Fact Sheet - How the GIPA Act applies to agencies' wholly-owned subsidiaries
This fact sheet appears below or can be viewed and downloaded here Fact Sheet - How the GIPA Act applies to agencies' wholly-owned subsidiaries, updated December 2022
This fact sheet aims to provide guidance on when agencies’ wholly-owned subsidiary entities are captured under the Government Information (Public Access) Act 2009 (GIPA Act).
The IPC Fact Sheet: What is an agency? also provides guidance on when an agency is captured under the GIPA Act.
This is important to know because some agencies’ wholly-owned subsidiaries may be required to comply with the GIPA Act in the same way as agencies.
Wholly-owned subsidiaries under the GIPA Act
The GIPA Act applies to public authorities including wholly-owned subsidiaries of the Crown in right of the State or of a public authority. The Government Information (Public Access) Regulation 2018 NSW (GIPA Regulation) can also declare entities to be public authorities.
This fact sheet provides guidance on when wholly-owned subsidiaries of agencies are captured under the GIPA Act.
A wholly-owned subsidiary of a public authority that is an incorporated company or association will not be captured by the GIPA Act unless declared in the GIPA Regulations. These wholly-owned subsidiaries will be required to comply with the GIPA Act in the same way as agencies.
Factors to consider
The following factors will impact upon whether a wholly-owned subsidiary entity is captured by the GIPA Act:
Whether the entity is a wholly-owned subsidiary of a public authority
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Whether the entity is an incorporated company or an association
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Whether the entity has been declared to be a public authority by the GIPA Regulations
Example 1
Is the following entity captured under the GIPA Act?
The entity has the following characteristics:
- It is a wholly-owned subsidiary of a university
- The wholly-owned subsidiary is a company limited by shares
- The wholly-owned subsidiary has not been declared a public authority by the GIPA Regulations.
This entity is not a public authority and therefore is not an agency. This is because the wholly-owned subsidiary is an incorporated company and it has not been declared to be a public authority by the GIPA Regulations.
The incorporated company therefore, as identified in clause 2(3)(a) of Schedule 4 of the GIPA Act, falls outside the definition of a public authority.
Example 2
Is the following entity captured under the GIPA Act?
The entity has the following characteristics:
- It is a wholly-owned subsidiary of a state-owned corporation
- The wholly-owned subsidiary is a proprietary company
- The wholly-owned subsidiary has not been declared a public authority by the GIPA Regulations.
This entity is not a public authority and therefore is not an agency. This is because the wholly-owned subsidiary is an incorporated company, and it has not been declared to be a public authority by the GIPA Regulations.
The incorporated company therefore, as identified in clause 2(3)(a) of Schedule 4 of the GIPA Act, falls outside the definition of a public authority.
Example 3
Is the following entity captured under the GIPA Act?
The entity has the following characteristics:
- It is a wholly-owned subsidiary of a public authority
- The wholly-owned subsidiary is not an incorporated company or association
- The wholly-owned subsidiary has been established for a public purpose under the provisions of a legislative instrument.
This entity is a public authority and therefore is an agency.
For more information
Contact the Information and Privacy Commission NSW (IPC):
Freecall: 1800 472 679
Email: ipcinfo@ipc.nsw.gov.au
Website: www.ipc.nsw.gov.au
NOTE: The information in this Fact Sheet is to be used as a guide only. Legal advice should be sought in relation to individual circumstances.
