5What are public entities?

5 What are public entities? (1) For the purposes of this Act a public entity is a body, whether corporate or unincorporated— (a) that is established— (i) by or under an Act (other than a private Act) or the Corporations Act; or (ii) by the Governor in Council; or (iii) by a Minister; and S. 5(1)(b) amended by No. 80/2006 s. 7(1). (b) in the case of a body corporate, the right to appoint at least one half of the directors of which is vested in the Governor in Council or a Minister or could have been so vested in the case of a body corporate established by an Order made by the Governor in Council or a Minister under the power given by the Act under which the Order is made; and (c) that has a public function to exercise on behalf of the State or is wholly owned by the State; and (d) in the case of a body that does not have any function to exercise other than the provision of advice or a report to any person or body— (i) has written terms of reference guiding its operation; and (ii) is required to provide the advice or report to a Minister or the Government; and (iii) is declared to be a public entity for the purposes of this Act— (A) by the Act or subordinate instrument or other document under which it is established; or (B) by an Order under subsection (3)— but does not include— S. 5(1)(da) inserted by No. 80/2006 s. 7(2). (da) a Department or an Administrative Office; or (e) an exempt body; or (f) a special body in its capacity as a special body; or S. 5(1)(fa) inserted by No. 67/2014 s. 139. (fa) a Royal Commission, Board of Inquiry or Formal Review; or S. 5(1)(g) amended by No. 79/2008 s. 21. (g) a registered community health centre within the meaning of the **Health Services Act 1988** or a body that provides aged care services that is, or is capable of being, registered under that Act; or (h) a body, or a class of body, that is declared by an Order under subsection (2) not to be a public entity for the purposes of this Act. S. 5(1A) inserted by No. 20/2005 s. 48. (1A) To avoid doubt and without limiting subsection (1), the following are public entities for the purposes of this Act— S. 5(1A)(a) substituted by Nos 24/2006 s. 6.1.2(Sch. 7 item 33.2(a)), 58/2007 s. 54(1), amended by Nos 76/2013 s. 26, 31/2018 s. 72(1)(a). (a) a TAFE institute within the meaning of the **Education and Training Reform Act 2006**; S. 5(1A)(b) amended by Nos 24/2006 s. 6.1.2(Sch. 7 item 33.2(b)), 58/2007 s. 54(2), 31/2018 s. 72(1)(b)(2), 32/2022 s. 64. (b) AMES Australia within the meaning of the **Education and Training Reform Act 2006**. S. 5(1B) inserted by No. 6/2014 s. 19. (1B) For the purposes of this Act, a body that would be a subsidiary, within the meaning of the Corporations Act, of a public entity if both the body and the public entity were bodies corporate to which that Act applies, is also a public entity. (2) The Governor in Council may, by Order published in the Government Gazette, declare a body, or a class of body, not to be a public entity for the purposes of this Act. (3) The Governor in Council may, by Order published in the Government Gazette, declare a body, or a class of body, that does not have any function to exercise other than the provision of advice or a report to any person or body and that satisfies the requirements of subsection (1)(d)(i) and (ii) to be a public entity for the purposes of this Act. (4) If an exempt body is a public entity for the purposes of this Act in a capacity other than its capacity as an exempt body, nothing in this Act that applies to the body as a public entity applies to the body in its capacity as an exempt body. A municipal council is appointed as a committee of management under section 14(2) of the **Crown Land (Reserves) Act 1978**. As a committee of management the municipal council is a public entity as it is established under an Act with a public function to exercise on behalf of the State. It is not, however, a public entity in its ordinary role as a municipal council because, in that role, it is an exempt body and exempt bodies are not public entities. (5) If— (a) a provision of an Act other than this Act has the effect that a body (an **advisory body**) or a member of an advisory body or of the governing body (by whatever name called) of an advisory body is not subject to this Act— (i) other than Part 5; or (ii) other than Part 5 or except in accordance with Part 7; and (b) the advisory body does not have any function to exercise other than the provision of advice or a report to any person or body— despite the provision of that other Act, the advisory body is not a public entity for the purposes of this Act unless the requirements of subparagraphs (i), (ii) and (iii) of subsection (1)(d) are satisfied in respect of it. (6) If a provision of an Act other than this Act has the effect that a body (a **relevant body**) or a member of a relevant body or of the governing body (by whatever name called) of a relevant body is not subject to this Act— (a) other than Part 5; or (b) other than Part 5 or except in accordance with Part 7— despite the provision of that other Act, the relevant body may be declared by an Order under subsection (2) not to be a public entity for the purposes of this Act.