Australia: NSW: GIPA Act update

Last Updated: 3 April 2012
Article by Ashley Tsacalos

Amendments to GIPA

Following the introduction of the Government Information (Public Access) Amendment Bill 2011 (NSW) (Bill) to Parliament late last year, new amendments to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) are due to commence in 2012. The Bill was passed by Parliament on 14 March and is currently awaiting assent.

The amendments originated from suggestions for "minor and technical" reforms made by the Directors General of the nine major NSW government departments.

According to the Explanatory Note to the Bill, the amendments aim to:

  • enable parts of agencies to be treated as separate agencies for the purposes of the GIPA Act,
  • confirm that copyright issues must be given due consideration when providing open access to information,
  • enable refusal of access to information if the applicant has already been given the information,
  • remove the current fees for internal review by an agency following a recommendation from the Information Commissioner,
  • confirm that agencies may require proof of identity of the applicant,
  • provide that there is no conclusive presumption of overriding public interest against disclosure of a spent conviction in the person convicted,
  • clarify where legal professional privilege may be waived in an access application,
  • clarify the timing for the recording of information in the Disclosure Logs of agencies and what can be included in such logs and to enable affected persons who are not access applicants to object to certain information about them being included in such logs, and
  • make certain minor amendments, amendments in the nature of statute law revision and amendments that provide for saving and transitional matters.

To give full effect to the above changes, the Bill also aims to amend four other NSW Acts:

  1. it will amend the Criminal Records Act 1991 to ensure that it is not an offence for government or government agencies to make public information about a spent conviction,
  2. it will amend the Privacyand Personal Information Protection Act 1998 to allow a part of a public sector agency to be treated as a separate agency for the purposes of the GIPA Act, and
  3. it will make other minor amendments to the Commission for Children and Young People Act 1998 and the Privacy Code of Practice (General) 2003.

Early GIPA Cases

Since our last update, the very first decisions concerning the GIPA Act have been handed down by the Administrative Decisions Tribunal (ADT).

In Flack v the Commissioner of Police, New South Wales Police [2011] NSWADT, the ADT denied an applicant access to information regarding an Apprehended Personal Violence Order (APVO) made by NSW Police. the ADT held that, pursuant to Section 13 of the GIPA Act, the application could not be allowed due to the fact that public interest considerations against disclosure of the information outweighed the public interest in favour of disclosure. The most significant of those public interest considerations was said to be the protection of individuals' witness statements contained within the police documents in question. Further details in relation to this case are available in the next article which discusses this case in detail.

In Hurst v Wagga Wagga City Council [2011] NSWADT 307, again the ADT was required to balance competing public interests. In this case, the ADT found that some of the information sought "could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory". This is a public interest consideration against disclosure of the information under the table in section 14 of the GIPA Act. The ADT found that deletion of the offending words from the information sought would be enough to eliminate the concern. Therefore, the applicant was given access to all of the information in the requested form, minus the deletions.

Also significant in this case was the comment made regarding the role of the Information Commissioner in access to information proceedings before the ADT. Under Section 105(2) of the GIPA Act, the Information Commissioner may be heard in relation to GIPA Act matters. In this case, however, submissions made by the Information Commissioner relating to public interest considerations against disclosure were not taken into account by the ADT. It was held that the GIPA Act did not intend for the Information Commissioner to make submissions on the merits of the case and that the burden of raising public interest considerations against disclosure of information lay with the respondent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ashley Tsacalos
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