencies must ensure they are aware, and have regard to, the interests of other relevant parties.

What are the implications for review of your agency's decisions?

The Amending Act grants the Commissioner greater powers in terms of reviewing agencies' and Ministers' decisions than were available to the FOI Commissioner.

Importantly, the Commissioner can review decisions made on the ground of Cabinet exemption. Previously, they could only be reviewed by VCAT.

Agencies should also be aware that if they refuse an FOI request without processing it, the Commissioner can require that they identify or process a "reasonable sample" of documents. The Commissioner is also able to:

  • issue a notice to produce or attend on a principal officer of an agency; and
  • require a further search, either when conducting a review or investigating a complaint, if the Commissioner believes that "an agency or Minister has failed to undertake an adequate search for documents".

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.