Knowledge Update - What is an agency?
Read the document below or download it here Knowledge Update - What is an agency? September 2018
The Government Information (Public Access) Act 2009 (NSW) (GIPA Act) provides the public with a right to access information held by agencies.
A government agency is defined in the GIPA Act as:
(a) a Public Service agency
(b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013)
(c) a public authority
(d) a public office
(e) a local authority
(f) a court
(g) a person or entity declared to be an agency pursuant to regulations made under the GIPA Act.
Public Service agency
The GIPA Act provides that a Public Service Agency has the same meaning as in the Government Sector Employment Act 2013 (GSE Act). Section 3 of the GSE Act defines a Public Service agency as:
- a Department (listed in Part 1 of Schedule 1 to the Act), or
- a Public Service executive agency (being an agency related to a Department), or
- a separate Public Service agency.
You will therefore find a current list of Public Service agencies recognised by the GIPA Act under Schedule 1 of the GSE Act.
Prior to the formation of the then super departments in July 2009 and the subsequent reorganisation into principal departments in April 2011, the NSW Government consisted of a greater number of smaller departments. The GIPA Act was passed by the Parliament of NSW in June 2009. Consequently, the legislation envisaged smaller entities than what had previously been referred to as principal departments in its initial reference to ‘government department’, and what is now referred to as a Public Service agency.
The existence of Departments has an impact on the extent to which searches for information must be conducted across agencies, and raises issues in terms of what constitutes a transfer of an application, and who has responsibility for meeting the reporting obligations under the GIPA Act.
Each Public Service agency should make it clear to the public how it deals with formal and informal requests for information. For example, some Departments coordinate all requests for information centrally, while others refer requests to the Public Service executive agency that holds the relevant information.
The IPC is of the view that the open access information required to be published on agency websites should be located on the website of the agency where people would be most likely to look for it. In most cases, this would be on the Public Service executive agency website, as it is not always obvious to the public which agencies fall within the umbrella of each Department. As a matter of good practice, the Department’s website should also contain links to the other pages.
Ministers and their staff
Ministers and their staff are considered to be agencies under the GIPA Act. They must comply with the same requirements as other agencies, but do not need to have an agency information guide or submit an annual report (see sections 20(1) and 125(1)).
The GIPA Act applies to information held by Ministers and their staff “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” (Schedule 4 Clause 11). However, there is a conclusive presumption of an overriding public interest against disclosure of Cabinet or Executive Council information, or information contained in the Register of Interests kept by or on behalf of the Premier pursuant to the Code of Conduct for Ministers (see Schedule 1 Clause 2, 3, and 11).
A public authority is defined in Schedule 4 Clause 2 of the GIPA Act as:
(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 by a regulation to be a public authority, including:
– NSW Adult Migrant English Service
– Australian Music Examinations Board NSW
– Duke of Edinburgh Award Scheme (NSW State Committee)
– Regional Development Australia.
The following are not public authorities:
(a) an incorporated company or association (unless declared to be a public authority by a regulation)
(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.
Section 4 of the GIPA Act defines an agency as, inter alia, ‘a public authority’. Schedule 4 of the GIPA Act at Clause 2(1)(e) interprets a public authority to mean, a State owned corporation. Schedule 5 to the State Owned Corporations Act 1989 (NSW) lists the following state owned corporations:
- Essential Energy
- Delta Electricity
- Hunter Water Corporation
- Endeavour Energy
- Newcastle Port Corporation
- Port Kembla Port Corporation
- Water NSW
- Superannuation Administration Corporation
- Sydney Ports Corporation
- Sydney Water Corporation
- Forestry Corporation
A public office is defined in Schedule 4 Clause 3 of the GIPA Act to mean:
(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.
A public office does not include:
- the office of Governor, Lieutenant-Governor or Administrator of the State
- any office associated with either House of Parliament
- a judicial officer of a court
- an office that is already considered to be an agency under the GIPA Act.
The GIPA Act applies to information held by the 152 (as at April 2016) local and four county councils in NSW. The amalgamations of local councils announced in May 2016 reduced the total number of councils in NSW. It is noted that there are still a number of merger proposals pending. The GIPA Act repealed and replaced the access to information provisions contained in Chapter 4 Part 2 of the Local Government Act 1993 (NSW) on 1 July 2010.
A 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.
While information relating to a court’s administrative functions is covered under the GIPA Act, there is a conclusive presumption of an overriding public interest against disclosure in relation to the judicial functions of a court (Schedule 2 Clause 1).
Section 4 of the GIPA Act defines an agency as, inter alia, ‘a public authority’. Schedule 4 of the GIPA Act at Clause 2(1)(a) interprets a public authority to mean, inter alia, a statutory body representing the Crown. Schedule 2 of the Public Finance and Audit Act 1983 applies a reference to a statutory body as, inter alia, a body. There are 10 universities specified in that Schedule.
The 10 universities are:
- Board of Governors of the Charles Sturt University
- Board of Trustees of the University of Western Sydney
- Council of the Macquarie University
- Council of the Southern Cross University
- Council of the University of New England
- Council of the University of New South Wales
- Council of the University of Newcastle
- Council of the University of Technology Sydney
- Council of the University of Wollongong
- Senate of the University of Sydney.
Agencies declared to be part of other agencies
As prescribed by Schedule 4 Clause 6 to the GIPA Act, the regulations may declare that a specified agency is not to be regarded as a separate agency, but instead is to be regarded (for the purposes of the Act) as part of another specified agency.
Schedule 3 to the GIPA Regulation contains a list of agencies that are considered to be part of other agencies for the purpose of the GIPA Act.
For more information
Contact the Information and Privacy Commission NSW (IPC):
Freecall: 1800 472 679