Application of Section 9 FOI Act
Relevant considerations
1. Is the entity a body?
'Body' is not defined in the FOI Act or Acts Interpretation Act 1954 (Qld). However, the Information Commissioner has found that:
The body does not need to be incorporated to be considered a 'public authority' under section 9 of the FOI Act.
a) Is the body established for a public purpose by an enactment?
Under section 9(1)(a)(i) of the FOI Act, a body will be a public authority if it is established by an enactment and for a public purpose.
The Information Commissioner considered the ordinary and natural meaning of the word 'established' requires the body to be:14
- established by an enactment; and
- established for a public purpose.
Established by an enactment
The Information Commissioner was satisfied that the word 'by' in the phrase 'established by an enactment' means the body 'must be effected by, ie, directly provided for in, an enactment'.15 Accordingly, it is necessary to consider the legislation establishing the present incarnation of the body in question.16 The Information Commissioner considered, for instance, that a body established pursuant to a partnership agreement is not established by the Partnership Act 1891 (Qld) as an enactment.17
The present tense of the verb 'is', used in the phrase 'is established', is merely descriptive of the purpose for establishing the body in question.18
Established for a public purpose
In determining whether a body is 'established for a public purpose', the test is whether at least one of the major purposes for its establishment (as distinct from a minor or ancillary purpose) is a public purpose.19 The word 'public' imposes a requirement that a purpose be one for the benefit of members of the community generally.20
The word 'purpose' directs attention to the objects or aims for which a body has been established as evidenced by the relevant powers, functions or duties conferred on it by Parliament.21
b) Is the body established by government under an enactment for a public purpose, whether or not the public purpose is stated in the enactment?
Under section 9(1)(a)(ii) of the FOI Act, a body will be a 'public authority' if it is established by government under an enactment for a public purpose, whether or not the public purpose is stated in the enactment:
The ordinary and natural meaning of the word 'established' requires the body to be:22
- established by government;
- established under an enactment; and
- established for a public purpose.
A body will not be 'established by government' if it is established by private sector23 or by a concerned group of citizens.24
In Tedesco 25 the Information Commissioner was satisfied that a body incorporated under the provisions of the Associations Incorporation Act 1981 (Qld) is 'established under an enactment'.
The public purpose does not need to be stated in the enactment for the body to be 'established for a public purpose'.
c) Is the body created by the Governor in Council or a Minister?
Under section 9(1)(b) of the FOI Act, a body will be a 'public authority' if it is:
- created by the Governor in Council; or
- created by a Minister.26
d) Is the body declared by regulation to be a public authority and supported by government funds or assistance or is the government in a position to exercise control over the body?
Under sections 9(1)(c)(i)(A) and 9(1)(c)(ii) of the FOI Act, a body will be a 'public authority' if it is:
- declared by regulation to be a public authority for the purposes of the FOI Act; and
- supported directly or indirectly by government funds or other assistance or is a body that the government in is a position to exercise control over.27
In McPhillimy,28 the relevant body was supported by government funds or assistance and therefore satisfied section 9(1)(c)(i)(A) of the FOI Act, however the body was not declared by a regulation to be a public authority for the purposes of the FOI Act and therefore did not satisfy both requirements to be considered a 'public authority' for the purposes of the FOI Act.
e) Is the body declared by regulation to be a public authority and established by or under an enactment?
Under sections 9(1)(c)(i)(B) and 9(1)(c)(ii) of the FOI Act, a body will be a 'public authority' if it is:
- declared by regulation to be a public authority for the purposes of the FOI Act; and
- established by or under an enactment29
In Tedesco 30 the relevant entity was established under an enactment and therefore satisfied section 9(1)(c)(i)(B), however it was not declared by regulation to be a public authority for the purposes of the FOI Act and therefore did not satisfy both requirements to be considered a 'public authority' for the purposes of the FOI Act.
2. Is the entity a person?
The word 'person' in the context of section 9 of the FOI Act means a natural person and does not include a corporation.31
a) Does the person hold an office established by or under an enactment?
Under section 9(1)(d) of the FOI Act, a person will be a 'public authority' if the person holds an office established by or under an act.
However, a person is not a public authority merely because the person holds:32
- an office the duties of which are performed as duties of employment as an agency's officer; or
- an office of member of a body; or
- an office established by or under an enactment for the purposes of an agency.
In McPhillimy 33 the Information Commissioner considered the Gold Coast Motor Events Co (GCMEC) was not a 'public authority' because the promoter was a corporation rather than a natural person.
b) Does the person hold an appointment made by the Governor in Council or Minister (otherwise than by or under an enactment) that is declared by regulation to be an appointment, the holder of which is a public authority for the purpose of the FOI Act?
Under section 9(1)(e) of the FOI Act, a person will be a 'public authority' if:
- that person holds an appointment made by the Governor in Council or Minister (otherwise than by or under an enactment); and
- the appointment is declared by regulation to be an appointment, the holder of which is a public authority for the purpose of the FOI Act.
The requirements of section 9(1)(e)(i) and (ii) are cumulative and must both be satisfied for a person to be considered a 'public authority'.34
12English and Queensland Law Society Inc(1995) 2 QAR 714 at paragraph 54.
13Price and The Local Government Association of Queensland Inc(2000) 5 QAR 417.
14Price and The Local Government Association of Queensland Inc(2000) 5 QAR 417 at paragraph 19.
15Tedesco and Mt Gravatt District Community Support Inc (2005) 7 QAR 33 at paragraph 15.
16Price and The Local Government Association of Queensland Inc (2000) 5 QAR 417 at paragraph 10.
17McPhillimy and Gold Coast Motor Events Co (1996) 3 QAR 376 at paragraph 18.
18English and Queensland Law Society Inc (1995) 2 QAR 714 at paragraph 62.
19English and Queensland Law Society Inc (1995) 2 QAR 714 at paragraph 78.
20English and Queensland Law Society Inc (1995) 2 QAR 714 at paragraph 74.
21English and Queensland Law Society Inc (1995) 2 QAR 714 at paragraph 74.
22Barker and World Firefighters Games, Brisbane, 2002 (2001) 6 QAR 149 at paragraph 18.
23Orr and Bond University (1997) 4 QAR 130 at paragraph 18.
24Tedesco and Mt Gravatt District Community Support Inc (2005) 7 QAR 33 at paragraph 18.
25Tedesco and Mt Gravatt District Community Support Inc (2005) 7 QAR 33 at paragraph 17.
26Re McPhillimy and Gold Coast Motor Events Co (1996) 3 QAR 376 at paragraph 29.
27Section 9(1)(c)(i)(A) of the FOI Act.
28Re McPhillimy and Gold Coast Motor Events Co (1996) 3 QAR 376 at paragraph 30.
29Section 9(1)(c)(i)(B) of the FOI Act.
30Re Tedesco and Mt Gravatt District Community Support Inc (2005) 7 QAR 33.
31Re McPhillimy and Gold Coast Motor Events Co (1996) 3 QAR 376 at paragraph 31.
32Section 9(2) of the FOI Act.
33Re McPhillimy and Gold Coast Motor Events Co (1996) 3 QAR 376 at paragraph 31.
34Re McPhillimy and Gold Coast Motor Events Co (1996) 3 QAR 376 at paragraph 33.
Last updated: March 1, 2012
