There is a large body of Acts of Parliament that apply to a public entity in Victoria, including legalisation focussed on public entity accountability and transparency.
Freedom of Information Act 1982
The Freedom of Information Act 1982 applies to almost all public entities defined by the Public Administration Act 2004.
The objectives of the Freedom of Information Act are to:
- extend a right of access to information held by public entities created under Victorian law
- make available public information about the operations of organisations and ensure their rules and practices are available to affected people
- be limited only by exceptions or exemptions specified in the Freedom of Information Act.
The Freedom of Information Act gives the public the right to request information held by public entities.
The Freedom of Information Act gives the public the right to access documents about personal affairs and the activities of government organisations and the right to request that any incorrect or misleading information held by an organisation be amended or removed.
The Freedom of Information website is useful for individuals who wish to request access to documents and for public entities that need to establish systems to accept and deal with requests. This website assists a public entity with application forms and contains a section on information for government organisations.
The Freedom of Information Act affects a public entity in the following ways:
- the portfolio minister must publish a statement describing the functions of the public entity, the documents it keeps, and how members of the public can access these documents
- the chair or chief executive officer of the public entity must make the documents used by decision makers, such as the board or senior managers of the public entity, and documents used by public contact officers in their work available to the public
- public entity documents, including documents held on computer databases, are to be available for access by individuals within time limits set down in the Freedom of Information Act
- the public entity must have a system for collection of fees associated with its freedom of information (FOI) functions
- the public entity must have trained staff authorised to administer the FOI functions
- the public entity must have administrative arrangements for reviewing decisions made under the Freedom of Information Act where an individual requests a review of a decision
- the public entity must provide data about its FOI functioning to the Attorney-General for use in an annual report by the Attorney-General.
Compliance with the Freedom of Information Act
The board must ensure that:
- the public entity has the administrative structure required to support the freedom of information (FOI) function
- there is an appropriate number of trained FOI officers authorised by the chair or the chief executive officer (as appropriate) to receive, consider and make decisions on requests and to receive and account for fees received for requests
- the public entity has the administrative structure required to support the process for internal review of FOI decisions where a person has made a request to the public entity, seeks a review and similar arrangements to deal with an appeal to VCAT (Victorian Civil and Administrative Tribunal) following the internal review
- the person conducting the internal review is not the same person who made the initial decision or has had any involvement with the documents subject to the internal review. In the case of VCAT, it is necessary to arrange for representation of the public entity at the tribunal either by a public entity staff member or by a legal representative
- in a small public entity, FOI administration may, by arrangement, be carried out on the public entity’s behalf by staff in the portfolio department (the chief executive officer must authorise the staff in the portfolio department in that regard)
- the public entity has the required data collection systems to provide statistical and other material requested from time to time on behalf of the Attorney-General
- the required statement of functions and operations of the public entity is accurate, available and included in its annual report
- the documents issued to the public entity’s decision-makers and public contact officers are available for inspection and purchase.
Ombudsman Act 1973
The Ombudsman Act 1973 applies to a public statutory body. A public statutory body must be a body whether corporate or unincorporated, constituted or established under an Act for a public purpose; or a body in which the Governor in Council or a minister has a right to appoint all or some of its members.
The Ombudsman Act aims to improve accountability of state and local government organisations and promote fair and reasonable public administration.
The Ombudsman has produced a comprehensive set of guidelines.
The Ombudsman Act affects a public entity in the following ways:
- the Ombudsman may enquire into any administrative action taken in a public entity but not personnel matters (unless the Ombudsman considers that the matter merits investigation in order to avoid injustice)
- the chair must assist the Ombudsman to conduct enquiries regarding the public entity
- before conducting an investigation, the Ombudsman writes to inform the chair and the portfolio minister of the intention to investigate
- the Ombudsman is not required to hold a hearing as part of the investigation and may obtain information as required
- if it appears to the Ombudsman that there will be findings against a public entity, the Ombudsman must give the chair an opportunity to comment before making the report
- the Ombudsman or an officer authorised by the Ombudsman may enter the public entity’s premises and inspect them or anything in them
- at the end of an investigation, the Ombudsman reports the findings to the chair together with any recommendations about changes in administration and information regarding any referral of issues arising to other agencies such as the office of the Director of Public Prosecution
- the Ombudsman may recommend changes in the law for consideration as part of a report following an investigation
- a copy of a report to the chair is also sent to the portfolio minister
- the report may ask the chair to notify the Ombudsman within a specified time of the steps taken to implement the recommendations or the reasons for no steps being taken
- the Ombudsman may send a copy of the report, recommendations and the chair’s comments to the Governor in Council if it seems that no appropriate steps have been taken within a reasonable time. The Ombudsman may also report to parliament on the matter.
The Ombudsman Act sets out in s. 23 a list of possible grounds for finding that an administrative action by a public entity has been defective. These grounds are that the action was:
- unreasonable, unjust, oppressive or improperly discriminatory
- taken in exercising a power or discretion for an improper purpose, on irrelevant grounds, or on the taking into account of irrelevant considerations
- a decision made in exercising a discretion with no reasons given when reasons should have been given
- based wholly or partly on a mistake of law or fact
Compliance with the Ombudsman Act
The board should ensure that:
- the public entity has designated an employee as the public entity’s Ombudsman Liaison Officer who can act as a contact point for staff of the office seeking information about the public entity
- the Ombudsman Liaison Officer may also perform the role of coordinating the public entity’s response to correspondence from the Ombudsman’s office about an investigation (the information required for comment on draft findings, or in order to answer a question, will almost always have to come from other employees of the public entity)
- the chair works with the chief executive officer and the Ombudsman Liaison Officer to ensure that responses to correspondence from the Ombudsman receive a reply that is either prompt or within an agreed time frame
- the chair provides the rest of the board with details of any correspondence received from the Ombudsman’s office about an investigation.