Key published decisions applying section 16(1)(a)(ii) RTI Act

Davis v City North Infrastructure Pty Ltd [2011] QSC 285 (PDF, 181KB)

The applicant made an originating application to the Queensland Supreme Court for a declaration on whether or not City North Infrastructure Pty Ltd (CNI) was subject to the RTI Act.

Specifically, the applicant sought a declaration that CNI was a 'public authority' and an 'agency' for the purposes of the RTI Act. The parties agreed that CNI could only be an 'agency' if it was a 'public authority' under section 16(1)(a)(ii) of the RTI Act. Therefore, Applegarth J held that whether the respondent was a 'public authority', depended on whether it was an entity 'established by government under an Act' for a public purpose. It was not disputed that CNI was established for a public purpose. It is also clear that the entity must be established under an Act of the Queensland Parliament. [5-6]

Applegarth J, in considering the meaning of 'agency' in section 14 of the RTI Act, held that CNI was established pursuant to the provisions of the Corporations Act 2001 (Cth). His Honour also held that CNI was not a 'Government Owned Corporation' within the meaning of the Government Owned Corporations Act 1993 (Qld), as it had not been declared by regulation to be a government owned corporation. [13-14]

The meaning of 'established'

Applegarth J considered the meaning of 'established' in section 16(1)(a)(ii) of the RTI Act and held that the definition of 'establish' in the Acts Interpretation Act 1954 (Qld) is not exhaustive. He considered that it is possible to 'establish' an entity without it being incorporated, for example under the Partnership Act 1891 (Qld). [19-21]

The meaning of 'under an Act'

Applegarth J accepted the applicant's written submissions to QCAT on the meaning of 'under', that: [22]

The ordinary meaning of the word 'under' in the context of the phrase 'under an Act' is 'in accordance with' or 'pursuant to' or 'with the authority of'. The Macquarie Dictionary, Second Edition gives as its eleventh meaning: 'subject to the rule, direction, guidance, etc of' (examples: 'under supervision' or 'study under a professor'). Its fourteenth meaning is 'with the favour or aid of' (example: 'under protection'). The fifteenth meaning is 'authorised, warranted, or attested by' (example: 'under one's hand or seal). The meaning most applicable is perhaps, the sixteenth meaning: 'in accordance with' (example: 'under the provisions of the law').

Applegarth J stated that this interpretation was generally consistent with the definition provided in section 36 of the Acts Interpretation Act 1954 (Qld). [23]

Statutory Interpretation

Applegarth J held that section 16(1)(a)(i) of the RTI Act refers to entities that are established by an Act - for example, when the statute constitutes a specific entity that is referred to in the legislation. However, his Honour held that section 16(1)(a)(ii) does not have the same sphere of operation. The words 'under an Act' in section 16(1)(a)(ii) connote that the entity is established in accordance with an Act of the Queensland Parliament. [24]

As to the relevant approach of statutory interpretation, Applegarth J adopted and accepted the observations of the Deputy President of QCAT:¹ [29]

[41] The object of the RTI is to give a right of access to information in the government's possession or under its control unless, on balance, it is contrary to the public interest to give access.

[42] This does not mean that distinctions which are apparently carefully drawn in the Act should be disregarded because their effect is to exclude an entity from the operation of the RTI.

[43] Parliament's intention is expressed not only in its objects provision. Its purpose is also evident from the structure of the Act and the specific language employed to give effect to the stated object.

[44] The stated object does not operate to provide access to all documents held by a body connected with the government unless they are expressly excluded from the operation of the RTI. The right of access is conferred in those circumstances specified in the Act. That requires careful consideration of the definitions which determine those agencies and documents which are subject to the Act.

Applegarth J agreed with the Deputy President's conclusion as to the relevance of the extrinsic material. In short, whilst the Queensland Government had accepted Recommendation 24 of the FOI Independent Review Panel², they had chosen not to amend the previous FOI Act definition of 'public authority' to give effect to the recommendation. Section 9 of the (repealed) FOI Act was understood to not extend to entities like CNI. Section 16(1)(a)(ii) replicates this section without any substantive changes and Applegarth J therefore held that the extrinsic material could not be used to broaden the scope of the section. [27]

Was CNI established under the State Development and Public Works Organisation Act 1971 (Qld)?

The applicant's first argument was that section 16(1)(a)(ii) of the RTI Act should be construed so that it refers to entities which are established by the exercise of administrative power given by an Act. [31] Applegarth J accepted that an entity may be 'established' under more than one Act but did not find this to be helpful in the circumstances as it did not answer the question of whether CNI was established by an Act of Queensland Parliament. [32]

Applegarth J was not persuaded that the exercise of a power conferred by a Queensland Act which results in the incorporation of an entity under the Corporations Act 2001 (Cth) was sufficient to make the entity one that is 'established…under an Act' of Queensland Parliament. The words in section 16(1)(a)(ii) of the RTI Act connote a connection between the establishment of the entity and the contents of the Act that the entity is established under. Therefore, the Act needs to have a provision about the establishment of entities in order for it to be found that the entity was established under that particular Act. [38] The State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act) which the applicant relied upon, did not specifically relate to the establishment of an entity like CNI. The SDPWO Act merely gave the Coordinator-General power to do acts that are necessary for the proper exercise and performance of the Coordinator-General's powers, functions and duties. The fact that the Coordinator-General used these powers to cause CNI to become incorporated under the Corporations Act does not mean that CNI was established under a Queensland Act. [35] The only Act that established CNI was the Corporations Act 2001 (Qld). [36]

Was CNI established under the Financial Administration and Audit Act 1977 (Qld)?

Applegarth J did not accept the submission that the Financial Administration and Audit Act 1977 (Qld) (FAA Act) was an Act under which CNI was 'established'. The FAA Act requires the Treasurer to approve an application from a government department for the formation of a company. Applegarth J agreed with the conclusion of the Deputy President of QCAT who held that the Treasurer's approval did not establish CNI, rather this happened upon the making of an application to ASIC and ASIC exercising its power to register the company. The FAA Act does not actually provide for the establishment of an entity, it merely imposes additional requirements to be fulfilled before incorporation. [40-45]

Ultimately, Applegarth J declined to make the declarations sought by the applicant, that CNI was a 'public authority' and an 'agency' for the purposes of the RTI Act. [46]

City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 060

Note: The Supreme Court has affirmed this decision.

City North Infrastructure Pty Ltd (CNI) appealed the decision of the Information Commissioner in Davis and City North Infrastructure Pty Ltd³, which found that CNI was an agency for the purposes of the RTI Act. CNI submitted that:

• the Information Commissioner erred in her interpretation of section 16(1)(a)(ii) of the RTI Act; and
• CNI was established under the Corporations Act 2001 (Cth) (Corporations Act), not the Financial Administration and Audit Act 1977 (Qld) (FAAA).

Specifically, CNI submitted that the Information Commissioner erred by:

• a) erroneously construing the word 'established' and the expression 'established under an Act'
• b) misplaced reliance on extrinsic material; and c) erroneously construing the scheme of the RTI Act and the role of schedule 2 in that scheme.

The meaning of 'established' and 'established under an Act'

Deputy President Kingham held that the Information Commissioner erred in her interpretation of the words 'established' and 'established under an Act'. She disagreed that the wording of the legislation had the effect of including the process for obtaining the Treasurer's approval under the FAAA to form a company under the Corporations Act. [38] The Deputy President was satisfied that an entity may be established by more than one Act⁴, however she held that did not occur in this case. [19]

In the external review decision, the Information Commissioner applied the definition of 'under' from the Acts Interpretation Act 1954 (Qld), which includes the words 'in accordance with'. [101] Accordingly, she decided that because section 44 of the FAAA requires a government agency to obtain approval prior to forming a company and because approval was obtained here, that CNI was established in accordance with the FAAA. [101]

The Deputy President did not accept this reasoning and found that CNI was brought into existence by an action undertaken by government under the Corporations Act, rather than the FAAA (ie the action to register the company). [33]

Reliance on extrinsic material

In the external review decision, the Information Commissioner considered Recommendation 24 of the Solomon Report⁵ and the Queensland Government's Response to that report and noted that material supported an interpretation that entities such as CNI were intended to fall within the scope of the RTI Act.

The Deputy President rejected this line of reasoning and held that the extrinsic material was meant to explain the expanded definition of 'agency' that appears in the RTI Act when compared to the less extensive definition contained within the FOI Act.

The scheme of the RTI Act and the role of schedule 2 in that scheme

The Information Commissioner concluded that if Parliament had intended CNI to be excluded from the operation of the RTI Act it would have been explicitly listed in schedule 2 of the RTI Act.

The Deputy President held that it is not simply a question of considering whether CNI is specifically referred to in schedule 2, as unless CNI falls within one of the categories specified in the inclusive definition, schedule 2 has no relevance or application.

Accordingly, the appeal was allowed and the external review decision of the Information Commissioner was set aside

Davis and City North Infrastructure Pty Ltd (Unreported, Queensland Information Commissioner, 31 March 2010)

NOTE: This decision was set aside by QCAT. QCAT's decision was affirmed by the Supreme Court.

The State government established City North Infrastructure Pty Ltd (CNI) as a Special Purpose Vehicle (SPV) to help deliver major infrastructure projects. SPV's are small Corporations Act 2001 (Cth) (Corporations Act) proprietary limited companies.

CNI was wholly owned by three State government departments. CNI's Board of Directors was comprised of four State government officers and one independent director.

The applicant sought access to a document described as a 'Borehole Log'. CNI considered the application was outside the scope of the RTI Act under section 32(1)(b)(ii) on the basis that the entity was a Corporations Act company and therefore not an entity subject to the RTI Act.

The applicant obtained access to the relevant information from Brisbane City Council but pursued external review in order to determine whether CNI was subject to the RTI Act. Therefore the Information Commissioner considered the issue of whether CNI was a 'public authority' for the purposes of the RTI Act.

Public authority

The Information Commissioner looked to the meaning of 'public authority' in section 16(1)(a)(ii) of the RTI Act and considered whether CNI was established: [76]

• a) by government
• b) under an Act; and
• c) for a public purpose.

a) Established by government

CNI was formed through the agency of the Coordinator General⁶. Shareholders at the time of creation (and at the time of decision) were:

• officers of the Queensland public service acting as trustees for their departments
• Treasury Corporation Pty Ltd acting as trustee for the Treasury department.

The Financial Administration and Audit Act 1977 (Qld) (FAAA) prescribes that a department or person can only form or participate in formation of a company, such as CNI, with the Treasurer's approval. CNI was granted such approval. [78]

Therefore, the Information Commissioner was satisfied that CNI was established by government, on the basis of approval by the Treasurer. [79]

b) Established 'under an Act'

The Information Commissioner distinguished an entity established 'by an Act' as an entity that is established by Parliament and provided for in unequivocal terms in legislation; whereas an entity 'established by government under an Act' is one established by the executive in accordance with: [85]

• a power given to the executive by an Act; or
• a process authorised by an Act.

i) Purposive Approach to interpreting section 16(1)(a)(ii)

The Information Commissioner applied a purposive approach to interpreting section 16(1)(a)(ii) of the RTI Act as per the High Court decision in Project Blue Sky Inc v Australian Broadcasting Authority⁷ and section 14A of the AIA.

CNI contended that the AIA definition of 'under' should not be used to interpret section 16(1)(a)(ii) of the RTI Act, as the RTI Act expressed a contrary intention. The Information Commissioner found: [94-95]

• an objective reading of the RTI Act as a whole and in a way that furthers the RTI Act's primary object, does not establish a contrary intention
• a section that determines whether entities are subject to the obligations set out in the RTI Act, such as section 16(1)(a)(ii), must be interpreted in a way that furthers the objects of the Act; and
• using the AIA definition of 'under' as an aid to interpret section 16(1)(a)(ii) of the RTI Act furthers the object of the RTI Act.

ii) Whether CNI was established under an Act

In order for an entity to be established 'under an Act', the executive government: [95]

• must be the cause of the entity being established, and
• may do so in accordance with a process authorised by an Act or further to a power given under an Act.

At the time of CNI's formation, the process for company formation was authorised by the FAAA. The Information Commissioner identified significant components of the FAAA and considered the Treasury Company Guidelines which provide further guidance on the company formation and approval process under the FAAA. [98-99]

The Information Commissioner was satisfied that: [101]

• the FAAA sets out a process for Queensland government agencies to obtain approval to form companies
• CNI was established in accordance with that process
• CNI is an entity that was established by an action of the executive government under the FAAA.

Therefore, the Information Commissioner found that CNI was an entity established under an Act for the purpose of section 16(1)(a)(ii) of the RTI Act. [102]

iii) Relevance of the Corporations Act

The Information Commissioner noted that the formation and establishment of a State government company involves more than registration and incorporation under the Corporations Act. Formation of a company is a process undertaken by the entity's shareholders and requires the approval of the Treasurer. [106]

Application of the inclusive definition of 'under' in the AIA demonstrates that an entity can be established under more than one Act. [106]

The Information Commissioner found:

• the participation of State government departments in the process of company formation and obtaining the Treasurer's approval under the FAAA, served to establish CNI in accordance with the FAAA
• the fact that CNI was registered and obtained its corporate character under the Corporations Act does not prevent CNI from also having been established under the FAAA.

c) Established for a public purpose

In assessing the purpose for which CNI was established, the Information Commissioner referred to:

• CNI's constitution
• the establishment of CNI as a Public Private Partnership (PPP) arrangement with the State government.

The Information Commissioner considered the meaning of 'public purpose' and referred to decisions under the repealed FOI Act, including McPhillimy⁸ and English and Queensland Law Society Incorporated.⁹

The Information Commissioner found:

• the planning, approval and procurement of significant public infrastructure projects is ordinarily a government responsibility which has been assigned to CNI via the PPP [127]
• the objective of the State government in establishing CNI as a PPP was to deliver improved services and achieve value for money and these objectives necessarily have a public context [128]
• the projects for which CNI is responsible are intended to be for public use and to benefit members of the community.

The Information Commissioner was therefore satisfied that CNI was established for a public purpose.

Accordingly, the Information Commissioner found that CNI:

• was established by government under an Act, for the public purpose of managing the procurement of significant public infrastructure projects in Queensland
• fell within the definition of 'public authority' in section 16(1)(a)(ii) of the RTI Act
• was an agency under section 14 of the RTI Act.

Therefore the Information Commissioner considered the application was within scope of the RTI Act.