Davis and City North Infrastructure Pty Ltd(220004, 31 March 2010)
Note: This decision was overturned on appeal to QCAT. See City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 060 Judge Fleur Kingham".
Section 16(1)(a)(ii) of the RTI Act – meaning of public authority
The applicant made an access application under the Right to Information Act 2009 (Qld) (RTI Act) to City North Infrastructure Pty Ltd (CNI) seeking access to a document described as Borehole Log APL06 (Document in Issue). Upon receipt of the access application, CNI informed the applicant that as it is a company incorporated under the Corporations Act 2001 (Cth) (Corporations Act), it is not subject to the RTI Act.
The applicant applied to the Office of the Information Commissioner (OIC) for external review in relation to CNI's response to his access application.
During the course of the review, the applicant obtained access to the Document in Issue through the Brisbane City Council. Despite this, the applicant confirmed that he wanted the Information Commissioner to make a decision on whether or not CNI is an entity that is subject to the RTI Act. The issue considered in this review was whether CNI was a public authority under section 16(1)(a)(ii) of the RTI Act.
CNI submitted that it is not a public authority within the meaning of section 16(1)(a)(ii) of the RTI Act because it was established under the Corporations Act, a Commonwealth Act. CNI specifically relied on section 36 of the Acts Interpretation Act 1954 (Qld) (AI Act), which defines the word 'Act' to mean an Act of Queensland Parliament, and a number of rules of statutory construction to support its argument.
The applicant submitted that from an accountability and transparency perspective, CNI should be subject to the RTI Act because it is a wholly owned State government company with six shares all held by Queensland government bodies.
In considering the requirements of section 16(1)(a)(ii) of the RTI Act, the submissions made by CNI, the applicant, relevant legislation and extrinsic material, the Information Commissioner found:
(i) On the issue of whether CNI was established by government:
o CNI was formed through the agency of the Coordinator-General and its individual shareholders at the time of formation (and to date) are officers of the Queensland public service representing and acting as trustees for their departments
o CNI could not have been formed without obtaining the approval of the Treasurer under the Financial Administration and Audit Act 1977 (Qld) (FAAA).
(ii) As to interpretation of the RTI Act:
o a purposive approach which furthers the RTI Act's primary object set out in section 3 of the RTI Act must be taken
o using the AI Act definition of 'under' as an aid to interpret section 16(1)(a)(ii) of the RTI Act furthers the object of the RTI Act.
(iii) With respect to the Act under which CNI was established:
o at the relevant time, the FAAA set out a process for Queensland government agencies to obtain approval to form companies and CNI was established in accordance with that process
o CNI is an entity that was established by an action of the executive government under the FAAA
o 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
o 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.
(iv) On the issue of whether CNI was established for a public purpose:
o CNI's Constitution demonstrates that the purpose for which it was established was to manage the procurement of significant public infrastructure projects, namely, Airport Link and the Northern Busway
o the planning, approval and procurement of significant public infrastructure projects is ordinarily a government responsibility which has been assigned to CNI by virtue of a Public Private Partnership (PPP)
o by establishing CNI as a PPP, the State government aimed to deliver improved services and achieve value for money
o the projects for which CNI is responsible are intended to be for public use and to benefit members of the community.
The Information Commissioner found that previous decisions made under the repealed Freedom of Information Act 1992 (Qld) (FOI Act) that had interpreted a similar provision, section 9(1)(a)(ii) of the repealed FOI Act:
o could, on their facts, be distinguished from the circumstances of this case
o did not establish a settled meaning of the phrase 'established by government under an enactment' which should be applied in interpreting section 16(1)(a)(ii) of the RTI Act.
On the basis of the above, the Information Commissioner found that CNI:
o was established by government under an Act, namely the FAAA, for the public purpose of managing the procurement of significant public infrastructure projects in Queensland
o falls within the definition of 'public authority' in section 16(1)(a)(ii) of the RTI Act
o is an agency under section 14 of the RTI Act to which access applications can be made under section 24 of the RTI Act.
The Information Commissioner set aside CNI's decision that it is not an entity to which the RTI Act applies and substituted it with the decision that CNI is an 'agency' to which access applications can be made under the RTI Act on the basis that CNI falls within the definition of 'public authority' in section 16(1)(a)(ii) of the RTI Act.