Government Information (Public Access) Act 2009 No 52
Current version for 1 December 2014 to date (accessed 21 December 2014 at 03:33)
Schedule 4

Schedule 4 Interpretative provisions

1   Definitions

In this Act:

access applicant means the applicant under an access application.

access application—see section 4.

ADR Act means the Administrative Decisions Review Act 1997.

agency—see section 4.

authorised objector—see section 56.

commercial-in-confidence provisions of a contract means any provisions of the contract that disclose:

(a)  the contractor’s financing arrangements, or
(b)  the contractor’s cost structure or profit margins, or
(c)  the contractor’s full base case financial model, or
(d)  any intellectual property in which the contractor has an interest, or
(e)  any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.

contractor, in relation to a government contract entered into by an agency, means the person with whom the agency has entered into the contract.

court includes:

(a)  a tribunal, a Magistrate and a coroner, and
(b)  a registry or other office of a court and the members of staff of that registry or other office.

disclose information includes make information available and release or provide access to information.

Note. 

See also the definition of reveal.

disclosure log means a disclosure log kept by an agency under Part 3 (Open access information).

excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.

exercise a function includes perform a duty.

function includes a power, authority or duty.

government contract means any of the following contracts between an agency and a private sector entity:

(a)  a contract under which a party agrees to undertake a specific project (such as a construction, infrastructure or property development project),
(b)  a contract under which a party agrees to provide specific goods or services (such as information technology services), other than a contract of employment,
(c)  a contract under which a party agrees to transfer real property to another party to the contract,
(d)  a lease of real property.

government information—see section 4.

Information Commissioner means the Information Commissioner under the Government Information (Information Commissioner) Act 2009.

Joint Committee means the Joint Committee under the Government Information (Information Commissioner) Act 2009.

judicial functions, in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it, and includes:

(a)  in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and
(b)  in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980.

legislative instrument means a Public Act or an instrument made under a Public Act.

local authority means a council or county council within the meaning of the Local Government Act 1993.

NCAT means the Civil and Administrative Tribunal.

NCAT Act means the Civil and Administrative Tribunal Act 2013.

open access information—see Part 3.

person includes an agency, the government of another jurisdiction (including a jurisdiction outside Australia) and an agency of the government of another jurisdiction.

Note. 

This definition does not limit the definition of person in the Interpretation Act 1987, which includes an individual, a corporation and a body corporate or politic.

personal information—see clause 4.

principal officer of an agency means the head or chief executive officer (however designated) of the agency or the person of greatest seniority in the agency, and includes the Minister in the case of an agency that is a Minister.

Privacy Commissioner means the Privacy Commissioner under the Privacy and Personal Information Protection Act 1998.

private sector entity means any person or body (whether incorporated or unincorporated) who or which is not an agency.

public authority—see clause 2.

public office—see clause 3.

Public Service agency means a Public Service agency under the Government Sector Employment Act 2013.

record—see clause 10.

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

reviewable decision means a decision of an agency that is a reviewable decision under Part 5.

State includes Territory.

State owned corporation or SOC means a State owned corporation under the State Owned Corporations Act 1989.

working day means any day that is not a Saturday, Sunday or public holiday.

2   Public authorities

(1)  In this Act, public authority means:
(a)  a statutory body representing the Crown, or
(b)  a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument, or
(c)  the NSW Police Force, or
(d)  the Teaching Service, or
(e)  a State owned corporation, or
(f)  a wholly-owned subsidiary of the Crown in right of the State or of a public authority, or
(g)  a body declared to be a public authority by a regulation under this clause.
(2)  The regulations may declare any of the following bodies to be a public authority:
(a)  a body (whether incorporated or unincorporated) established for a public purpose otherwise than by or under the provisions of a legislative instrument,
(b)  a body (whether incorporated or unincorporated) that is established by the Governor or by a Minister or that is an incorporated company or association over which a Minister is in a position to exercise direction or control.
(3)  None of the following is a public authority for the purposes of a provision of this Act:
(a)  an incorporated company or association (unless declared to be a public authority for the purposes of the provision by a regulation under this clause),
(b)  the Legislative Council or the Legislative Assembly or a committee of either or both of those bodies,
(c)  a Royal Commission or a Special Commission of Inquiry,
(d)  a local authority.
(4)  An unincorporated body that is a board, council, committee, subcommittee or other body established or continued by or under the provisions of a legislative instrument for the purpose of assisting, or exercising functions connected with, an agency is not to be regarded as a separate public authority and instead is to be regarded as part of and included in the agency.
(5)  A regulation declaring a body to be a public authority may declare a body to be a public authority either generally or for the purposes only of specified provisions of this Act.

3   Public offices

(1)  In this Act, public office means:
(a)  an office established or continued for a public purpose by or under the provisions of a legislative instrument, or
(b)  any other office to which an appointment is made by the Governor or by a Minister that is declared by the regulations to be a public office.
(2)  None of the following is a public office for the purposes of this Act:
(a)  the office of Governor, Lieutenant-Governor or Administrator of the State,
(b)  the office of a member of the Legislative Council or the Legislative Assembly or of a committee of either or both of those bodies,
(c)  the office of President of the Legislative Council or Speaker of the Legislative Assembly or Chair of a committee of either or both of those bodies,
(d)  the office of a Minister of the Crown, Parliamentary Secretary or member of the Executive Council,
(e)  an office the duties of which the person performs as an officer of an agency,
(f)  the office of a judicial officer of a court,
(g)  an office of member of an agency,
(h)  an office established or continued by or under the provisions of a legislative instrument for the purposes of an agency,
(i)  an office established or continued by or under the provisions of a legislative instrument for the purposes of a body that is excluded from the definition of public authority by clause 2 (3).

4   Personal information

(1)  In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2)  Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.
(3)  Personal information does not include any of the following:
(a)  information about an individual who has been dead for more than 30 years,
(b)  information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c)  information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

5   Regulations may include persons and entities as agencies

(1)  The regulations may declare a person or entity that is not otherwise an agency to be an agency (a deemed agency) for the purposes of all or specified provisions of this Act and the Government Information (Information Commissioner) Act 2009 in relation to all or specified agency functions of the person or entity.
(2)  A function of a person or entity is an agency function if it is:
(a)  a function of a kind that is or was ordinarily exercised by an agency, or
(b)  a function of an agency that the person or entity is exercising pursuant to a contract or other arrangement with the agency.
(3)  A deemed agency is an agency only in respect of information that relates to the exercise by the deemed agency of the agency functions in respect of which it is declared to be an agency and only while the deemed agency exercises those functions (or for such shorter period as may be provided by the regulations).
(4)  A regulation under this clause may provide that information relating to any specified function of a deemed agency is excluded information of the agency under this Act.
(5)  The regulations under clause 6 may also declare that a deemed agency is not to be regarded as a separate agency and instead is to be regarded for the purposes of this Act as part of and included in another specified agency.
(6)  The Minister must, before recommending the making of a regulation under this clause, consult with the person or entity concerned and with any agency with which the person or entity has a contract or other arrangement for the exercise of the functions concerned.
Note. The Minister is also required to consult with the Information Commissioner. See section 129 (3).

6   Regulations may declare agency to be part of another agency

(1)  The regulations may declare that a specified agency (the subsidiary agency) is not to be regarded as a separate agency and instead is to be regarded for the purposes of this Act as part of and included in another specified agency (the parent agency).
(2)  An access application made to the parent agency specifically for government information held by the subsidiary agency can be dealt with by the parent agency as an access application only for government information held by the subsidiary agency and not for government information otherwise held by the parent agency.

6A   Regulations may declare part of an agency to be separate agency

The regulations may declare that a specified office, branch or other part of an agency is for the purposes of this Act to be regarded as being a separate agency to the agency of which it forms part.

7   References to the Government

A reference in this Act to the Government includes, where appropriate, a reference to an agency.

8   Bodies forming part of agencies

Subject to any regulations made for the purposes of clause 6A, a reference in this Act to an agency includes a reference to any body that forms part of the agency or that exists mainly for the purpose of enabling the agency to exercise its functions.

9   Officer of an agency

A reference in this Act to an officer of an agency includes a reference to a member of the agency, the principal officer of the agency and any other person employed within the agency or as a member of staff of the agency, and in the case of an agency that is a Minister, includes a reference to the Minister.

10   Meaning of “record”

(1)  In this Act:

record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.

(2)  A reference in this Act to a record includes a reference to a copy of the record.
(3)  For the purposes of the definition of record in this Act, the knowledge of a person is not a record.

11   Government information held by Minister

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

12   Government information held by agency

(1)  A reference in this Act to government information held by an agency is a reference to:
(a)  information contained in a record held by the agency, or
(b)  information contained in a record held by a private sector entity to which the agency has an immediate right of access, or
(c)  information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or
(d)  information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).
(2)  Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).
(3)  Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.

13   Records in certain agencies

(1)  A record that is held by:
(a)  the State Records Authority, or
(b)  the Australian Museum, or
(c)  the Museum of Applied Arts and Sciences, or
(d)  the State Library, or
(e)  any other prescribed agency,
but that was originally created or received by another agency is taken to be held by that other agency.
(2)  A record that is held by an agency referred to in subclause (1) and that relates to the affairs of a Royal Commission or a Special Commission of Inquiry is taken to be held by the Minister administering the Royal Commissions Act 1923 or the Minister administering the Special Commissions of Inquiry Act 1983, as appropriate.
(3)  Information contained in a record held by an agency that is a public archive is not government information for the purposes of this Act if:
(a)  the record was not created by an agency in relation to the functions of an agency, and
(b)  the record is held in the public archive subject to a condition imposed by the person or body (not being an agency) by whom it has been placed in the possession of the archive prohibiting its disclosure to members of the public generally or to certain members of the public or restricting its disclosure to certain members of the public.
(4)  In this clause, public archive includes:
(a)  each of the agencies referred to in subclause (1), and
(b)  a library that forms part of a university, college of advanced education or college of technical and further education.

14   Defunct agencies

(1)  When an agency (the former agency) ceases to exist:
(a)  any government information taken to be held by the former agency is instead taken to be held by the successor agency, and
(b)  an access application made to the former agency is taken to have been made to the successor agency, and
(c)  a decision under this Act made by the former agency is taken to have been made by the successor agency.
(2)  The successor agency to a former agency is:
(a)  another agency on which the former agency’s functions have devolved, or
(b)  if the former agency’s functions have devolved on 2 or more other agencies—the agency on which have devolved the functions to which the government information concerned most closely relates, or
(c)  if the former agency’s functions have not devolved on another agency—such other agency as the Minister administering this Act may, after consultation with the responsible Minister for that agency, nominate.
(3)  For the purpose of enabling an application or determination to be dealt with under this Act:
(a)  an agency to which an application is to be taken to have been made, or
(b)  an agency by which a determination is to be taken to have been made,
is, if the agency did not exist at the time the application or determination was in fact made, taken to have been in existence at that time.

15   References in other Acts—information not required to be disclosed

A reference in any other Act or statutory rule to information that an agency would not be required to disclose under this Act is a reference to information that the agency would not be required to disclose in response to an access application made to the agency under this Act.

16   Notes

Notes included in this Act do not form part of this Act.
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