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Monday, October 10, 2011

Supreme Court confirms a hole in Queensland RTI act, ramifications unknown

Queensland Supreme Court Justice Applegarth in Davis v City North Infrastructure [2011] QSC 285 found the respondent, a company incorporated under the (Commonwealth) Corporations Act and wholly-owned by the state government, established to manage the Airport Link and Northern Busway Projects and associated works, was not a "public authority" and therefore not an "agency" subject to the Right to Information Act. City North Infrastructure Pty Ltd is a Special Purpose Vehicle in charge of one of the largest public infrastructure projects in the country. Its latest annual report (not easy to find) lists four of the six directors as senior public servants, one director who is the CEO of a similar body in Victoria and one external director, a lawyer.

Two points of particular interest.

The Court's interpretation of the definition of an entity "established by a Queensland act for a public purpose," an issue of some relevance not only in Queensland but elsewhere as similar provisions are contained in other FOI laws. 

And the government's response or reaction to facts noted by Justice Applegarth: that the Solomon Review recommended bodies established for a public purpose under an enactment of Queensland or the Commonwealth (or another State or Territory) should be covered by the law, that the government accepted this along with other recommendations in responding to the report, but the law as passed by Parliament didn't extend this far.

Shadow Attorney-General Jarrod Bleijie has a bill before parliament, introduced before the Supreme Court decision was handed down, to amend the RTI act to extend the definition of a public authority to any corporation supported directly or indirectly by government funds or other assistance or over which the state, a minister or a department is in a position to exercise control. I don't know if Opposition bills ever come on for debate in Queensland. Or how big a hole exists in the transparency and accountability framework in Queensland because Special Purpose Vehicles for one, are outside the scope of the RTI act. On these points it's over to the locals.

A previous post "Queensland Special Purpose Vehicles outside RTI act" reported the Civil and Administrative Tribunal decision upheld in this appeal. An additional argument why City North was covered by the act was pleaded unsuccessfully in the Supreme Court.

There was no dispute that City North Pty Ltd was established under the Commonwealth Corporations Act for a public purpose. The issue was whether the company had been “established by government under an Act” of the Queensland Parliament. This turned upon the meaning of these words in s 16(1)(a)(ii) of the RTI Act. The plaintiff argued that Queensland legislation conferred authority on public officials to take certain steps necessary to incorporate the entity and that this meant it was established under one or more Queensland acts.

On the issue argued before QCAT, Justice Applegarth agreed [40-45] with the conclusion of the Deputy President that obtaining an approval from the Treasurer under s 44 of the Queensland Financial Administration and Audit Act 1977 (“the FAA Act”) to apply to register the respondent under the Corporations Act  was insufficient to satisfy the requirement that the respondent was established under the FAA Act, within the meaning of s 16(1)(a)(ii) of the RTI Act.

The new point argued unsuccessfully was that the Coordinator-General, in the exercise of executive power granted to him under the State Development and Public Works Organisation Act 1971 (“the SDPWO Act”), caused the respondent to be incorporated, so that it had been “established by [the Coordinator-General] under [the SDPWO Act]”.

Justice Applegarth [31-39] rejected the submission that s 16(1)(a)(ii) should be construed so that it refers to entities which are established by exercise of administrative power given by an Act. His Honour accepted [32] that an entity can be “established” under more than one Act but this company had not been incorporated under a Queensland act:
[33] The possibility that an entity can be established under more than one Act does not, however, answer the question in this case as to whether the respondent was established by an Act of the Queensland Parliament. The applicant’s submissions raise the issue of whether it is sufficient in that regard that an exercise of power conferred by a Queensland Act causes the entity to be incorporated under the Corporations Act 2001 (Cth)....
[38] The applicant’s submissions tend to construe s 16(1)(a)(ii) as if it read: “An entity... established by government pursuant to an exercise of power conferred by an Act...”. This is not what the legislation provides and to construe the section as if it contained the italicised words rather than the word “under” would detract from the meaning conveyed by the words used by the Parliament. Those words posit a connection between the contents of the Act and the establishment of the entity. They suggest that the Act itself include provision about the establishment of an entity so that it may be said that the entity was established under the Act, in the sense of being established in accordance with the Act’s provisions.
[39] In my view, the fact that the acts which led to the incorporation of the respondent were authorised by an Act of the Queensland Parliament is not sufficient to conclude that the respondent was established “under an Act” within the meaning of s 16(1)(a)(ii) of the RTI Act... 
The  legislative gap
The Solomon Report and the government at the time was crystal clear on what was intended regarding the relevant section of proposed legislation:

From the Government Response
(Solomon)Recommendation 24: The definition of “public authority” in s. 9 of the Act should be extended to include bodies established for a public purpose under an enactment of Queensland, the Commonwealth or another State or Territory.
Government Response: Supported. The government supports this recommendation which is intended to ensure that Government bodies incorporated under the Corporations Act 2001 (Cth) (such as company GOCs) are included in the operation of the proposed Right to Information Bill.....
As Justice Applegarth noted [27] the government’s adoption of Recommendation 24 "did not find expression in the language of the statute" and no significance could be attached to what had been said at the time:
28..... despite the Queensland government’s response .. the definition of “public authority” in s 9 was not extended to give effect to this recommendation. If the Parliament had intended to alter the scope of s 9(1)(a)(ii) of the FOI Act, it would not have adopted essentially the same words in s 16(1)(a)(ii) of the RTI Act. Instead, it used language that was understood to exclude an entity such as the respondent from the Act’s operation.
What next?
Mr Bleije introduced the Right to Information (Government-related Entities) Amendment Bill  into Parliament on 8 September: 
The Right to information (Government-Related Entities) Amendment Bill 2011 will restore transparency and accountability by extending the meaning of a public authority to include any corporation supported directly or indirectly by government funds or other assistance or over which the state, a minister or a department is in a position to exercise control.
While he referred in his remarks to City North, the amendment goes further than Solomon's Recommendation 24 and more closely reflects Recommendation 20: "All bodies that are established or funded by the government or are carrying out functions on behalf of government, should be covered by FOI, unless it is in the public interest that they should not be covered." The government response to that recommendation was support in principle:
The government is committed to ensuring appropriate levels of accountability for government bodies established by the government and funded with public monies, including Government Business Enterprises. The government will need to consider the overall public interest in extending the legislation to non-government organisations, particularly where the proportion of government funding received is low or the costs of compliance outweigh the advantages of participation or significantly compromise service delivery (particularly in the case of smaller entities).

As enacted s 16 of the RTI act reflected this approach by providing that a public authority includes
(c) another entity declared by regulation to be a public authority for this Act, being an entity—

(i) supported directly or indirectly by government funds or other assistance or over which government is in a position to exercise control; or

(ii) established under an Act; or

(iii) given public functions under an Act;
However perhaps not what Solomon intended, the current situation is that the Bar Association of Queensland is the only entity declared by regulation to be a public authority. Right to Information Regulation 2009

Queensland Treasury's Guidelines for the Formation, Acquisition and Post Approval Monitoring of Companies set out the rules and procedures regarding establishment of government companies. As to how many Special Purpose Vehicles operate in Queensland
 the Register of Public Sector Companies presumably has the details but  isn't online. Any interested Queenslander could get a copy by asking, Treasury says.

In light of the Supreme Court decision, the Register would also illustrate the significance of the fact that this sector of government activity is beyond the reach of the RTI act.


  1. Trevor7:18 am

    Isn't the intent of SPVs to have them parked behind a barrier, away from public scrutiny?
    Maybe someone knows about SPVs currently in construction under the C'wealth.

  2. Ah Trevor, you sound like a voice of experience

  3. Trevor1:30 pm

    No, not me, just a raw amateur, Peter. Was a medical microbiologist once, now all-but retired.
    I see the A-G has re-opened Copyright law and will lob one over to ALRC. There are some aspects of copyright that are right at the heart of health information technology. If you know of someone who could be a sounding board, please let me know.