State and territory government business enterprises

38.28 A number of state and territory authorities are government business enterprises (GBEs). GBEs provide a range of services, including communications, transport, employment and health services. The three characteristics that identify GBEs are:

the Government controls the body; the body is principally engaged in commercial activities; and the body has a legal personality separate to a department of government.[36]

38.29 A state or territory GBE may be a body corporate established by legislation for a public purpose (state-owned or statutory corporations), or a company established under corporations law in which a state or territory government has a controlling interest.

38.30 Currently, there is inconsistent coverage of state and territory statutory corporations under state and territory privacy laws. For example, statutory corporations are covered by privacy legislation in Victoria but not in New South Wales.[37] In Tasmania, GBEs are covered by privacy legislation.[38] The exemption for statutory corporations in New South Wales was originally justified on the basis that statutory corporations should not be put at a competitive disadvantage with the private sector. The then Attorney General of New South Wales, the Hon Jeff Shaw MLC, stated that:

When the Act evolves to include coverage of the private sector, State-owned corporations will be similarly covered by the information and privacy principles of the legislation. The Government intends to address this issue in detail following the March 1999 election.[39]

38.31 New South Wales legislation has not yet been amended to cover statutory corporations.

[36] Administrative Review Council, Report to the Minister of Justice: Government Business Enterprises and Commonwealth Administrative Law, Report 38 (1995), 7.

[37] The Information Privacy Act 2000 (Vic) applies to ‘public sector agency’, ie, a public service body or a public entity within the meaning of the Public Administration Act 2004 (Vic): Information Privacy Act 2000 (Vic) ss 3, 9(1)(c). Under the Public Administration Act, public entities include bodies that are established by or under an Act (other than a private Act) or the Corporations Act: Public Administration Act 2004 (Vic) s 5. In New South Wales privacy legislation, the definition of ‘public sector agency’ expressly excludes ‘a state owned corporation’: Privacy and Personal Information Protection Act 1998 (NSW) s 3.

[38] Under the Personal Information Protection Act 2004 (Tas) a public sector body includes a GBE under the Government Business Enterprises Act 1995 (Tas): Personal Information Protection Act 2004 (Tas) s 3.

[39] New South Wales, Parliamentary Debates, Legislative Council, 25 November 1998, 10592 (J Shaw—Attorney General).