Application of section 13 RTI Act

Relevant considerations

1. Is the document 'in the possession or under the control' of a Minister?

The term 'possession' in this section will be satisfied if the document is in the physical possession of a Minister.1 Formal legal possession is not required; nor is it necessary to consider the means by which the document has come into the Minister's possession.2

A document 'in the possession or under the control' of a member of staff of, or a consultant to the Minister in their capacity as a staff member or consultant, is considered to be 'in the possession or under the control' of the Minister.

2. Is the document excluded?

A document in the possession or under the control of a Minister will not be a document of a Minister if it is a document of an agency or a document to which the RTI Act does not apply.3

3. Does the document relate to the affairs of an agency?

Documents of a party political nature are not documents of a Minister.4 A document relating to projects currently being undertaken by the Government rather than referring directly to the affairs of an agency, is not considered a document of the Minister.5

  • Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 19 December 2011) at paragraph 14 and Holt and Reeves and Education Queensland and Anor (1998) 4 QAR 310 at paragraph 22 in regards to when a document will be in the possession of an agency under a substantively similar provision. [up]
  • 2 See Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation (Unreported, Queensland Information Commissioner, 19 December 2011) at paragraph 19. [up]
  • 3 Section 17 of the RTI Act. [up]
  • 4 Re Michael Nassib Said and John Dawkins, MP [1993] AATA 9 at paragraph 26. [up]
  • 5 (Unpublished OIC Preliminary View). [up]

Last updated: March 16, 2012