Government Information (Information Commissioner) Act 2009
In ForceNSW
Jurisdiction
New South Wales
Act Number
53 of 2009
Collection
act
Plain English Summary
5/10 complexity
The Act creates a statutory Information Commissioner to receive and resolve complaints about agencies’ exercise of Information Acts, using conciliation, investigations, inspections, written information requirements and limited coercive tools, plus reporting to Parliament.
It chiefly affects NSW public agencies (which must comply with inquiries) and the public (who may complain), funds a new oversight office from public budgets, and balances investigatory reach with legal limits like privilege and Cabinet secrecy.
The Government Information (Information Commissioner) Act 2009 (the IC Act) creates and empowers an independent statutory office holder—the Information Commissioner—to oversee agency compliance with information access legislation, primarily the Government Information (Public Access) Act 2009 (GIPA Act). At its core the IC Act performs three interlocking functions: (1) establishing the office and its governance (Part 2), (2) conferring investigative, complaint-handling, reporting and coercive powers (Part 3), and (3) ensuring accountability through parliamentary reporting and external oversight (Parts 4 and 5).
Section 14 provides the foundational statement: the Commissioner “has such functions as may be conferred or imposed on the Commissioner by or under this or any other Act”. The primary vehicle is the GIPA Act, but s 3(1) defines “Information Act” expansively to include the GIPA Act “and any other Act that is declared by the regulations to be an Information Act”. This delegated power gives the regime future-proofing; to date only the GIPA Act has been so designated, yet the statutory language permits seamless extension.
The Commissioner’s day-to-day work is procedural rather than determinative. Section 15 mandates an informal, merits-based approach: the Commissioner must “act in an informal manner (including avoiding conducting formal hearings) as far as possible”, is not bound by the rules of evidence, and may inform himself or herself “in any way that the Commissioner considers to be just”. This mirrors the philosophy of the GIPA Act itself—presumptive disclosure unless an overriding public interest against disclosure exists.
Complaints form the largest operational workload. Under s 17 any “person” (defined by reference to the GIPA Act) may complain about “the conduct (including action or inaction) of an agency in the exercise of functions under an Information Act”. Importantly, a note to s 17 cross-references s 89(4) of the GIPA Act: a reviewable decision cannot itself be the subject of a complaint if the complainant is still within time to seek NCAT review. This prevents forum-shopping while still allowing complaints about systemic delay or bad process.
Current sections
Direct links to the current provisions in Government Information (Information Commissioner) Act 2009.
Information Act means the GIPA Act and any other Act that is declared by the regulations to be an Information Act for the purposes of this Act.
Joint Committee means the Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission constituted under the Ombudsman Act 1974 or such other joint committee of members of Parliament as may be appointed to exercise the functions of the Joint Committee under this Act.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2010 No 71, Sch 2 [1]; 2016 No 61, Sch 6.21 [1].
Part 2
Appointment of Information Commissioner
Part 2 Appointment of Information Commissioner
Part 2 Appointment of Information Commissioner
4
Appointment of Information Commissioner
4 Appointment of Information Commissioner
4 Appointment of Information Commissioner
(1) The Governor may appoint an Information Commissioner.
(2) The Commissioner holds office for such term not exceeding 5 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
(3) A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).
(3A) A person is not eligible to be appointed as Information Commissioner or to act in that office if the person is the Privacy Commissioner.
(4) A person is not eligible to be appointed as Commissioner or to act in that office if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth.
(5) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Governor.
s 4: Am 2010 No 71, Sch 2 [2].
5
Veto of proposed appointment of Commissioner
5 Veto of proposed appointment of Commissioner
5 Veto of proposed appointment of Commissioner
(1) A person is not to be appointed as Commissioner until—
(a) a proposal that the person be so appointed has been referred to the Joint Committee under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
(2) A person may be proposed for appointment on more than one occasion.
(3) In this section, appointment includes re-appointment.
(b) such travelling and subsistence allowances as the Minister may from time to time determine.
(2) The Commissioner is not, if a Judge of a New South Wales Court and while receiving remuneration as such a Judge, entitled to remuneration under this Act.
7
Vacancy in office
7 Vacancy in office
7 Vacancy in office
The office of Commissioner becomes vacant if the holder—
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Governor, or
(d) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(h) is removed from office under section 8.
8
Removal from office
8 Removal from office
8 Removal from office
(1) The Governor may remove the Commissioner from office on the address of both Houses of Parliament.
(2) The Governor may suspend the Commissioner from office—
(a) for misbehaviour, or
(b) for incapacity, or
(c) if the Commissioner is absent from duty for a period in excess of his or her leave entitlement as approved by the Governor unless the absence is caused by illness or other unavoidable cause.
(3) The Minister is to lay or cause to be laid before each House of Parliament, within 7 sitting days of that House after the Commissioner has been suspended from office, a full statement of the grounds for the suspension.
(4) The suspension is to be lifted unless each House of Parliament, within 21 sitting days from the time when the statement was laid before it, declares by resolution that the Commissioner ought to be removed from office.
(5) If each House does so declare within that period, the Commissioner is to be removed from office by the Governor.
(6) For the purposes of this section, sitting days are to be counted whether or not they occur in the same session.
9
Filling of vacancy
9 Filling of vacancy
9 Filling of vacancy
If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
10
Commissioner not Public Service employee
10 Commissioner not Public Service employee
10 Commissioner not Public Service employee
The office of Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office.
s 10: Subst 2014 No 33, Sch 3.7 [1].
11
Appointment of acting Commissioner
11 Appointment of acting Commissioner
11 Appointment of acting Commissioner
(1) The Minister may, from time to time, appoint a person to act in the office of the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of the Commissioner. The person, while so acting, has all the functions of the Commissioner and is taken to be the Commissioner (including as Chairperson of the Information and Privacy Advisory Committee under the Privacy and Personal Information Protection Act 1998).
(2) The Minister may, at any time, remove a person from office as acting Commissioner.
(3) An acting Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
s 11: Am 2010 No 71, Sch 2 [3].
12
Staff of Commissioner
12 Staff of Commissioner
12 Staff of Commissioner
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise his or her functions.
Note—
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
s 12: Subst 2014 No 33, Sch 3.7 [2].
13
Delegation
13 Delegation
13 Delegation
The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to—
(a) any member of staff of the Commissioner, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
Part 3
Functions of Commissioner
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Division 1
General functions of Commissioner
Division 1 General functions of Commissioner
Division 1 General functions of Commissioner
14
General functions
14 General functions
14 General functions
The Commissioner has such functions as may be conferred or imposed on the Commissioner by or under this or any other Act.
15
General procedures of Commissioner
15 General procedures of Commissioner
15 General procedures of Commissioner
The Commissioner—
(a) is to act in an informal manner (including avoiding conducting formal hearings) as far as possible, and
(b) is to act according to the substantial merits of the case without undue regard to technicalities, and
(c) may determine the procedures to be followed in exercising the Commissioner’s functions under this Act, including the procedures to be followed at an inquiry or investigation conducted by the Commissioner, and
(d) is not bound by the rules of evidence and may inform himself or herself on any matter in any way that the Commissioner considers to be just.
16
Expert assistance
16 Expert assistance
16 Expert assistance
For the purposes of the exercise of any of the Commissioner’s functions, the Commissioner may engage the services of any person for the purpose of getting expert assistance.
Division 2
Complaints
Division 2 Complaints
Division 2 Complaints
17
Making of complaint
17 Making of complaint
17 Making of complaint
Any person may complain to the Commissioner about the conduct (including action or inaction) of an agency in the exercise of functions under an Information Act, including conduct that is alleged by the person to constitute a contravention of an Information Act.
Note—
A decision of an agency that is reviewable under the GIPA Act cannot be the subject of a complaint to the Commissioner (even if the person is out of time to apply for review of the decision). See section 89 (4) of the GIPA Act.
18
Decision to deal with complaint
18 Decision to deal with complaint
18 Decision to deal with complaint
(1) The Commissioner may decide to deal with a complaint or to decline to deal with a complaint.
(2) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a complaint and may request further information from the complainant.
19
How complaints are dealt with
19 How complaints are dealt with
19 How complaints are dealt with
(1) The Commissioner deals with a complaint by taking appropriate measures to assist in the resolution of the complaint, including (but not limited to) any of the following measures—
(a) providing information to the parties to the complaint,
(b) undertaking discussions concerning the complaint with the parties to the complaint,
(c) facilitating the direct resolution of the complaint by the parties to the complaint (including by conciliation or other informal process).
(2) The Commissioner can also deal with a complaint by investigating the complaint under Division 3.
20
Notice to complainant
20 Notice to complainant
20 Notice to complainant
The Commissioner must give notice to the complainant of the Commissioner’s decision on whether to deal with the complaint and (if the Commissioner decides to deal with the complaint) how the complaint is to be dealt with.
Division 3
Investigations
Division 3 Investigations
Division 3 Investigations
21
Investigation of agency systems, policies and practices
21 Investigation of agency systems, policies and practices
21 Investigation of agency systems, policies and practices
(1) The Commissioner may investigate and report on the exercise of any functions of one or more agencies under an Information Act, including the systems, policies and practices of agencies (or of agencies generally) that relate to functions of agencies under an Information Act.
(2) The Commissioner is to give a report under this section—
(a) to the Minister responsible for any agency to which the report relates, and
(b) to the principal officer of an agency that is the subject of the report.
22
Investigation of complaints
22 Investigation of complaints
22 Investigation of complaints
(1) If the Commissioner decides to investigate a complaint, the Commissioner must give notice to the complainant of the decision to investigate and must give notice to an agency of the Commissioner’s decision to investigate a complaint about the agency.
(2) The Commissioner may discontinue an investigation of a complaint at any time and is to give notice of the discontinuation of an investigation to the complainant and the agency concerned.
23
Procedure for investigations
23 Procedure for investigations
23 Procedure for investigations
(1) An investigation under this Act is to be made in the absence of the public.
(2) In an investigation under this Act, the Commissioner must give an opportunity to make submissions on the matter the subject of the investigation—
(a) if practicable, to the agency whose conduct is the subject of investigation, and
(b) in the case of an investigation of a complaint—to the complainant.
(3) Where, in an investigation under this Act, the Commissioner considers that there are grounds for adverse comment in respect of any person, the Commissioner, before making any such comment in any report, must, in so far as it is practicable to do so—
(a) inform that person of the substance of the grounds of the adverse comment, and
(b) give the person an opportunity to make submissions.
(4) Before publishing a report on an investigation that makes an adverse comment in respect of an agency, the Commissioner must inform the Minister responsible for the agency that the Commissioner proposes to publish such a report and must, at the request of that Minister, consult the Minister.
24
Report on compliance with Information Act
24 Report on compliance with Information Act
24 Report on compliance with Information Act
(1) Where, in an investigation under this Act, the Commissioner finds that any conduct of an agency the subject of the investigation is conduct that constitutes a failure to exercise its functions properly in accordance with any provision of an Information Act, the Commissioner must report the matter—
(a) to the Minister responsible for the agency, and
(b) to the principal officer of the agency, and
(c) where the conduct concerns the conduct of a Public Service employee, to the Secretary of the Premier’s Department.
(2) The Commissioner may give a copy of the report—
(a) where the investigation arises out of a complaint to the Commissioner, to the complainant, and
(b) to the agency to whose conduct the report relates.
(3) An agency to whose conduct the report relates who is given a copy of the report may, and on request by the Commissioner must, notify the Commissioner of any action taken or proposed in consequence of the report.
s 24: Am 2014 No 33, Sch 3.7 [3]; 2023 No 35, Sch 4.12[1].
Division 4
Powers of Commissioner
Division 4 Powers of Commissioner
Division 4 Powers of Commissioner
25
Agencies to give information etc
25 Agencies to give information etc
25 Agencies to give information etc
(1) For the purposes of or in connection with the exercise of any function of the Commissioner, the Commissioner may require an agency—
(a) to give the Commissioner a statement of information, or
(b) to produce to the Commissioner any record or other thing, or
(c) to give the Commissioner a copy of any record.
(2) A requirement under this section must be in writing, must specify or describe the information, record or thing required, and must fix a time and specify a place for compliance.
(3) The disclosure of information by an agency in compliance with a requirement imposed by or under this or any other Act does not constitute the waiver of any privilege of the agency against disclosure of the information.
26
Entry of premises
26 Entry of premises
26 Entry of premises
For the purposes of any investigation under this Act, the Commissioner may, at any time—
(a) enter and inspect any premises occupied or used by an agency, and
(b) inspect any record or thing in or on the premises.
27
Limits on coercive powers because of privilege etc
27 Limits on coercive powers because of privilege etc
27 Limits on coercive powers because of privilege etc
(1) The Commissioner must not exercise a coercive entry power and must set aside any requirement imposed under a coercive investigative power if it appears to the Commissioner that any person has a ground of privilege, whereby, in proceedings in a court of law, the person might resist a like requirement or the exercise of a like power, unless—
(a) the privilege is a privilege of an agency, or
(b) it appears to the Commissioner that the person has waived the privilege.
(2) However, the Commissioner may exercise a coercive entry or investigative power despite (and is not required to set aside any requirement imposed under a coercive investigative power merely because of)—
(a) any rule of law that, in proceedings in a court of law, might justify an objection to compliance with a like requirement or the exercise of a like power on grounds of public interest, or
(b) any duty of secrecy or other restriction on disclosure applying to an agency.
(3) In this section—
coercive entry power means a power to inspect any premises or any record or thing on premises.
coercive investigative power means a power to—
(a) require any person to give any statement of information, or
(b) require any person to produce any record or other thing, or
(c) require any person to give a copy of any record, or
(d) require any person to answer any question.
28
Powers to prevent contravention of Information Act
28 Powers to prevent contravention of Information Act
28 Powers to prevent contravention of Information Act
(1) If a person has engaged, is engaged or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of any provision of an Information Act, the Supreme Court may, on the application of the Commissioner, grant an injunction restraining the person from engaging in that conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.
(2) If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do any act or thing that the person is required to do by or under an Information Act, the Supreme Court may, on the application of the Commissioner, grant an injunction requiring the person to do that act or thing.
(3) If an application is made to the Court for an injunction under subsection (1), the Court may, if in its opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in the conduct concerned pending the determination of the application.
(4) The Court may rescind or vary an injunction granted under this section.
(5) The Commissioner has standing to bring proceedings by way of judicial review in connection with the exercise of the functions of an agency under the GIPA Act.
(6) The Commissioner does not have the function of bringing proceedings for an offence under an Information Act.
29
Formal inquiries
29 Formal inquiries
29 Formal inquiries
(1) The Commissioner may make or hold inquiries for the purposes of an investigation that the Commissioner conducts under this Act.
(2) For the purposes of any inquiry under this section, the Commissioner has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before the Commissioner in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act is to have effect subject to section 27 (Limits on coercive powers because of privilege etc) of this Act.
(3) A witness appearing before the Commissioner is to be paid such amount as the Commissioner determines, but not exceeding the amount that would be payable to such a witness if he or she were a Crown witness subpoenaed by the Crown to give evidence.
30
Cabinet proceedings
30 Cabinet proceedings
30 Cabinet proceedings
(1) This Act does not enable the Commissioner—
(a) to require any person—
(i) to give any statement of information, or
(ii) to produce any record or other thing, or
(iii) to give a copy of any record, or
(iv) to answer any question,
if compliance with the requirement would disclose information that is Cabinet information, or
(b) to inspect any such record or thing.
(2) A certificate of the Secretary or General Counsel of the Cabinet Office that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section.
(3) In this section—
Cabinet information means information that is Cabinet information under clause 2 of Schedule 1 to the GIPA Act.
s 30: Am 2015 No 15, Sch 3.29; 2023 No 35, Sch 4.12[2].
Division 5
Disclosure of information
Division 5 Disclosure of information
Division 5 Disclosure of information
31
Commissioner may furnish information to Ombudsman
31 Commissioner may furnish information to Ombudsman
31 Commissioner may furnish information to Ombudsman
(1) The Commissioner may, at any time, furnish to the Ombudsman information obtained by the Commissioner in discharging functions under this or any other Act if the Commissioner is of the opinion that the information relates to conduct of an agency that could be the subject of a complaint under the Ombudsman Act 1974.
(2) However, the Commissioner must not disclose information that could not otherwise be disclosed under this Act or could not be obtained by the Ombudsman under the Ombudsman Act 1974 or any other Act.
31A
Commissioner may furnish information to Children’s Guardian
31A Commissioner may furnish information to Children’s Guardian
31A Commissioner may furnish information to Children’s Guardian
(1) The Commissioner may, at any time, furnish to the Children’s Guardian, information obtained by the Commissioner in discharging functions under this or any other Act if the Commissioner is of the opinion that the information relates to the conduct of an agency that could be the subject of a complaint under the Children’s Guardian Act 2019.
(2) However, the Commissioner must not disclose information that could not otherwise be disclosed under this Act or could not be obtained by the Children’s Guardian under the Children’s Guardian Act 2019.
s 31A: Ins 2019 No 25, Sch 5.20.
32
Commissioner may furnish information to ICAC, DPP and LECC
32 Commissioner may furnish information to ICAC, DPP and LECC
32 Commissioner may furnish information to ICAC, DPP and LECC
(1) The Commissioner may, at any time, furnish information obtained by the Commissioner in discharging functions under this or any other Act to the Director of Public Prosecutions, the Independent Commission Against Corruption or the Law Enforcement Conduct Commission.
(2) However, the Commissioner must not disclose information that could not otherwise be disclosed under this Act or could not—
(a) furnish to an agency information obtained by the Commissioner in discharging functions under this Act with respect to a complaint against or relating to the agency, and
(b) make such comments to the agency with respect to the complaint as the Commissioner thinks fit.
(2) The Commissioner may also furnish any or all of the information referred to in subsection (1) to any other agency, and may make such comments (if any) to that agency as the Commissioner considers appropriate, if—
(a) the Commissioner is satisfied that the information concerned is relevant to the functions, policies, procedures or practices of that other agency, and
34 Ombudsman may furnish information to Commissioner
34 Ombudsman may furnish information to Commissioner
(1) The Ombudsman may at any time furnish to the Commissioner information obtained by the Ombudsman in discharging functions under the Ombudsman Act 1974 or any other Act if the Ombudsman is of the opinion that the information relates to conduct of an agency that could be the subject of a complaint to the Commissioner under this Act.
(2) However, the Ombudsman must not disclose information that could not otherwise be disclosed under the Ombudsman Act 1974 or could not be obtained by the Commissioner under this or any other Act.
35
Restriction on disclosure of information by Commissioner
35 Restriction on disclosure of information by Commissioner
35 Restriction on disclosure of information by Commissioner
(1) The Commissioner must not, in the exercise of functions under this Act, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure, as provided by the GIPA Act, unless the disclosure is authorised under this Division.
(1A) Despite subsection (1), the Commissioner may, in the exercise of functions under this Act, disclose—
(a) identifying information, if the information is disclosed for a reason mentioned in the Public Interest Disclosures Act 2022, section 64(2), or
(2) Despite section 91 of the GIPA Act, the Commissioner may disclose information to the Privacy Commissioner in the course of consulting with the Privacy Commissioner under section 94 of the GIPA Act before making a recommendation against a decision of an agency that there is an overriding public interest against disclosure of the information.
s 35: Am 2012 No 60, Sch 7; 2022 No 14, Sch 8.8[1] [2].
Part 4
Reports by Commissioner
Part 4 Reports by Commissioner
Part 4 Reports by Commissioner
36
Annual report
36 Annual report
36 Annual report
(1) The Commissioner is, as soon as practicable after 30 June in each year, to prepare a report of the Commissioner’s work and activities for the 12 months preceding that date and is to furnish the report to the Presiding Officer of each House of Parliament.
(2) A copy of the report is to be provided to the Minister.
(2A) The report is to be included as part of the annual reporting information prepared for the Information and Privacy Commission under the Government Sector Finance Act 2018.
(3) Division 7.3 of the Government Sector Finance Act 2018 is, in its application to the annual reporting information prepared for the Information and Privacy Commission, modified as follows—
(a) the annual reporting information is to be given to the Presiding Officer of each House of Parliament and not to the responsible Minister for the Information and Privacy Commission,
(b) provisions of that Act relating to the giving of annual reporting information to the responsible Minister for a GSF agency and to the public availability of annual reporting information do not apply to the Commissioner or the Information and Privacy Commission.
(4) Section 39 (Procedure for reporting) applies to the annual reporting information for the Information and Privacy Commission as if it were a report made or furnished under this Part.
s 36: Am 2010 No 71, Sch 2 [4]–[7]; 2018 No 70, Sch 4.39[1] [2].
37
Report on operation of GIPA Act
37 Report on operation of GIPA Act
37 Report on operation of GIPA Act
(1) The Commissioner is, as soon as practicable after 30 June in each year, to prepare and publish a report on the operation of the GIPA Act (generally, across all agencies) for the 12 months preceding that date and is to furnish the report to the Presiding Officer of each House of Parliament.
(2) A copy of the report is to be provided to the Minister.
38
Special report to Parliament
38 Special report to Parliament
38 Special report to Parliament
(1) The Commissioner may, at any time, make a special report on any matter relating to the functions of the Commissioner to the Presiding Officer of each House of Parliament and must also provide the Minister with a copy of the report.
(2) The Commissioner may include in a report under this section a recommendation that the report be made public immediately.
39
Procedure for reporting
39 Procedure for reporting
39 Procedure for reporting
(1) Tabling A copy of a report made or furnished to the Presiding Officer of a House of Parliament under this Part must be laid before that House on the next sitting day of that House after it is received by the Presiding Officer.
(2) Public reports If a report includes a recommendation by the Commissioner that the report be made public forthwith, the Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House.
(3) Privileges and immunities A report that is made public by the Presiding Officer of a House of Parliament before it is laid before that House attracts the same privileges and immunities as it would if it had been laid before that House.
(4) Report procedures A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied as regards a report purporting to have been made or furnished in accordance with this Act.
(5) Reference to Presiding Officer In this Part, a reference to a Presiding Officer of a House of Parliament is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly. If there is a vacancy in the office of President, the reference to the President is taken to be a reference to the Clerk of the Legislative Council and, if there is a vacancy in the office of Speaker, the reference to the Speaker is taken to be a reference to the Clerk of the Legislative Assembly.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
40
Ombudsman required to consult
40 Ombudsman required to consult
40 Ombudsman required to consult
(1) If the Ombudsman receives a complaint under the Ombudsman Act 1974 about conduct of an agency that it appears could be the subject of a complaint to the Commissioner under this Act, the Ombudsman is to consult with the Commissioner on the matter.
(2) If the Commissioner decides to deal with the matter as a complaint under this Act—
(a) the complaint is (to the extent that it relates to conduct that could be the subject of a complaint under this Act) to be transferred to the Commissioner and dealt with as a complaint made to the Commissioner under this Act, and
(b) the Ombudsman is not to investigate the matter (and is to discontinue any investigation already commenced) to the extent that it relates to conduct that could be the subject of a complaint under this Act.
41
Commissioner, officer or expert as witness
41 Commissioner, officer or expert as witness
41 Commissioner, officer or expert as witness
(1) Neither the Commissioner nor a member of staff of the Commissioner is competent or compellable to give evidence or produce any document in any legal proceedings in respect of any information obtained by the Commissioner or member of staff in the course of the exercise of functions under this or any other Act.
(2) Subsection (1) does not apply to any legal proceedings—
(a) under section 27 (Limits on coercive powers because of privilege etc), 42 (Immunity of Commissioner and others) or 43 (Offences), or
(3) This section applies to a person whose services are engaged under section 16 in the same way as it applies to a member of staff of the Commissioner.
42
Immunity of Commissioner and others
42 Immunity of Commissioner and others
42 Immunity of Commissioner and others
(1) Neither the Commissioner nor a member of staff of the Commissioner is liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.
(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) cannot be brought against the Commissioner or a member of staff of the Commissioner without the leave of the Supreme Court.
(3) The Supreme Court is not to grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.
43
Offences
43 Offences
43 Offences
(1) A person must not—
(a) without lawful excuse, wilfully obstruct, hinder or resist the Commissioner or a member of staff of the Commissioner in the exercise of functions under this or any other Act, or
(b) without lawful excuse, refuse or wilfully fail to comply with any lawful requirement of the Commissioner under this or any other Act, or
(c) wilfully make any false statement to or mislead, or attempt to mislead, the Commissioner or a member of staff of the Commissioner in the exercise of functions under this or any other Act.
Maximum penalty—10 penalty units.
(2) A person must not directly or indirectly—
(a) falsely represent that he or she is the Commissioner or acting Commissioner, or
(b) falsely represent that he or she is a member of staff of the Commissioner.
Maximum penalty—10 penalty units.
(3) For the purposes of subsection (2), a person represents that a state of affairs exists if the person does or says anything, or causes, permits or suffers anything to be done or said, whereby it is represented, or whereby a belief may be induced, that the state of affairs exists.
(4) A person who uses, causes, inflicts or procures any violence, punishment, damage, loss or disadvantage to any person for or on account of—
(a) his or her making a complaint to the Commissioner, or
(b) his or her assisting the Commissioner, or
(c) any evidence given by him or her to the Commissioner,
is guilty of an indictable offence.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(5) An employer who dismisses any employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee assisting the Commissioner is guilty of an indictable offence.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(6) In any proceedings for an offence against subsection (5), it lies on the employer to prove that any employee shown to have been dismissed or prejudiced in his or her employment was so dismissed or prejudiced for some reason other than the reasons mentioned in subsection (5).
(7) In this section, a reference to a person assisting the Commissioner is a reference to a person who—
(a) has appeared, is appearing or is to appear as a witness before the Commissioner, or
(b) has complied with or proposes to comply with a requirement under section 25 (Agencies to give information etc), or
(c) has assisted, is assisting or is to assist the Commissioner in some other manner.
44
Oversight of Commissioner’s functions by Joint Committee
44 Oversight of Commissioner’s functions by Joint Committee
44 Oversight of Commissioner’s functions by Joint Committee
(1) The Joint Committee has the following functions under this Act—
(a) to monitor and review the exercise by the Commissioner of the Commissioner’s functions,
(b) to report to both Houses of Parliament, with such comments as it thinks fit, on any matter appertaining to the Commissioner or connected with the exercise of the Commissioner’s functions to which, in the opinion of the Joint Committee, the attention of Parliament should be directed,
(c) to examine each annual and other report of the Commissioner and report to both Houses of Parliament on any matter appearing in, or arising out of, any such report,
(d) to recommend to both Houses of Parliament any changes to the functions of the Commissioner that the Joint Committee thinks desirable,
(e) to inquire into any question in connection with its functions which is referred to it by both Houses of Parliament, and report to both Houses on that question.
(2) Nothing in this section authorises the Joint Committee—
(a) to investigate a matter relating to any particular conduct, or
(b) to reconsider any decision to investigate, not to investigate or to discontinue investigation of any particular matter, or
(c) to reconsider the findings, recommendations or other decisions of the Commissioner in relation to any particular matter.
(3) The provisions of Part 4A of the Ombudsman Act 1974 apply in relation to the Joint Committee’s functions under this Act in the same way as they apply in relation to the Joint Committee’s functions under that Act.
45
Personal liability of Commissioner and others
45 Personal liability of Commissioner and others
45 Personal liability of Commissioner and others
A matter or thing done (or omitted to be done) by the Commissioner, a member of staff of the Commissioner or a person acting under the direction of the Commissioner does not, if the matter or thing was done (or omitted to be done) in good faith for the purpose of executing this Act or any other Act, subject the Commissioner, the member of staff or the person so acting personally to any action, liability, claim or demand.
46
Proceedings for offences
46 Proceedings for offences
46 Proceedings for offences
(1) Except where otherwise expressly provided by this Act, proceedings for an offence against this Act are to be dealt with summarily before the Local Court.
(2) If an offence against this Act is an indictable offence, the Local Court may nevertheless hear and determine the proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent.
(3) If, in accordance with subsection (2), the Local Court convicts a person of such an offence, the maximum penalty that the court may impose is—
(a) in the case of an individual—the smaller of—
(i) a fine of 50 penalty units or imprisonment for 2 years, or both, or
(ii) the maximum penalty otherwise applicable to the offence when committed by an individual, or
(b) in the case of a corporation—the smaller of—
(i) a fine of 100 penalty units, or
(ii) the maximum penalty otherwise applicable to the offence when committed by a corporation.
s 46: Am 2009 No 106, Sch 4.17.
47
Regulations
47 Regulations
47 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
48
Review of Act
48 Review of Act
48 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1
Schedule 1
Schedule 1 (Repealed)
sch 1: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Government Information (Information Commissioner) Act 2009.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
agency has the same meaning as in the GIPA Act.
Commissioner means the Information Commissioner appointed under this Act.
exercise a function includes perform a duty.
function includes a power, authority or duty.
GIPA Act means the Government Information (Public Access) Act 2009.
Information Act means the GIPA Act and any other Act that is declared by the regulations to be an Information Act for the purposes of this Act.
Joint Committee means the Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission constituted under the Ombudsman Act 1974 or such other joint committee of members of Parliament as may be appointed to exercise the functions of the Joint Committee under this Act.
person has the same meaning as in the GIPA Act.
Privacy Commissioner means the Privacy Commissioner under the Privacy and Personal Information Protection Act 1998.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2010 No 71, Sch 2 [1]; 2016 No 61, Sch 6.21 [1].
Part 2 Appointment of Information Commissioner
Part 2 Appointment of Information Commissioner
Part 2 Appointment of Information Commissioner
4 Appointment of Information Commissioner
4 Appointment of Information Commissioner
4 Appointment of Information Commissioner
(1) The Governor may appoint an Information Commissioner.
(2) The Commissioner holds office for such term not exceeding 5 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
Once a complaint is received the Commissioner has a broad discretion under s 18 to decide whether to deal with it, make preliminary inquiries, or decline. If the Commissioner proceeds, s 19(1) lists non-exhaustive resolution methods—providing information, discussions, conciliation—before s 19(2) permits escalation to a formal investigation under Division 3. Investigations may be complaint-driven (s 22) or systemic (s 21). Systemic investigations can examine “the systems, policies and practices of agencies (or of agencies generally)” and must result in a report to the relevant Minister and principal officer (s 21(2)).
Coercive powers are significant but carefully bounded. Section 25 allows written requirements for statements of information, production of records, or entry onto premises (s 26). These powers are subject to three important limits:
Privilege (s 27): the Commissioner must not compel material that would attract client legal privilege or other judicial privileges unless it belongs to the agency itself or has been waived. However, public-interest immunity and agency secrecy obligations do not prevent compulsion.
Cabinet information (s 30): an absolute bar. A certificate from the Secretary or General Counsel of the Cabinet Office is conclusive. “Cabinet information” takes its meaning from cl 2 of Sch 1 to the GIPA Act.
Royal Commissions overlay (s 29): when the Commissioner conducts a formal inquiry, the Royal Commissions Act 1923 (with modifications) supplies additional powers, but s 27’s privilege rules prevail over s 11(2) of that Act.
Enforcement ultimately lies with the Supreme Court. Section 28 confers standing on the Commissioner to seek injunctions to restrain or compel conduct that would breach an Information Act. Subsection (5) further gives the Commissioner standing to bring judicial review proceedings in relation to GIPA functions—an important safeguard against agency circumvention. Notably, however, the Commissioner has no prosecutorial function (s 28(6)); offences under the IC Act or GIPA Act are handled by the DPP or agencies themselves.
Reporting obligations are multi-layered. Section 36 requires an annual report on the Commissioner’s own activities, now integrated into the Information and Privacy Commission’s reporting under the Government Sector Finance Act 2018 (with modifications that route the report directly to the Presiding Officers rather than a Minister). Section 37 requires a separate public report on the operation of the GIPA Act across all agencies. Special reports to Parliament may be made at any time (s 38), and the Joint Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission exercises ongoing oversight (s 44).
In short, the IC Act does not itself create new access rights; it creates the institutional machinery and behavioural norms necessary to make the GIPA presumption of disclosure real. It balances robust investigative powers against explicit carve-outs for Cabinet confidentiality and judicial privileges, while embedding the Commissioner within a broader integrity ecosystem that includes the Ombudsman, ICAC, LECC and Children’s Guardian.
Who it affects
The IC Act directly affects four main groups.
1. Public sector agencies (defined by reference to the GIPA Act, s 3(1)). Every Minister, department, local council, state-owned corporation and public authority is subject to the Commissioner’s investigative, information-gathering and reporting powers. Section 25 obligations are cast in mandatory language; non-compliance attracts the offence provisions in s 43. Agencies must also respond to s 24 reports by notifying the Commissioner of action taken or proposed.
2. The Information Commissioner and their staff. The Commissioner is a statutory office holder, not a public servant (s 10). Staff are engaged under the Government Sector Employment Act 2013 but may be styled “officers or employees of the Commissioner” (s 12 and note). The Commissioner also sits as Chairperson of the Information and Privacy Advisory Committee (s 11(1)). Delegation is permitted to staff or to classes of persons prescribed by regulation (s 13), but the power of delegation itself cannot be delegated.
3. Individual complainants and members of the public. Any “person” may make a complaint (s 17). The Act is deliberately broad; there is no standing test beyond the ordinary meaning of “person”. Whistle-blowers receive additional protection: s 43(4)–(6) create indictable offences (maximum 200 penalty units or 5 years imprisonment) for reprisals against those who complain, assist the Commissioner or give evidence. The Public Interest Disclosures Act 2022 overlay in s 35(1A) further protects identifying information.
4. Oversight bodies and Parliament. The Joint Committee (defined by reference to the Ombudsman Act 1974) receives monitoring, reporting and recommendation functions (s 44). The Ombudsman, ICAC, LECC, DPP and Children’s Guardian are both recipients of information from the Commissioner (ss 31, 31A, 32) and sources of information to the Commissioner (s 34). The Presiding Officers of both Houses are the ultimate recipients of annual, GIPA-operation and special reports (ss 36–39).
The Act does not apply to the Commissioner’s own conduct in a way that creates circularity; s 44(2) expressly prevents the Joint Committee from investigating individual complaints or reconsidering the Commissioner’s decisions on particular matters.
Key duties and rights
Commissioner’s duties
Act informally and on the substantial merits (s 15).
Give notice to complainants of decisions to deal (or not deal) with complaints and the proposed method (s 20).
Afford procedural fairness before making adverse comments (s 23(3)).
Consult the relevant Minister before publishing a report containing adverse comment on an agency (s 23(4)).
Report compliance failures to the Minister, principal officer and (for public servants) the Secretary of the Premier’s Department (s 24(1)).
Maintain secrecy obligations (s 35) while facilitating appropriate information sharing with integrity agencies.
Agency duties
Comply with written requirements under s 25.
Facilitate entry and inspection (s 26).
Notify the Commissioner of action taken on s 24 reports (s 24(3)).
Refrain from conduct that would breach an Information Act (enforceable by injunction under s 28).
Individual rights
Right to complain (s 17).
Right to be heard during investigations (s 23(2)).
Protection from reprisals (s 43(4)–(6)).
Right to receive notice of investigation decisions and discontinuances (s 22).
Parliamentary rights
The Joint Committee’s statutory monitoring and recommendation functions (s 44(1)).
Automatic tabling and publication mechanisms (s 39).
Penalties and enforcement
The offence regime in s 43 is graduated. Summary offences (maximum 10 penalty units) cover obstruction, failure to comply with lawful requirements, misleading the Commissioner, and false representation of authority (s 43(1)–(2)). More serious indictable offences (200 penalty units or 5 years imprisonment, or both) address reprisals against complainants or witnesses (s 43(4)) and employer victimisation (s 43(5)). The reverse onus in s 43(6) is notable: once dismissal or prejudice is shown, the employer must prove it occurred for a reason other than the prohibited one.
Proceedings are normally summary before the Local Court (s 46(1)), but indictable matters may be dealt with summarily with consent and subject to reduced maximum penalties (s 46(2)–(3)).
Civil enforcement is by Supreme Court injunction on the Commissioner’s application (s 28). The Commissioner also enjoys statutory immunity (s 42) that can only be displaced by leave of the Supreme Court upon a showing of substantial grounds for bad faith. A separate good-faith protection appears in s 45.
How it interacts with other laws
The IC Act is deliberately embedded in a web of integrity legislation.
GIPA Act: the primary “Information Act”. The IC Act supplies the external review and oversight layer that complements NCAT’s merits review jurisdiction. Section 35(2) expressly permits disclosure to the Privacy Commissioner during s 94 GIPA consultations.
Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002: the Commissioner and Privacy Commissioner are distinct offices (s 4(3A) prevents dual appointment), yet they must consult (s 35(2)) and may share non-personal information (s 33(2)).
Ombudsman Act 1974: mandatory consultation where complaints overlap (s 40). Information exchange is bidirectional (ss 31, 34). The same Joint Committee oversees both offices.
Law Enforcement Conduct Commission Act 2016, Independent Commission Against Corruption Act 1988, Children’s Guardian Act 2019: information-sharing gateways (ss 31A, 32) allow the Commissioner to pass material without waiving the originating Act’s restrictions.
Royal Commissions Act 1923: supplies procedural powers for formal inquiries (s 29) but is expressly modified by s 27 privilege rules.
Government Sector Finance Act 2018 and Government Sector Employment Act 2013: govern reporting and staffing with specific carve-outs (ss 10, 12, 36).
Public Interest Disclosures Act 2022: overrides the general secrecy rule in s 35(1) for PID-related identifying information (s 35(1A)).
The cumulative effect is a coordinated integrity ecosystem in which the Commissioner is both a recipient and a provider of protected information.
Recent changes and why
The Act has been amended on nine occasions since 2009. Key changes include:
2010 amendments (No 71) refined appointment, acting appointment and reporting provisions following early operational experience.
2014 amendments (No 33) updated references from the Public Sector Employment and Management Act 2002 to the Government Sector Employment Act 2013, reflecting machinery-of-government reform.
2016 amendments (No 61) updated cross-references to the newly created Law Enforcement Conduct Commission.
2018 amendments (No 70) integrated the Commissioner’s annual reporting into the Information and Privacy Commission’s whole-of-office reporting under the Government Sector Finance Act 2018, removing ministerial tabling requirements to reinforce independence.
2019 insertion of s 31A to permit information sharing with the Children’s Guardian.
2022 amendments (No 14) aligned s 35 with the new Public Interest Disclosures Act 2022, adding the current subsections (1A) and (3).
2023 amendments (No 35) updated references to the Premier’s Department and Cabinet Office.
These changes have been largely technical or integrative, responding to the creation of new integrity bodies, privacy convergence, and evolving public interest disclosure law. The 2018 reporting reforms were particularly significant because they removed the Commissioner from direct ministerial accountability for annual reporting, reinforcing perceived independence.
Court challenges and controversies
Because the Commissioner’s functions are largely facilitative and non-determinative, direct judicial review of the Commissioner is rare. The leading authorities instead concern the boundaries of the Commissioner’s coercive powers.
In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (pre-dating the IC Act but frequently cited in GIPA litigation) the High Court emphasised that statutory powers must be read in light of their statutory purpose—here, transparency. More recent NSW cases have tested s 27 privilege limits. In Independent Commission Against Corruption v C [2014] NSWCA 87 the Court of Appeal confirmed that client legal privilege is not displaced by analogous coercive powers unless the statute clearly so provides; s 27(1) of the IC Act expressly preserves that position for non-agency privilege.
Controversy has also surrounded the relationship between the Commissioner and NCAT. Some agencies have argued that once a GIPA matter is before NCAT the Commissioner should decline to investigate parallel complaints. The Commissioner’s practice (consistent with the note to s 17) has been to focus on systemic or procedural failings rather than the correctness of individual decisions.
The absolute Cabinet exemption in s 30 has never been successfully challenged, the conclusive certificate mechanism mirroring long-standing provisions in freedom-of-information legislation. In practice the Commissioner has used s 30(2) certificates sparingly, preferring to negotiate redaction or alternative sources of information.
Gotchas
Most practitioners assume the Commissioner’s role is limited to GIPA. In fact s 3(1) permits any Act to be declared an “Information Act” by regulation; a future government could expand the regime overnight without primary legislation. Watch for regulatory creep.
Section 35(1) secrecy is broader than many realise. It prohibits disclosure of any information for which there is (or an agency claims there is) an overriding public interest against disclosure under the GIPA Act. The “claim” trigger means agencies can effectively freeze disclosure by assertion, forcing the Commissioner to litigate or negotiate. The 2022 PID carve-out in s 35(1A) is narrower than many expect—it applies only to “identifying information” for specific statutory purposes.
The immunity provisions (ss 42 and 45) are strong but not absolute. Both require “good faith”. The Supreme Court’s gatekeeper role under s 42(2)–(3) has never been tested in a reported decision, leaving uncertainty about the evidentiary threshold for “substantial ground”.
Section 28(5) standing for judicial review is a sleeping giant. It allows the Commissioner to challenge agency GIPA decisions directly, bypassing the usual applicant. Agencies that adopt overly cautious “neither confirm nor deny” postures on sensitive contracts may find themselves respondents in Supreme Court proceedings brought by the Commissioner rather than an individual applicant.
Finally, the two-term limit in s 4(3) is absolute. Even a person of exceptional independence cannot be re-appointed for a third term, however short. This has produced periodic transitions that can disrupt institutional memory, especially given the part-time nature of the parallel Privacy Commissioner role.
How to comply
For agencies
Maintain a central register of s 25 notices and treat them with the same urgency as NCAT summonses.
Train FOI/GIPA officers on the procedural fairness obligations in s 23(2)–(3); an adverse comment in a Commissioner’s report can damage reputation even if no enforceable order is made.
Develop a “Commissioner response protocol” that identifies the principal officer’s personal responsibility under ss 21(2) and 24(3).
Never assert Cabinet exemption lightly; a s 30(2) certificate is conclusive but politically visible and may trigger special reporting.
Integrate IC Act complaint data into your annual GIPA statistical return so that systemic trends can be addressed before a s 21 investigation commences.
For legal practitioners advising complainants
Advise clients that a complaint is not a substitute for NCAT review. Use the complaint route for delay, process failures or systemic bias; use NCAT for merits override.
Request the Commissioner to investigate under s 21 rather than merely conciliate under s 19 where evidence of widespread non-compliance exists.
Remember that s 43(4)–(6) reprisal offences carry custodial penalties; document any adverse action post-complaint meticulously.
For the Commissioner’s office
Document the s 18 decision-making process with sufficient detail to withstand potential judicial review for Wednesbury unreasonableness.
Use the s 16 expert assistance power liberally when technical records (IT systems, complex contracts) are involved.
Maintain strict separation between conciliation (s 19(1)(c)) and investigation (Division 3) staff to avoid apprehended bias arguments.
General compliance tip
Treat every Commissioner notice as if it were a parliamentary committee summons. The political accountability that flows from a special report under s 38 can be more damaging than any court order. Early, transparent cooperation almost always produces a better outcome than legalistic resistance.
(3) A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).
(3A) A person is not eligible to be appointed as Information Commissioner or to act in that office if the person is the Privacy Commissioner.
(4) A person is not eligible to be appointed as Commissioner or to act in that office if the person is a member of the Legislative Council or of the Legislative Assembly or is a member of a House of Parliament or legislature of another State or Territory or of the Commonwealth.
(5) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Governor.
s 4: Am 2010 No 71, Sch 2 [2].
5 Veto of proposed appointment of Commissioner
5 Veto of proposed appointment of Commissioner
5 Veto of proposed appointment of Commissioner
(1) A person is not to be appointed as Commissioner until—
(a) a proposal that the person be so appointed has been referred to the Joint Committee under section 31BA of the Ombudsman Act 1974, and
(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.
(2) A person may be proposed for appointment on more than one occasion.
(3) In this section, appointment includes re-appointment.
6 Remuneration
6 Remuneration
6 Remuneration
(1) The Commissioner is entitled to be paid—
(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may from time to time determine.
(2) The Commissioner is not, if a Judge of a New South Wales Court and while receiving remuneration as such a Judge, entitled to remuneration under this Act.
7 Vacancy in office
7 Vacancy in office
7 Vacancy in office
The office of Commissioner becomes vacant if the holder—
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Governor, or
(d) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(h) is removed from office under section 8.
8 Removal from office
8 Removal from office
8 Removal from office
(1) The Governor may remove the Commissioner from office on the address of both Houses of Parliament.
(2) The Governor may suspend the Commissioner from office—
(a) for misbehaviour, or
(b) for incapacity, or
(c) if the Commissioner is absent from duty for a period in excess of his or her leave entitlement as approved by the Governor unless the absence is caused by illness or other unavoidable cause.
(3) The Minister is to lay or cause to be laid before each House of Parliament, within 7 sitting days of that House after the Commissioner has been suspended from office, a full statement of the grounds for the suspension.
(4) The suspension is to be lifted unless each House of Parliament, within 21 sitting days from the time when the statement was laid before it, declares by resolution that the Commissioner ought to be removed from office.
(5) If each House does so declare within that period, the Commissioner is to be removed from office by the Governor.
(6) For the purposes of this section, sitting days are to be counted whether or not they occur in the same session.
9 Filling of vacancy
9 Filling of vacancy
9 Filling of vacancy
If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
10 Commissioner not Public Service employee
10 Commissioner not Public Service employee
10 Commissioner not Public Service employee
The office of Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office.
s 10: Subst 2014 No 33, Sch 3.7 [1].
11 Appointment of acting Commissioner
11 Appointment of acting Commissioner
11 Appointment of acting Commissioner
(1) The Minister may, from time to time, appoint a person to act in the office of the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of the Commissioner. The person, while so acting, has all the functions of the Commissioner and is taken to be the Commissioner (including as Chairperson of the Information and Privacy Advisory Committee under the Privacy and Personal Information Protection Act 1998).
(2) The Minister may, at any time, remove a person from office as acting Commissioner.
(3) An acting Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
s 11: Am 2010 No 71, Sch 2 [3].
12 Staff of Commissioner
12 Staff of Commissioner
12 Staff of Commissioner
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise his or her functions.
Note—
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
s 12: Subst 2014 No 33, Sch 3.7 [2].
13 Delegation
13 Delegation
13 Delegation
The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to—
(a) any member of staff of the Commissioner, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Division 1 General functions of Commissioner
Division 1 General functions of Commissioner
Division 1 General functions of Commissioner
14 General functions
14 General functions
14 General functions
The Commissioner has such functions as may be conferred or imposed on the Commissioner by or under this or any other Act.
15 General procedures of Commissioner
15 General procedures of Commissioner
15 General procedures of Commissioner
The Commissioner—
(a) is to act in an informal manner (including avoiding conducting formal hearings) as far as possible, and
(b) is to act according to the substantial merits of the case without undue regard to technicalities, and
(c) may determine the procedures to be followed in exercising the Commissioner’s functions under this Act, including the procedures to be followed at an inquiry or investigation conducted by the Commissioner, and
(d) is not bound by the rules of evidence and may inform himself or herself on any matter in any way that the Commissioner considers to be just.
16 Expert assistance
16 Expert assistance
16 Expert assistance
For the purposes of the exercise of any of the Commissioner’s functions, the Commissioner may engage the services of any person for the purpose of getting expert assistance.
Division 2 Complaints
Division 2 Complaints
Division 2 Complaints
17 Making of complaint
17 Making of complaint
17 Making of complaint
Any person may complain to the Commissioner about the conduct (including action or inaction) of an agency in the exercise of functions under an Information Act, including conduct that is alleged by the person to constitute a contravention of an Information Act.
Note—
A decision of an agency that is reviewable under the GIPA Act cannot be the subject of a complaint to the Commissioner (even if the person is out of time to apply for review of the decision). See section 89 (4) of the GIPA Act.
18 Decision to deal with complaint
18 Decision to deal with complaint
18 Decision to deal with complaint
(1) The Commissioner may decide to deal with a complaint or to decline to deal with a complaint.
(2) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a complaint and may request further information from the complainant.
19 How complaints are dealt with
19 How complaints are dealt with
19 How complaints are dealt with
(1) The Commissioner deals with a complaint by taking appropriate measures to assist in the resolution of the complaint, including (but not limited to) any of the following measures—
(a) providing information to the parties to the complaint,
(b) undertaking discussions concerning the complaint with the parties to the complaint,
(c) facilitating the direct resolution of the complaint by the parties to the complaint (including by conciliation or other informal process).
(2) The Commissioner can also deal with a complaint by investigating the complaint under Division 3.
20 Notice to complainant
20 Notice to complainant
20 Notice to complainant
The Commissioner must give notice to the complainant of the Commissioner’s decision on whether to deal with the complaint and (if the Commissioner decides to deal with the complaint) how the complaint is to be dealt with.
Division 3 Investigations
Division 3 Investigations
Division 3 Investigations
21 Investigation of agency systems, policies and practices
21 Investigation of agency systems, policies and practices
21 Investigation of agency systems, policies and practices
(1) The Commissioner may investigate and report on the exercise of any functions of one or more agencies under an Information Act, including the systems, policies and practices of agencies (or of agencies generally) that relate to functions of agencies under an Information Act.
(2) The Commissioner is to give a report under this section—
(a) to the Minister responsible for any agency to which the report relates, and
(b) to the principal officer of an agency that is the subject of the report.
22 Investigation of complaints
22 Investigation of complaints
22 Investigation of complaints
(1) If the Commissioner decides to investigate a complaint, the Commissioner must give notice to the complainant of the decision to investigate and must give notice to an agency of the Commissioner’s decision to investigate a complaint about the agency.
(2) The Commissioner may discontinue an investigation of a complaint at any time and is to give notice of the discontinuation of an investigation to the complainant and the agency concerned.
23 Procedure for investigations
23 Procedure for investigations
23 Procedure for investigations
(1) An investigation under this Act is to be made in the absence of the public.
(2) In an investigation under this Act, the Commissioner must give an opportunity to make submissions on the matter the subject of the investigation—
(a) if practicable, to the agency whose conduct is the subject of investigation, and
(b) in the case of an investigation of a complaint—to the complainant.
(3) Where, in an investigation under this Act, the Commissioner considers that there are grounds for adverse comment in respect of any person, the Commissioner, before making any such comment in any report, must, in so far as it is practicable to do so—
(a) inform that person of the substance of the grounds of the adverse comment, and
(b) give the person an opportunity to make submissions.
(4) Before publishing a report on an investigation that makes an adverse comment in respect of an agency, the Commissioner must inform the Minister responsible for the agency that the Commissioner proposes to publish such a report and must, at the request of that Minister, consult the Minister.
24 Report on compliance with Information Act
24 Report on compliance with Information Act
24 Report on compliance with Information Act
(1) Where, in an investigation under this Act, the Commissioner finds that any conduct of an agency the subject of the investigation is conduct that constitutes a failure to exercise its functions properly in accordance with any provision of an Information Act, the Commissioner must report the matter—
(a) to the
This is an opening excerpt, not the complete document.