Division 1 Appointment of Privacy Commissioner
34 Appointment of Privacy Commissioner
(1) The Governor may appoint a Privacy Commissioner.
(2) The Privacy Commissioner holds office for such term not exceeding 5 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
(3) A person is not eligible to be appointed for more than 2 terms of office as Privacy Commissioner (whether or not consecutive terms).
(4) A person is not eligible to be appointed as Privacy Commissioner or to act in that office if the person is the Information Commissioner.
(5) A person is not eligible to be appointed as Privacy Commissioner or to act in that office if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth.
(6) The Privacy Commissioner may be appointed on a full-time or part-time basis. If the Privacy Commissioner is appointed to office on a full-time basis, the Privacy Commissioner is required to hold the office on that basis except to the extent permitted by the Governor.
35 Veto of proposed appointment of Privacy Commissioner
(1) A person is not to be appointed as Privacy Commissioner until:
(a) a proposal that the person be so appointed has been referred to the Joint Committee under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
(2) A person may be proposed for appointment on more than one occasion.
(3) In this section, appointment includes re-appointment.
(1) The Privacy Commissioner is entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may from time to time determine.
(2) The Privacy Commissioner is not, if a Judge of a New South Wales Court and while receiving remuneration as such a Judge, entitled to remuneration under this Act.
35B Vacancy in office
The office of Privacy Commissioner becomes vacant if the holder:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Governor, or
(d) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(h) is removed from office under section 35C.
35C Removal from office
(1) The Governor may remove the Privacy Commissioner from office on the address of both Houses of Parliament.
(2) The Governor may suspend the Privacy Commissioner from office:
(a) for misbehaviour, or
(b) for incapacity, or
(c) if the Privacy Commissioner is absent from duty for a period in excess of his or her leave entitlement as approved by the Governor unless the absence is caused by illness or other unavoidable cause.
(3) The Minister is to lay or cause to be laid before each House of Parliament, within 7 sitting days of that House after the Privacy Commissioner has been suspended from office, a full statement of the grounds for the suspension.
(4) The suspension is to be lifted unless each House of Parliament, within 21 sitting days from the time when the statement was laid before it, declares by resolution that the Privacy Commissioner ought to be removed from office.
(5) If each House does so declare within that period, the Privacy Commissioner is to be removed from office by the Governor.
(6) For the purposes of this section, sitting days are to be counted whether or not they occur in the same session.
35D Filling of vacancy
If the office of Privacy Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
35E Privacy Commissioner a statutory officer and not Public Service employee
The office of Privacy Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office.
35F Appointment of acting Privacy Commissioner
(1) The Minister may, from time to time, appoint a person to act in the office of the Privacy Commissioner during the illness or absence of the Privacy Commissioner or during a vacancy in the office of the Privacy Commissioner. The person, while so acting, has all the functions of the Privacy Commissioner and is taken to be the Privacy Commissioner.
(2) The Minister may, at any time, remove a person from office as acting Privacy Commissioner.
(3) An acting Privacy Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
35G Staff of Privacy Commissioner
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Privacy Commissioner to exercise his or her functions.
Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Privacy Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Privacy Commissioner. Section 47A of the Constitution Act 1902 precludes the Privacy Commissioner from employing staff.
The Privacy Commissioner may delegate the exercise of any function of the Privacy Commissioner (other than this power of delegation) to:
(a) any member of staff of the Privacy Commissioner, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.