Walsh (as agent for Queensland Newspapers Pty Ltd) and Ergon Energy Corporation Ltd
(2003 F0423, 29 June 2004)
The matter in issue in this review consisted of a report commissioned from external consultants by the respondent, in relation to an investigation into allegations of improper behaviour by senior officers employed by the respondent.
The respondent refused access to the report on the basis that it was received or brought into existence by the respondent in carrying out its commercial activities, and was thus excluded from the application of the FOI Act by s.11A of the FOI Act and s.256 of the Electricity Act 1994 Qld.
The applicant argued that the report had only been received or brought into existence as a consequence of a direction or demand from the Treasurer (one of two shareholding Ministers of the respondent). The applicant therefore submitted that the matter in issue was received or brought into existence by the respondent for the purposes of accounting to its shareholding Ministers, pursuant to the reporting and accountability requirements imposed on Government Owned Corporations such as the respondent by the Government Owned Corporations Act 1993 Qld.
I found on the evidence that the respondent had made an independent decision to commission the external consultants to investigate and report on the various allegations relating to its officers. I was therefore satisfied that the report in issue was not commissioned pursuant to a requirement of the Treasurer.
I considered that the character of the activity carried out by the respondent in commissioning and receiving the report was commercial in nature. While acknowledging that the matter in issue dealt with allegations of improper conduct by employees (and was thus connected to employee management), I noted that those allegations related to senior personnel and their commercial dealings with external contractors, suppliers and service providers. The respondent was seeking to ensure that it was meeting appropriate standards of corporate governance. I was satisfied that the nature of the engagement of the external consultants related to the general business objective of ensuring satisfactory commercial performance and was an inherently commercial activity.
I therefore found that, in commissioning and receiving the report in issue, the respondent was engaged in an activity conducted on a commercial basis. I decided that the report was excluded from the application of the FOI Act by s.11A of the FOI Act and s.256 of the Electricity Act.
