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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Government Information (Public
Access) Amendment Bill 2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Government Information (Public Access) Act
2009 No 52 3
Schedule 2 Amendment of other legislation 11
b2011-149-94.d10
New South Wales
Government Information (Public
Access) Amendment Bill 2011
No , 2011
A Bill for
An Act to make miscellaneous amendments to the Government Information (Public
Access) Act 2009 and certain other related legislation.
Clause 1 Government Information (Public Access) Amendment Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Government Information (Public Access) Amendment 3
Act 2011. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
Page 2
Government Information (Public Access) Amendment Bill 2011
Amendment of Government Information (Public Access) Act 2009 No 52 Schedule 1
Schedule 1 Amendment of Government Information 1
(Public Access) Act 2009 No 52 2
[1] Section 6 Mandatory proactive release of certain government 3
information 4
Insert after section 6 (5): 5
(6) Nothing in this section or the regulations requires or permits an 6
agency to make open access information available in any way 7
that would constitute an infringement of copyright. 8
[2] Sections 18 (a), 20, 21, 22 (2) and 129 (2) (c) 9
Omit "publication guide" and "publication guides" wherever occurring. 10
Insert instead "agency information guide" and "agency information guides", 11
respectively. 12
[3] Part 3, Division 2, heading 13
Omit the heading. Insert instead: 14
Division 2 Agency information guides 15
[4] Section 22 Role of Information Commissioner 16
Omit "a publication guide" and "proposed publication guide" from section 17
22 (1). 18
Insert instead "an agency information guide" and "proposed agency 19
information guide", respectively. 20
[5] Section 26 Required information about access applications 21
Omit section 26 (2). Insert instead: 22
(2) No details are required to be recorded in the agency's disclosure 23
log: 24
(a) if no objection is made under section 56 to the inclusion of 25
information in the log before the access application is 26
decided--until the application is decided, or 27
(b) if an objection is made under section 56 to the inclusion of 28
information in the log before the access application is 29
decided--until the agency is entitled under that section to 30
include the information in the log. 31
Note. See section 56 (5) and (6) as to when an agency is entitled to 32
include information in its disclosure log following an objection under that 33
section. 34
Page 3
Government Information (Public Access) Amendment Bill 2011
Schedule 1 Amendment of Government Information (Public Access) Act 2009 No 52
[6] Section 26 (3) (a) 1
Insert "or any other individual" after "(the applicant being an individual)". 2
[7] Sections 27 (2), 33 and 34 (2) (a) 3
Omit "60 days" and "30 days" wherever occurring. 4
Insert instead "45 working days" and "20 working days", respectively. 5
[8] Section 41 How to make an access application 6
Omit "in Australia" from section 41 (1) (d). 7
[9] Section 41 (1), note 8
Insert at the end of the subsection: 9
Note. See section 51A concerning the effect of a waiver, reduction or 10
refund of the fee for an access application. See also section 52 (3) 11
concerning assistance to be afforded by an agency to an access 12
applicant. 13
[10] Section 51A 14
Insert after section 51: 15
51A Effect of waiver, reduction or refund of application fee 16
(1) An agency is not to treat an application as being an invalid access 17
application only because of the non-payment of the required 18
application fee if: 19
(a) the payment of the fee was waived by the agency before 20
the application was made, or 21
(b) the amount of the fee payable was reduced by the agency 22
before the application was made and the reduced fee 23
accompanied the application. 24
Note. Section 127 enables an agency to waive, reduce or refund a fee 25
payable or paid under this Act for an application fee in any case that the 26
agency thinks appropriate, subject to the regulations. 27
(2) If an agency waives payment of the required application fee, or 28
reduces the amount of the fee that is payable, after the application 29
is made (and the application would have been valid had the 30
required application fee been paid): 31
(a) in the case of a waived fee--the application becomes a 32
valid access application and is deemed to have been made 33
when the fee was waived, or 34
(b) in the case of a reduced fee--the application becomes a 35
valid access application when the reduced fee is paid and 36
is deemed to have been made when the payment is made. 37
Page 4
Government Information (Public Access) Amendment Bill 2011
Amendment of Government Information (Public Access) Act 2009 No 52 Schedule 1
(3) The refund of an application fee does not affect the validity of an 1
access application that was duly made. 2
[11] Section 52 Agency assistance with invalid applications 3
Omit section 52 (4). 4
[12] Section 54 Consultation on public interest considerations 5
Insert after section 54 (2): 6
(2A) If the agency considers that information about a person consulted 7
under this section is likely to be included in the agency's 8
disclosure log in relation to the access application, the agency 9
must give a written notice to the person containing the following 10
statements: 11
(a) that information concerning the application will be 12
included in the agency's disclosure log and that the person 13
can object to this, 14
(b) that there is a right of review under Part 5 of a decision by 15
the agency to include information in its disclosure log 16
despite the person's objection. 17
[13] Section 55 Consideration of personal factors of application 18
Insert "and, for that purpose, require the applicant to provide proof of his or 19
her identity" after "disclosure of the information" in section 55 (5). 20
[14] Section 56 Authorised objector can object to inclusion in disclosure log 21
Omit section 56 (1). Insert instead: 22
(1) Each of the following persons (an authorised objector) can 23
object to the inclusion in the agency's disclosure log of all or 24
specified information concerning an access application: 25
(a) the access applicant, 26
(b) any other person with whom the agency has consulted (or 27
is required to consult) under section 54 before providing 28
access to the information sought in the application. 29
(1A) An objection can include reasons for the objection and, in the 30
case of an objection by an access applicant, can be made as part 31
of the access application or separately. 32
Page 5
Government Information (Public Access) Amendment Bill 2011
Schedule 1 Amendment of Government Information (Public Access) Act 2009 No 52
[15] Section 56 (2) 1
Omit "An applicant is not entitled to object to the inclusion of information on 2
an agency's disclosure log except on one or more of the following grounds:" 3
Insert instead "The grounds on which an authorised objector is entitled to 4
object to the inclusion of information in an agency's disclosure log are limited 5
to any one or more of the following:". 6
[16] Section 56 (2) (a)-(d) 7
Omit "applicant" and "applicant's" wherever occurring. 8
Insert instead "authorised objector" and "authorised objector's", respectively. 9
[17] Section 56 (4A) 10
Insert after section 56 (4): 11
(4A) If a person referred to in subsection (1) (b) has objected to the 12
inclusion of information in the agency's disclosure log, the 13
agency must, as soon as is reasonably practicable after the 14
decision concerned is made (and in any event within 5 working 15
days after the decision is made), give the person a written notice 16
that indicates: 17
(a) the agency's decision about whether the person was 18
entitled to object, and 19
(b) (if the agency has decided that the person was entitled to 20
object) the agency's decision on whether to include the 21
information in its disclosure log. 22
[18] Section 56 (5) and (6) 23
Omit "the applicant" wherever occurring. 24
Insert instead "an authorised objector". 25
[19] Section 60 Decision to refuse to deal with application 26
Insert after section 60 (1) (b): 27
(b1) the applicant has previously been provided with access to 28
the information concerned under this Act or the Freedom 29
of Information Act 1989, 30
[20] Section 68 Advance deposit for payment of processing charge 31
Omit "4 weeks" from section 68 (3) (c). Insert instead "20 working days". 32
Page 6
Government Information (Public Access) Amendment Bill 2011
Amendment of Government Information (Public Access) Act 2009 No 52 Schedule 1
[21] Section 80 Which decisions are reviewable decisions 1
Omit "the access applicant" wherever occurring in section 80 (m). 2
Insert instead "an authorised objector". 3
[22] Section 82 Right of internal review 4
Omit "or if the agency is a Minister" from section 82 (2). 5
Insert instead "or a Minister (or a member of the Minister's personal staff)". 6
[23] Section 89 Right to have decision reviewed by Information 7
Commissioner 8
Omit section 89 (2). Insert instead: 9
(2) A reviewable decision must be the subject of an internal review 10
by the agency under this Part before it can be reviewed by the 11
Information Commissioner unless: 12
(a) the aggrieved person is the access applicant, or 13
(b) an internal review of the decision is not available to the 14
aggrieved person under this Part. 15
[24] Section 90 Time limit for applying for review by Information 16
Commissioner 17
Omit "8 weeks". Insert instead "40 working days". 18
[25] Section 93 Recommendation for reconsideration of matter by agency 19
Omit section 93 (6) (including the note). Insert instead: 20
(6) No fee is payable for any reconsideration (including by way of an 21
internal review) of a decision pursuant to a recommendation of 22
the Information Commissioner. 23
[26] Section 101 Time for applying for ADT review 24
Omit "8 weeks" from section 101 (1). Insert instead "40 working days". 25
[27] Section 101 (2) 26
Omit "4 weeks". Insert instead "20 working days". 27
[28] Section 106 Decisions about Cabinet and Executive Council information 28
Omit "Minister administering this Act" wherever occurring in section 106 (4) 29
and (5). 30
Insert instead "Premier". 31
Page 7
Government Information (Public Access) Amendment Bill 2011
Schedule 1 Amendment of Government Information (Public Access) Act 2009 No 52
[29] Section 125 Reports to Parliament 1
Omit "Department of Premier and Cabinet" from section 125 (5). 2
Insert instead "Department of Attorney General and Justice". 3
[30] Section 126 Requirements for notices given by agencies 4
Insert after section 126 (1): 5
(1A) A notice or notification under this Act that an agency is required 6
or permitted to give a person may be given by: 7
(a) posting the notice to the person at the postal address 8
provided by the person for correspondence in connection 9
with the matter concerned, or 10
(b) such other method as may be agreed by the agency and the 11
person. 12
[31] Section 127 Waiver, reduction or refund of fees and charges 13
Insert at the end of the section: 14
Note. See section 51A concerning the effect of a waiver, reduction or 15
refund of the fee for an access application. 16
[32] Schedule 1 Information for which there is conclusive presumption of 17
overriding public interest against disclosure 18
Insert at the end of clause 1: 19
(2) Subclause (1) does not apply in relation to the disclosure of a 20
spent conviction (within the meaning of the Criminal Records 21
Act 1991) to the person who was convicted. 22
[33] Schedule 1, clause 5 (2) 23
Omit "An agency in whose favour legal professional privilege exists". 24
Insert instead "If an access application is made to an agency in whose favour 25
legal professional privilege exists in all or some of the government 26
information to which access is sought, the agency". 27
[34] Schedule 3 Savings, transitional and other provisions 28
Insert at the end of clause 1 (1): 29
Government Information (Public Access) Amendment Act 2011 30
Page 8
Government Information (Public Access) Amendment Bill 2011
Amendment of Government Information (Public Access) Act 2009 No 52 Schedule 1
[35] Schedule 3, Part 3 1
Insert after Part 2: 2
Part 3 Provisions consequent on enactment of 3
Government Information (Public Access) 4
Amendment Act 2011 5
6 Definition 6
In this Part: 7
amending Act means the Government Information (Public 8
Access) Amendment Act 2011. 9
7 Application of amendments to pending access applications 10
(1) Section 55, as amended by the amending Act, extends to access 11
applications made before its amendment. 12
(2) Section 56, as in force before its amendment by the amending 13
Act, extends to access applications made (but not decided by an 14
agency) before its amendment. 15
8 Application of changes to time periods 16
An amendment made to this Act by the amending Act that alters 17
a period of time for the taking of action under this Act does not 18
apply to a person in connection with a matter arising before the 19
amendment's commencement if the result of applying the 20
amendment would be to deny the person a right to take action that 21
the person would have had but for the amendment. 22
9 Existing publication guides taken to be agency information guides 23
Any guide that was a publication guide for an agency 24
immediately before the commencement of Schedule 1 [2] to the 25
amending Act is taken to be the agency information guide for that 26
agency until a new guide is required to be adopted by the agency 27
under this Act. 28
[36] Schedule 4 Interpretative provisions 29
Insert in alphabetical order in clause 1: 30
authorised objector--see section 56. 31
Page 9
Government Information (Public Access) Amendment Bill 2011
Schedule 1 Amendment of Government Information (Public Access) Act 2009 No 52
[37] Schedule 4, clause 6A 1
Insert after clause 6: 2
6A Regulations may declare part of an agency to be separate agency 3
The regulations may declare that a specified office, branch or 4
other part of an agency is for the purposes of this Act to be 5
regarded as being a separate agency to the agency of which it 6
forms part. 7
[38] Schedule 4, clause 8 8
Omit "A reference". 9
Insert instead "Subject to any regulations made for the purposes of clause 6A, 10
a reference". 11
Page 10
Government Information (Public Access) Amendment Bill 2011
Amendment of other legislation Schedule 2
Schedule 2 Amendment of other legislation 1
2.1 Commission for Children and Young People Act 1998 No 146 2
Section 43 Obtaining and correcting information on relevant 3
employment proceedings under Government Information (Public 4
Access) Act 2009 5
Omit "Part 6A" from section 43 (3). Insert instead "Section 15". 6
2.2 Criminal Records Act 1991 No 8 7
Section 13 Unlawful disclosure of information concerning spent 8
convictions 9
Insert after section 13 (4A): 10
(4B) It is not an offence for a public authority or other government 11
agency that has a record of a spent conviction (or an authorised 12
officer of the authority or agency) to make information about the 13
conviction available to the person who was convicted. 14
2.3 Privacy and Personal Information Protection Act 1998 15
No 133 16
[1] Section 3 Definitions 17
Insert at the end of the definition of public sector agency in section 3 (1): 18
Note. Section 4B enables the regulations to declare that a public sector 19
agency is to be regarded as being part of another public sector agency 20
for the purposes of this Act. It also enables the regulations to declare that 21
a part of a public sector agency is to be regarded as being a separate 22
public sector agency from the public sector agency of which it forms part 23
for the purposes of this Act. 24
[2] Section 4B 25
Insert after section 4A: 26
4B Regulations may declare whether agency is part of or separate 27
from a public sector agency 28
(1) The regulations may declare that: 29
(a) a specified public sector agency is not to be regarded as a 30
separate public sector agency and instead is to be regarded 31
for the purposes of this Act as part of and included in 32
another specified public sector agency, or 33
(b) a specified office, branch or other part of a public sector 34
agency is for the purposes of this Act to be regarded as 35
Page 11
Government Information (Public Access) Amendment Bill 2011
Schedule 2 Amendment of other legislation
being a separate public sector agency to the public sector 1
agency of which it forms part in respect of specified 2
functions that it exercises. 3
(2) The regulations may make provision for or with respect to the 4
application of this Act (with such modifications, if any, as may 5
be prescribed) for the purposes of a declaration under this section. 6
(3) The Minister must, before recommending the making of a 7
regulation under this section, consider whether the making of a 8
declaration under this section will permit the sharing of personal 9
information between public sector agencies and, if so, whether 10
the sharing of that information would be appropriate in the 11
circumstances. 12
2.4 Privacy Code of Practice (General) 2003 13
Schedule 3 Modification of information protection principles applying to 14
ageing, disability and home care service agencies 15
Omit "disclosure" from clause 6 (2) (b). Insert instead "use". 16
Page 12
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