Application of section 17 RTI Act

Relevant considerations

1. Is the entity an entity to which the RTI Act does not apply?

As set out in schedule 2, part 1 of the RTI Act.

2. Is the entity an entity to which the RTI Act does not apply in relation to a particular function?

As set out in schedule 2, part 2 of the RTI Act.

a)  Judicial entities and functions

Judicial and non-judicial functions are discussed at length in Owen v Menzies & Ors.1

Judicial functions are typically characterised by the following:2 

  • the settlement of a dispute regarding existing rights and obligations, rather than the determination of future rights and obligations;
  • the dispute is between identified parties, and is not merely hypothetical or abstract; and
  • the decision given is binding upon the parties.

These factors are not conclusive; each case must be considered on its facts.3

Another important consideration is whether a function is performed in a judicial manner.  That is:

  • whether the decision maker applies established legal standards, rather than a policy discretion;4  and
  • whether the decision maker is independent and not subject to direction or control.5

Other factors which may suggest the exercise of a judicial function are:

  • the body hearing the dispute is bound by the rules of evidence
  • the body normally hears disputes in public, unless there is a good reason to do otherwise; and
  • parties have a right to legal representation.

b)  Quasi-judicial entities and functions

A quasi-judicial entity possesses some, but not all, of the characteristics of a judicial entity.   

In particular a body exercising a quasi-judicial function will often:6

  • have two parties to proceedings
  • conduct hearings in public
  • allow parties to have legal representation
  • be required to act consistently with the requirements of justice
  • be required to give reasons for its decision

However, such an entity may: 

  • not be bound by the rules of evidence;
  • consist of individuals appointed for a limited term; or
  • make recommendations rather than binding decisions.

c)  Community service obligations

A number of Government Owned Corporations (GOCs) are exempt from the RTI Act, except in relation to their community service obligations. 

Section 113 of the Government Owned Corporations Act 1993 (Qld) requires GOCs to list any community service obligations in their statement of corporate intent.  At the time of writing, only Ergon Energy reports having community service obligations.  The result is that CS Energy, Queensland Investment Corporation (QIC) and Stanwell Corporation are entities which are, at least until they declare a community service obligation, exempt from the RTI Act.  In anticipation of the publication of more recent annual reports and statements of corporate intent, the relevant information for each named GOC can be found here:

QIC: http://www.qic.com/our-priorities/
Stanwell: http://www.stanwell.com/annual-reports.aspx
CS Energy: http://www.csenergy.com.au/content-(40)-Disclosure.htm
Ergon Energy: http://www.ergon.com.au/about-us/company-information/statement-of-corporate-intent

  • 1 [2012] QCA 170.
  • 2 Huddart Parker and Co Ltd v Moorehead (1908) 8 CLR 330, Griffith CJ at page 557.
  • 3 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at paragraphs 188-9.
  • 4 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 190-1.
  • 5 Owen v Menzies & Ors [2012] QCA 170 at paragraphs 14 -16.
  • 6 Henderson and Legal Practice Committee (Unreported, Queensland Information Commissioner, 30 November 2011), citing Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792.

Last updated: August 24, 2012