Under the Right to Information Act 20091 (Qld) (RTI Act) people can apply to access documents of an agency2, subject to limitations set out in the Act. This Guideline will help decision makers decide if an entity is an agency under the RTI Act.
What is an ‘agency’?
- (a) a department; or
- (b) a local government; or
- (c) a public authority; or
- (d) a government owned corporation; or
- (e) a subsidiary of a government owned corporation
What is a department?
Queensland government departments are declared under the Public Service Act 2008 (Qld)4. A list of Queensland government departments can be found here.
What is a local government?
A local government is:
- the Brisbane City Council established under the City of Brisbane Act 2010 (Qld)
- a local government or joint local government established under the Local Government Act 2009 (Qld), or
- the Wide Bay Water Corporation.5
What is a public authority?
A public authority includes an entity which is:
- established for a public purpose by an Act;7 or
- established by government under an Act for a public purpose (whether or not the public purpose is stated in the Act)8.
Was the entity established for a public purpose by an Act?
For an entity to be a public authority under section 16(1)(i), it must have been established by an Act9 for a public purpose, not just operate under the Act.
The wording ‘by an Act’ means that the Act in question needs to have directly provided for the entity's establishment.10 ‘Public purpose'11 means a purpose that is for the benefit of members of the community12.
When determining if an entity is established for a public purpose, it is relevant to consider the primary functions of the entity.
The ‘public purpose’ does not need to be specified in the establishing Act.13 If one of the primary or fundamental reasons for which the entity was established benefits members of the community, it will likely satisfy this requirement.14
Was the entity established by government under an Act for a public purpose?
Section 16(1)(a)(ii) of the RTI Act15 states that an entity established by government under an Act for a public purpose is an agency. It will often be necessary to consider the history of the entity to determine whether it was established by government or established by others (for example, a group of concerned citizens). ‘Government’ includes an agency, so an entity established by a department is established by government.
Section 16(1)(a)(ii) provides that the entity must be established under an Act. This contrasts with section 16(1)(a)(i) which requires the entity to have been established by an Act.
By providing for establishment under an Act, the RTI Act extends the scope of its application to an entity established under a more general piece of legislation, such as the Associations Incorporation Act 1981 (Qld).
The Acts Interpretation Act 1954 (Qld) defines ‘under’ for an Act or a provision of an Act to include:
- by; and
- for the purposes of; and
- in accordance with; and
- within the meaning of.
An entity can be established under more than one Act.16
Established for a public purpose
Refer to the discussion above. In addition, section 16(1)(a)(ii) specifically states that the public purpose does not have to be stated in the Act.
Entities created by the Governor in Council or Minister or declared by regulation to be a public authority17
Sections 16(1)(b) and 16(1)(c) contain a list of situations where an entity may be declared by regulation to be a public authority or be a public authority because it has been created by the Governor in Council or a Minister.
At this time, the Bar Association of Queensland is the only relevant entity to have been declared a public authority for section 16(1)(c).
Section 16(1)(d) – a person holding an office established under an Act
Section 16(1)(d) applies to positions such as the Public Service Commissioner. However, it is subject to section 16(3) which provides that a person is not a public authority under the RTI Act merely because they:
- are an officer of an agency
- are a member of a body; or
- hold a position established under an Act for the purposes of an agency.
Section 16(1)(e) – appointment by Governor in Council or Minister and declared by regulation to be a public authority
No entity has been declared a public authority under this section.
The RTI Act also applies to prescribed entities, which are bodies given public functions and declared by regulation to be public authorities.
There are currently no prescribed entities under the RTI Act.
Boards, councils and subcommittees etc
Under section 14(3) of the RTI Act, boards, councils, subcommittees and other bodies established by government to help perform functions connected with agencies are taken to be part of the agency they assist. Section 14(3)(b) specifically mentions that a school council is taken to be part of the relevant agency.
Government Owned Corporations
Under 14(1)(d) and (e) a Government Owned Corporation (GOC) or its subsidiary is an agency. The current Government Owned Corporations are listed in schedule 2 of the Government Owned Corporations Regulation 2004.
When dealing with GOCs it is important to check if the RTI Act has a limited application or full application.
Limitation of application to some GOCs
Schedule 2, part 2 of the RTI Act lists entities for which the RTI Act is partly excluded for specific functions. Several GOCs are included in this list. For these GOCs, the RTI Act only applies in relation to their community service obligations.
Community service obligations
Section 112 of the Government Owned Corporations Act 1993 states that community service obligations are obligations that:
- (a) are not in the commercial interests of the GOC to perform; and
- (b) arise because of a direction, notification or duty to which this section applies; and
- (c) do not arise because of the application of the following key principles of corporatisation (and their elements): Principle 3 – Strict accountability for performance; and 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 intent18 which is prepared each financial year.19
Entities to which the RTI Act does not apply
Schedule 2, parts 1 and 2 of the RTI Act list entities excluded from the RTI Act, either completely or in relation to specific functions.20
1 And section 40 of the Information Privacy Act 2009 (Qld) (IP Act); under the IP Act, individuals can also apply to amend their information.
2 And documents of a Minister.
3 Section 17 of the IP Act clarifies that for the purposes of chapter 3 of the IP Act, ‘agency’ means anything that is an agency under the RTI Act.
4 Section 14 of the Public Service Act 2008 (Qld).
5 Section 15 of the RTI Act.
6 Schedule 1, column 1 and schedule 2.
7 Section 16(1)(a)(i) of the RTI Act.
8 Section 16(1)(a)(ii) of the RTI Act.
9 ‘Act’ means an Act of the Queensland Parliament statutory instrument and a British or New South Wales Act in force in Queensland as per section 6 and 7 of the Acts Interpretation Act 1954 (Qld).
11 For more information about the ‘public purpose’ see question 3 in the ‘Application of section 16(1)(a)(ii) of the RTI Act in the OIC Annotated legislation.
12 McPhillimy and Gold Coast Motor Events Co. (1996) 3 QAR 376 (McPhillimy) at paragraph 22.
13 Price and Local Government Association of Queensland Inc. (2000) 5 QAR 417 at paragraph 19.
14 McPhillimy at paragraph 22. This view was endorsed by the Information Commissioner in Davis and City North Infrastructure (Unreported, Queensland Information Commissioner, 31 March 2010).
15 For more information about the ‘public purpose’ see ‘Application of section 16(1)(a)(ii) of the RTI Act in the OIC Annotated legislation.
16 Davis v City North Infrastructure Pty Ltd  QSC 285, .
17 Section 16(1)(b) to section 16(1)(c)
18 Section 113(1) of the GOC Act.
19 Section 102 of the GOC Act.
20 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.
Current as at: February 1, 2019