English and Queensland Law Society Inc.
(1993 S0178, 4 August 1995)
This case involved a consideration of whether the Queensland Law Society is an 'agency' for the purposes of the FOI Act and, in particular, whether the Society falls within the definition of a 'public authority' in s.9(1)(a)(i) of the FOI Act; ie, 'a body (whether or not incorporated) which is established for a public purpose by an enactment'. Mr English sought access to copies of the Society's Statement of Affairs (required of all agencies under s.18), and to documents concerning himself and two companies of which he was a principal, but the Society contended that it was not an 'agency' subject to the FOI Act.
The Information Commissioner's decision addressed the preliminary question of the Office's jurisdiction to entertain the application for external review. The Information Commissioner stated that, consistently with the position taken in Christie and Queensland Industry Development Corporation (1993) 1 QAR 1, the jurisdictional question could be summarised as follows. If the Society is not an 'agency' within the meaning of the FOI Act, then the FOI Act would have no application to the Society, and the Information Commissioner would have no jurisdiction to investigate and review the Society's decision to refuse the access application. If, on the other hand, the Society is an 'agency' within the meaning of the FOI Act, then the access application would be valid, and would enliven Mr English's rights of internal and external review in respect of the matter to which he had been refused access. The Information Commissioner decided that the question of whether the Society is or is not an 'agency' for the purposes of the FOI Act was determinative of Mr English's rights, and that the determination of that issue was a matter falling within the Information Commissioner's jurisdiction under Part 5 of the FOI Act.
After considering evidence concerning the history of the Society prior to its incorporation in 1927, and relevant provisions of the statute by which the Society was incorporated (Queensland Law Society Act 1927), the Information Commissioner examined in some detail each of the constituent elements of the relevant definition of 'public authority' in s.9(1)(a)(i), with reference to cases decided under analogous provisions in the FOI legislation of Victoria (Richards v Law Institute of Victoria (Vic County Court, 13 August 1984, unreported) and Dixon v Law Institute of Victoria (1994) 6 VAR 227), and the ACT (Brennan v ACT Law Society (1984) 6 ALD 428).
The Information Commissioner decided that the Society is a body corporate which owes its existence (as a body corporate) to the Queensland Law Society Act 1927, and hence is a body 'established' by that enactment. On the question of whether the Society is established 'for a public purpose', the Information Commissioner held that the correct test to employ is whether at least one of the major purposes for the body's establishment is a public purpose. The Society submitted that the primary or dominant purposes for its incorporation were fundamentally private in nature, and emphasised the desirability of maintaining the profession's independence of government. While the Information Commissioner acknowledged that the Society may well have private purposes, the Commissioner held that the major purpose, indeed the 'primary or fundamental' purpose, for the Society's incorporation in 1927, was to bring into existence a statutory framework for the effective regulation of the solicitors' side of the legal profession in Queensland, for the ultimate benefit of the people of Queensland, or at least for that sector of the public having dealings with members of the solicitors' side of the profession, or with persons holding themselves out to be practitioners. The Information Commissioner found that this was a 'public purpose' within the meaning of s.9(1)(a) of the FOI Act, and that the Society is therefore a 'public authority', and so an 'agency', under the FOI Act.
The Society sought judicial review of the Information Commissioner's decision in the Supreme Court of Queensland. In dismissing that application, Derrington J held that 'the overwhelming weight of factors indicated that the Society does come within the description of a "public authority" within the meaning of the definition [in s.9(1)(a)(i) of the FOI Act] so that the provisions of the Act apply to it.' (see Queensland Law Society Incorporated v Albietz QLR 27/7/96 (No. 638/95, Derrington J, 1 March 1996)).