Application of section 16(1)(a)(ii) RTI Act

Relevant considerations

1. Was the entity established by government?

To determine whether an entity was established by government, it is necessary to consider the circumstances of the entity's formation, including its original shareholders and any relevant legislative requirements.1

The definition of 'establish' in the Acts Interpretation Act 1954 (Qld) is not exhaustive. It is possible to 'establish' an entity without it being incorporated, for example under the Partnership Act 1891 (Qld).2

2. Was the entity established 'under an Act'?

'Under an Act' in this section relates an Act of the Queensland Parliament.3 As the term 'under' is not defined in the RTI Act, its meaning is determined by looking at the ordinary meaning, which is generally consistent with the expanded definition in schedule 1 of the Acts Interpretation Act 1954 (Qld).4 'In accordance with' has been found to be the most relevant meaning of 'under'.5

Where an Act confers general powers on a government body and that government body uses those powers to cause a company to become incorporated, it does not mean that the entity was established under that Act. The words in section 16(1)(a)(ii) of the RTI Act suggest that the Act needs to have a provision about the establishment of entities in order for it to be said that the entity was established under that particular act.6 Similarly, because an Act imposes additional requirements on the creation or incorporation of an entity, does not mean that merely obtaining approval under those requirements will cause the entity to have been established under that Act.7

3. Was the entity established for a public purpose?

The meaning of 'public purpose' is considered to be 'relatively straightforward'8 and to mean '…a purpose that is for the benefit of members of the community'.9

An entity is likely established for a public purpose if:10

  • it undertakes works that are ordinarily a government responsibility 
  • it involves a significant use of public monies; and 
  • the projects undertaken are intended to be for public use and to benefit members of the community.
  • 1 See, for example Davis and City North Infrastructure Pty Ltd (Unreported, Queensland Information Commissioner, 31 March 2010) at paragraphs 77-82. [up]
  • 2 Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at paragraphs 19-21. [up]
  • 3 Davis v City North Infrastructure Pty Ltd [2011] QSC 285; section 6 of the Acts Interpretation Act 1954 (Qld). [up]
  • 4 Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at paragraphs 22-24. [up]
  • 5 Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at paragraphs 22-24. [up]
  • 6 Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at paragraph 38. [up]
  • 7 Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at paragraphs 40 – 45. [up]
  • 8 Considering section 9(1)(a) of the repealed FOI Act in English v Queensland Law Society Incorporated (1995) 2 QAR 714 at paragraph 74. [up]
  • 9 McPhillimy and Gold Coast Motor Events Co (1996) QAR 376 at paragraph 22. [up]
  • 10 Davis and City North Infrastructure Pty Ltd (Unreported, Queensland Information Commissioner, 31 March 2010) at paragraphs 127-128. [up]

Last updated: March 16, 2012