The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to apply to access documents in the possession or control of Queensland government agencies. The RTI Act also places limitations on this right, specifically excluding some documents and entities from the Act.
What is an agency?
Under the RTI Act, people can apply to agencies for documents of agencies.2 is defined in section 14 of the RTI Act, and it does not include the entities listed in schedule 2 of the RTI Act. Document of an agency is defined in section 12 of the RTI Act and does not include the documents listed in schedule 1 of the RTI Act.3
Outside the scope of the Act
Under section 32 of the RTI Act, an entity can decide that a purported application is outside the scope of the Act if the purported application:
- is for a document which is a document to which the Act does not apply; or
- has been made to an entity to which the Act does not apply.
A purported application is also outside the scope of the Act if it is made to the Information Commissioner, Right to Information Commissioner, or Privacy Commissioner.
Dealing with an application outside the Act
Section 32 provides that an applicant must be given written notice that their purported application is outside the scope of the Act within ten business days of receipt of the purported application. This is a reviewable decision.
Documents excluded from the Act
Schedule 1 of the RTI Act lists documents to which the RTI Act does not apply. These documents are not subject to the RTI Act and there is no right to apply for them. An application for access to a schedule 1 document is a purported application which is outside the scope of the RTI Act.
For more information on the documents listed in schedule 1 of the RTI Act, refer to Documents to which the RTI Act and IP Act do not apply.
Entities excluded from the Act
Schedule 2, part 1 of the RTI Act list entities which are entirely excluded from the RTI Act4 An access application made to an entity listed in schedule 2, part 1 of the RTI Act is a purported application outside the scope of the RTI Act.
Schedule 2, part 2 of the RTI Act lists entities which are only excluded in relation to the listed function. An access application made to an agency listed in schedule 2, part 2 of schedule 1 requires an assessment of the application to determine which functions it relates to. If it relates to a function mentioned in schedule 2, part 2, the application is a purported application which is outside the scope of the RTI Act.
Schedule 2, part 2 entities
Government Owned Corporations (GOCs)
Several GOCs are included in Schedule 2, part 2. For these GOCs, the RTI Act only applies in relation to their community service obligations. Section 112 of the Government Owned Corporations Act 1993 states that community service obligations are obligations that, are not in the commercial interests of the GOC to perform, arise because of a direction, notification or duty to which this section applies, and do not arise because of the application of the following key principles of corporatisation (and their elements):
- Principle 3 – Strict accountability for performance
- Principle 4 – Competitive neutrality.
A GOC listed under schedule 2, part 2 of the RTI Act may not have any community service obligations. Any community service obligations a GOC is to perform must be included in the GOC’s statement of corporate intent5 which is prepared each financial year.6
Judicial entities and functions
Judicial entities and quasi-judicial entities are listed in schedule 2, part 2 of the RTI Act and are excluded from the RTI Act for their judicial and quasi-judicial functions respectively.
- the settlement of disputes about existing rights and obligations, rather than the determination of future rights and obligations
- settling disputes between identified, rather than hypothetical or abstract, parties; and
- making decisions which are binding upon the parties.
An important factor is whether the function is performed in a judicial manner, ie:
- whether the decision maker applies established legal standards rather than a policy discretion;8 and
- whether the decision maker is independent and not subject to direction or control9.
Other factors which may suggest the exercise of a judicial function are that the:
- body hearing the dispute is bound by the rules of evidence
- body normally hears disputes in public, unless there is a good reason to do otherwise; and
- parties have a right to legal representation.
- 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; and
- be required to give reasons for its decision.
However, it may not be bound by the rules of evidence, consist of individuals appointed for a limited term, and/or make recommendations rather than binding decisions.
- 1 And chapter 3 of the Information Privacy Act 2009.
- 2 And to Ministers for documents of Ministers. References in this guideline to an agency include a Minister unless otherwise specified.
- 3 Document of a Minister is defined in section 13; it also excludes documents listed in schedule 1.
- 4 Note that, while this does not relate to a GOC's access or amendment obligations under the IP Act, under the IP Act, GOCs are excluded from the application of the privacy principles.
- 5 Section 113(1) of the GOC Act.
- 6 Section 102 of the GOC Act.
- 7 Huddart Parker and Co Ltd v Moorehead (1908) 8 CLR 330, Griffith CJ at page 557.
- 8 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 190-1.
- 9 Owen v Menzies & Ors  QCA 170 at paragraphs 14 -16.
- 10 Henderson and Legal Practice Committee (Unreported, Queensland Information Commissioner, 30 November 2011), citing Re Farnaby and Military Rehabilitation and Compensation Commission  AATA 1792.
Current as at: November 25, 2021