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
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
provide that there is no conclusive presumption of overriding
public interest against disclosure of a spent conviction in the
clarify where legal professional privilege may be waived in an
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
make certain minor amendments, amendments in the nature of
statute law revision and amendments that provide for saving and
To give full effect to the above changes, the Bill also aims to
amend four other NSW Acts:
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,
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
it will make other minor amendments to the Commission for
Children and Young People Act 1998 and the Privacy Code of Practice
Early GIPA Cases
Since our last update, the very first decisions concerning the
GIPA Act have been handed down by the Administrative Decisions
In Flack v the Commissioner of Police, New South Wales
Police  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  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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).