There is a large body of Acts of Parliament that apply to a public entity in Victoria, including legalisation aimed at improving administration.
Public Administration Act 2004
A public entity is defined in the Public Administration Act 2004. The Act, among other things, establishes a comprehensive framework to ensure good governance of the whole of the Victorian public sector, including providing for the governance of public entities in Victoria.
Under s. 5, a Victorian public entity is a body, whether corporate or unincorporated that is established by or under an Act (other than a private Act such as Acts establishing Church property trusts) including the Corporations Act (Cwlth), by the Governor in Council, or by a minister.
The Act applies a further set of tests in relation to certain forms of public entity. In the case of a body corporate, the Governor in Council or the relevant minister must have the right to appoint at least one half of the directors. Section 5(1)(c) requires that the body have a public function to exercise on behalf of the state or be wholly owned by the state. It should be noted that some public entities are not covered by the Act and are exempt, including courts, universities and local councils as listed in s. 4.
Under s. 81 of the Act the board must:
- act consistently with the functions and objectives of the public entity and with any document related to the public entity’s work program, such as the public entity’s business or strategic plan inform the responsible minister and the relevant departmental secretary of both known major risks to the effective operation of the public entity and the risk management systems in place to address the risks and identify any new risks provide any information about the public entity that the minister, or the department as representative of the minister, asks for unless prohibited by law ensure adequate performance assessment arrangements are in place for directors apply the Directors’ Code of Conduct issued by the Public Sector Standards Commissioner under s. 63 and ensure that processes are in place to achieve compliance ensure that processes are in place to deal with directors’ conflicts of interest ensure that an adequate gifts policy is in place for most public entity types, ensure that adequate procedures are in place for running meetings, making decisions at meetings, providing for directors, and ensuring that appropriate records of meetings are kept ensure that appropriate financial records are kept ensure that adequate controls are in place to prevent fraudulent behaviour for most public entity types, ensure audit of accounts by the Auditor-General.
The board is accountable to the responsible minister for the exercise of its functions (s. 85).
The board must provide any requested financial information to the Minister for Finance (s. 93).
The public entity must keep and make readily available to directors (s. 95) the following:
- A register of documents concerning the accountable and reporting arrangements of the public entity. Any document from the responsible minister outlining the respective roles of, and relationships between, the public entity, department and minister. Any document issued to the public entity by the responsible minister outlining the terms of appointment of directors and their roles and responsibilities. A copy of any corporate plan approved by the responsible minister containing a statement of corporate intent, a business plan and financial statements, a copy of annual reports and any other planning document specified by the minister. Small public entities may not be required to hold some of these documents. The Act allows for that by not requiring access to some of these documents in those cases.
A public entity’s establishing legislation may identify additional roles for the board, over and above what is indicated above.
Public Records Act 1973
The Public Records Act 1973 applies to a public entity under the Public Administration Act 2004 that is created by statute.
The Public Records Act:
- establishes the Public Record Office establishes the Office of Keeper of Public Records who manages and controls the Public Record Office and the public records it holds preserves and secures public records establishes a logical and orderly classification of public records and publication of indexes to help ensure documents are accessible reproduces public records for official and other purposes certifies copies of public records as authentic copies provides public access to public records improves standards for efficient management, security and preservation of public records under the control of public officers.
A public officer is any person employed in a public office. A public office is, among other things, any public statutory body, corporate or unincorporated, or a state owned enterprise under the State Owned Enterprises Act 1992.
Compliance with the Public Records Act
A board should ensure that the public entity has procedures in place to manage the holding, disposal and transfer of public records in accordance with the Public Records Act.
A public record is any record made or received by a public officer in the course of their duties. A record is any document within the meaning of the Evidence Act 2008, that is, a document in writing, a book, map, plan, graph, drawing, photograph, label, disc, tape, sound track, other device in which sounds or other data are embodied, film, negative, tape, and anything containing code words. Emails are included.
The Keeper of Public Record (s. 7) is responsible for:
- preservation and security of public records under their control classification of such records and publication of guides facilitating their use duplication and reproduction of public records for official use authentication of records required as evidence.
The Keeper of Public Records assists public officers to apply these standards to records under their control.
The Public Record Office website contains comprehensive standards and procedures for the management of public records and comprehensive advice on what a public entity needs to do.