City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 60

CITATION: City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 60 PARTIES: City North Infrastructure Pty Ltd (Applicant) v Information Commissioner (Respondent) APPLICATION NUMBER: APL065-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 14 October 2010 DELIVERED AT: Brisbane ORDERS MADE: [1] The appeal is allowed. [2] The decision of the Information Commissioner (application no 220004) made on 31 March 2010 is set aside. CATCHWORDS : APPEAL – ERROR OF LAW – STATUTORY INTERPRETATION – Approach to interpretation – Interpretation of “established” and “established under an Act” – consideration of extrinsic materials – construction of the scheme of the Act and the role played by Schedule 2 – whether there was an error of law in the interpretation of s16(1)(a)(ii) of the Right to Information Act 2009 RIGHT TO INFORMATION – AGENCY – PUBLIC AUTHORITY – whether a company incorporated under the Corporations Act 2001 (Cth) is a public authority – whether approval under the Financial Administration and Audit Act 1977 to form of a company means the company has been established under that Act Aboriginal Councils and Associations Act 1976 -- 1 of 11 -- 2 (Cth) Acts Interpretation Act 1954 ss 6, 7, 36 Corporations Act 2001 (Cth) s 119 Financial Accountability Act 2009 Financial Administration and Audit Act 1977 s44 Freedom of Information Act 1982 (Cth) ss4 Freedom of Information Act 1992 (Qld) ss7, 8, 21 Government Owned Corporations Act 1993 s5 Right to Information Act 2009, ss3, 14, 14A, 16, 17, 23, 119, Chapter 3, Part 9 Barker v World Firefighters Games, Brisbane 2002 Decision No 80/2001 made on 27 September 2001 Joint Coal Board v Cameron (1989) 24 FCR 204 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 Sobczuk v Carnarvon Medical Service Aboriginal Corporation [1995] AATA 864 Walker v Wilson (1991) 99 ALR 1 at p11 APPEARANCES and REPRESENTATION (if any): Decision on the papers. REASONS FOR DECISION [1] This appeal considers whether the Right to Information Act 2009 (RTI) applies to City North Infrastructure Pty Ltd (CNI), a corporation established by the Queensland government, through the agency of the Coordinator General, to manage a number of infrastructure projects, including the Airport Link project1. [2] The primary object of the RTI is to give a right of access to information in the government’s possession, or under its control, unless, on balance, it is contrary to the public interest to give access2. 1 The Airport link project is, primarily an underground toll road to link the Inner City Bypass and the North-South Bypass Tunnel and road networks. 2 Right to Information Act 2009 s 3(1) -- 2 of 11 -- 3 [3] Mr Davies is a resident of Wooloowin and the secretary of the Kalinga Wooloowin Residents Association Inc3. CNI declined to provide him with access, under the RTI, to a document (Borehole Log APL06). [4] At Mr Davies request, the Information Commissioner conducted an external review of CNI’s decision not to disclose the document4. She decided the RTI did apply to CNI. This is an appeal brought by CNI against the Information Commissioner’s decision5. An appeal may only be brought on a question of law6. [5] The parties7 agree CNI is only subject to the RTI if it is a public authority as defined in the RTI. They also agree that the only aspect of that definition which might apply to CNI is set out in section 16(1)(a)(ii). CNI argues the Information Commissioner erred in her interpretation of that provision. [6] Section 16(1)(a)(ii) provides: “16 Meaning of public authority (1) In this Act, public authority means any of the following entities - … (a) an entity - … (ii) established by government under an Act for a public purpose, whether or not the public purpose is stated in the Act. [7] It is common ground CNI was established by government for a public purpose. The parties also agree the Act under which the entity is established must be an Act of the Queensland Parliament8. [8] While CNI is a company registered under the Corporations Act 2001, a Commonwealth Act, the Information Commissioner decided it was established under the Financial Administration and Audit Act 19779 (FAAA), a Queensland Act. The Information Commissioner acknowledged CNI took on its corporate character upon registration under the Corporations Act, but determined the Treasurer’s approval to the formation of CNI, granted under section 44 of the FAAA, meant that it was established under that Act10. [9] CNI argues that finding is incorrect. It submits the Information Commissioner erred by: 3 The Kalinga Wooloowin Residents Association Inc seeks to represent the interests of residents affected by infrastructure projects. 4 Right to Information Act 2009 Chapter 3, Part 9 5 Right to Information Act 2009 s 119(1) 6 Right to Information Act 2009 s 119(2) 7 In accord with the usual practice in appeals of this nature, the Information Commissioner, the second respondent to the appeal, has played no active part in the appeal. A reference in these reasons to the parties refers to CNI and Mr Davies, the first respondent, and not to the Information Commissioner, unless stated. 8 Acts Interpretation Act 1954 s 6(1) 9 Since repealed by the Financial Accountability Act 2009 10 Reasons for Decision 31 March 2010 [106] – [107] -- 3 of 11 -- 4 (a) erroneously construing the word “established” and the expression “established under an Act”; (b) misplaced reliance on extrinsic material; (c) erroneously construing the scheme of the RTI Act and the role of Schedule 2 in that scheme. The meaning of “established” and “established under an Act” [10] CNI argues the Information Commissioner misconstrued the word “established” and the expression “established under an Act” by including within their meaning approval for establishing an entity and a process for obtaining such approval. [11] The ordinary meaning of the word establish, connotes the act of bringing something into existence: “1. to set up on a firm or permanent basis; institute; found; to establish a government, a business, a university etc.”11 This is consistent with the legal definition of the word: “2. To make or form; to bring about or into existence <Congress has the power to establish Article III courts>” 12. In Queensland, the Acts Interpretation Act 1954 extends the definition to include: “constitute and continue in existence”13 The ordinary meaning of constitute is: “3. to set up or found (an institution, etc) 4. to give legal form to (an assembly, court, etc.)”14 [12] A company comes into existence as a body corporate at the beginning of the day on which it is registered under the Corporations Act15. The act which CNI argues established the entity, is ASIC’s act in registering CNI as a company under the Corporations Act, a Commonwealth not a Queensland Act. CNI submits it was established under the Corporations Act and under no other Act. [13] If that submission is intended to mean that a body corporate cannot be established under more than one statute, I do not accept the proposition. [14] The Joint Coal Board is an example of a body corporate established by a Commonwealth statute (the Coal Industry Act 1946 (Cth)) and a state statute (the Coal Industry Act 1946 (NSW)). The Full Federal Court 11 The Macquarie Dictionary 3 rd ed 12 Black’s Law Dictionary 7th ed 13 Acts Interpretation Act 1954 s 36 14 The Macquarie Dictionary 3 rd ed 15 Corporations Act 2001 (Cth) s119 -- 4 of 11 -- 5 rejected an argument that the Freedom of Information Act 1982 (Cth) (Cth FOI Act) did not apply to that Board because it had been established by or in accordance with both statutes. [15] It found no inference could be drawn from the relevant provisions of the Cth FOI Act that a joint corporate enterprise (deriving its existence from both federal and state legislative sources) was intended to fall outside the scope of that Act.16 [16] To fall within the scope of the Cth FOI Act, a body had to be a “prescribed authority”. That term was defined as, inter alia, “a body corporate…established for a public purpose, by or in accordance with the provisions of, an enactment.”17 [17] Both statutes, separately and independently, provided directly for the constitution of the Joint Coal Board as a body corporate. The effect was that each established the Board to the extent of their legislative power.18 [18] The Court considered its decision was consistent with the reasoning of the High Court in two cases which considered the constitution of the Coal Industry Tribunal under both commonwealth and state statutes19. The High Court accepted the Tribunal, and local coal authorities, “derive their existence from the Commonwealth Act, although not exclusively so”20. [19] Nevertheless, accepting that it is possible that CNI could be established under more than one Act does not mean that, in this case, it was. The question remains what is required for a company to have been established under an Act within the meaning of s16(1)(a)(ii). [20] CNI argues the fact the Treasurer gave his approval under the FAAA to CNI being formed is insufficient basis for a finding that CNI was established under that Act. [21] However, the Information Commissioner considered “the formation and establishment of the company involves more than registration (and incorporation).”21 [22] The Information Commissioner applied the definition of “under” provided for by the Acts Interpretation Act 195422, which includes in accordance with. Because s44 of the FAAA requires a government agency to obtain 16 Joint Coal Board v Cameron (1989) 24 FCR 204 17 Freedom of Information Act 1982 (Cth) s4(1) 18 Joint Coal Board v Cameron (1989) 24 FCR 204 at 206 19 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 20 Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 @ 128-129 21 Reasons for Decision 31 March 2010 [106] 22 In an Act, under, for an Act or a provision of an Act, includes – (a) by; and (b) for the purposes of; and (c) in accordance with; and (d) within the meaning of.22 -- 5 of 11 -- 6 prior approval to forming a company and because that approval was, in this case, obtained, the Information Commissioner considered it had been established in accordance with the FAAA23. [23] The phrase “in accordance with” has been construed to mean “in conformity with” or “consistently with”.24 A similar definition in the Commonwealth FOI Act was considered by the Administrative Appeals Tribunal in Sobczuk v Carnarvon Medical Service Aboriginal Corporation.25 In that case, Deputy President Forgie was called upon to decide whether the corporation was a “prescribed authority” under the Commonwealth FOI Act. [24] The definition then, relevantly, provided that a prescribed authority included “a body corporate, or an unincorporated body, established…by, or in accordance with the provisions of an enactment…”26. [25] The Aboriginal association was incorporated by the Registrar of Aboriginal Corporations pursuant to a power conferred on him by the Aboriginal Councils and Associations Act 1976 (Cth) (ACA Act). Although the process was prescribed by the Act, because it did not set out a profile with which the corporation had to conform, the Member considered it had not been established in accordance with, in the sense of consistently or in conformity, with the ACA Act and, therefore, it was not a prescribed authority. [26] With respect to the Deputy President, I am not persuaded by the reasoning which appears unduly restrictive. The incorporation of the body was effected by the action of the Registrar in registering it in accordance with the process prescribed by the Act. I did not have the benefit of the parties’ submissions about that case, but am not inclined to adopt that reasoning. [27] In Barker v World Firefighters Games, Brisbane 200227, the Information Commissioner considered the definition of public authority and, in particular, whether the body had been established under an enactment. If it was, the Freedom of Information Act 1992 applied. The Information Commissioner referred to the approval obtained under the FAAA s44 to form the company as evidence that the government was the agency involved in establishing the body, but decided it had been established under the Corporations Law28, because it had been incorporated under that Act. [28] It seems the question of whether the approval under the FAAA also meant the body had been established under the FAAA was not considered. It was not necessary for the Information Commissioner to turn his mind to that question, the incorporation under the Corporations Law being sufficient to fulfil the requirement of the definition. 23 Reasons for Decision 31 March 2010 [101] 24 Walker v Wilson (1991) 99 ALR 1 at p11 25 [1995] AATA 864 26 Freedom of Information Act 1982 (Cth) s4(1)(a) 27 Decision No 80/2001 made on 27 September 2001 28 Corporations (Queensland) Act 1990 -- 6 of 11 -- 7 [29] I am not aware of any other determination by a Court or Tribunal which directly considers the point. [30] In the present case the requirement imposed by the FAAA that prior approval was obtained was fulfilled and, therefore, the Coordinator General might be said to have acted consistently in conformity with the FAAA in taking the further step of applying to register the company under the Corporations Act. [31] That is not the same thing as saying the company was established under (in accordance with) the FAAA. I accept CNI’s proposition that there must be a sufficient connection between an action taken under an Act and the legal constitution of the entity such that the entity can be said to have been established under that Act. [32] The Treasurer’s approval to applying to register CNI, if it had not been acted upon, would not have been sufficient to establish it under the FAAA. Until it was registered under the Corporations Act, CNI did not exist. [33] The company was brought into existence by an action undertaken by government under (in accordance with) the Corporations Act, i.e. by the application to register the company. The company was established, in the sense that it derives its legal character, by acts done in accordance with the Corporations Act, not the FAAA. [34] It is worth considering where the Information Commissioner’s reasoning would take one if it were applied to a scenario where a government agency was successful in registering a company under the Corporations Act without obtaining the Treasurer’s prior approval under the FAAA29. [35] In that case the company would not have been established in accordance with the FAAA. The agency’s action in establishing the company would be contrary to the requirement imposed by the FAAA. On the Information Commissioner’s reasoning, the RTI would not apply to that company. An interpretation that results in access to documents being dependant upon an agency’s compliance with an Act is unlikely to have been intended. [36] Whilst the FAAA has something to say about when a government agency may take steps to form a company, the interpretation favoured by the Information Commissioner fails to give due regard to the nature, character and effect of the action taken. [37] I accept CNI’s submission that obtaining an approval under the FAAA to apply to register CNI under the Corporations Act, is insufficient to satisfy the requirement that CNI was established under the FAAA, within the meaning of s16(1)(a)(ii) of the RTI. 29 It was not argued that a company could not be registered under the Corporations Act if the Treasurer’s prior approval under the FAAA was not obtained or that a company so registered would not be established. Whilst action may be open, for example to deregister the company, that is a different question to whether it would have been established within the meaning of s16(1)(a)(ii). -- 7 of 11 -- 8 [38] With respect to the Information Commissioner, it is my view that the Information Commissioner has erred in her interpretation that the words “established” and “established under an Act” encompass a process for obtaining the Treasurer’s approval under the FAAA to form a company under the Corporations Act. The approach to be taken in interpreting the Act [39] CNI’s remaining contentions raise more general questions about the approach that should be taken to statutory interpretation. Before considering the specific errors alleged, it is appropriate to say something about that issue in broad terms. [40] The Information Commissioner correctly stated that a provision of an Act should be construed consistently with the language and purpose of its provisions30. The interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation31. [41] The object of the RTI is to give a right of access to information in the government’s possession or under its control unless, on balance, it is contrary to the public interest to give access32. [42] This does not mean that distinctions which are apparently carefully drawn in the Act should be disregarded because their effect is to exclude an entity from the operation of the RTI. [43] Parliament’s intention is expressed not only in its objects provision. Its purpose is also evident from the structure of the Act and the specific language employed to give effect to the stated object. [44] The stated object does not operate to provide access to all documents held by a body connected with the government unless they are expressly excluded from the operation of the RTI. The right of access is conferred in those circumstances specified in the Act. That requires careful consideration of the definitions which determine those agencies and documents which are subject to the Act. Reliance on extrinsic material [45] CNI’s second contention is that the Information Commissioner erred in her reliance on extrinsic material to support her interpretation of s16(1)(a)(ii). That material comprises one of the recommendations of the Solomon Report33 and the government’s response to it: Recommendation 24 30 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 31 Acts Interpretation Act 1954 s14A 32 Right to Information Act 2009 s3(1) 33 The Right to Information: Reviewing Queensland Freedom of Information Act, Report of FOI Independent Review Panel published June 2008 -- 8 of 11 -- 9 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. Queensland 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. The impact of changes to the definition of a “public authority” on other legislation, such as the Public Records Act 2002 will be considered. The advice of the Queensland Parliamentary Counsel will be sought as to the appropriate form of drafting for the proposed provision. [46] The Information Commissioner considered these passages supported an interpretation that entities such as CNI were intended to fall within the scope of the RTI. [47] At the time the Solomon Report was published and the government response to recommendation 24 was announced, the equivalent section of the Freedom of Information Act 1992 (FOI Act) was s9(1)(a)(ii). It was in identical terms to s16(1)(a)(ii) except that the former used the term “enactment” rather than “Act” and the term “body” rather than “entity” . Nothing turns on those distinctions34. [48] CNI submitted that the extrinsic material demonstrates a correct appreciation by both the authors of the report and the government’s response that, if a government body incorporated under the Corporations Act was to be subject to the RTI, there would need to be a change in the definition of “public authority”. [49] When the RTI was enacted, new definitions were adopted which did expand the reach of the RTI, when compared with the scope of the FOI Act. Under the FOI Act, with some exceptions, there was a right to access documents held by an agency35. It defined agency to mean a department, a local government or a public authority36. Under the RTI, the definition of agency plays the same role but has been extended to encompass a government owned corporation or a subsidiary of a government owned corporation37. 34 “enactment” was defined to mean “an Act or statutory instrument”: Freedom of Information Act 1992 s7. The provisions applying to the interpretation of the word “Act” in the Acts Interpretation Act 1954 (ss6,7) were then as they are now. 35 Freedom of Information Act 1992 s21 36 Freedom of Information Act 1992 s8 37 Right to Information Act 2009 s14(1)(d)(e); Acts Interpretation Act 1954 s36 GOC or government owned corporation has the same meaning as in the Government Owned Corporations Act 1993 -- 9 of 11 -- 10 [50] A company is a government owned corporation if it is: (a) established as a body corporate under an Act or the Corporations Act; and (b) declared by regulation to be a GOC38. [51] The change made to the definition of agency to include government owned corporations and their subsidiaries is consistent with the government’s response to recommendation 24. It may not go so far as it might have, to encompass corporations not declared to be a GOC, but that is not to the point. The extrinsic materials disclose that the question of coverage of such entities was raised with executive government, that it considered it and that it intended to obtain advice about an appropriate form of drafting. There is nothing in the material that suggests any error in the drafting or that Parliament intended the RTI to apply to agencies other than those specifically included in the amended definition of agency. [52] I do not consider recommendation 24 and the government’s response to it supports the interpretation of s16(1)(a)(ii) adopted by the Information Commissioner. Rather, it explains the expanded definition of agency that appears in the RTI. The scheme of the RTI and the Role of Schedule 2 in that scheme [53] CNI’s third contention is that the Information Commissioner erred in construing the scheme of the RTI and the role of Schedule 2 in that scheme. The Information Commissioner concluded that if Parliament had intended CNI to be excluded from the operation of the RTI it would have been listed in Schedule 2. [54] Under the RTI, as it was under its predecessor, the FOI Act, a person has a right to be given access to documents of an agency39. The definition of agency is both inclusive and exclusive. [55] It is inclusive by stating that it means the following: (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 corporation40. [56] It is also exclusive in that the definition excludes an entity to which this Act does not apply41. That phrase is defined by reference to Schedule 242. 38 Government Owned Corporations Act 1993 s5 39 Right to Information Act 2009 s23 40 Right to Information Act 2009 s14(1) 41 Right to Information Act 2009 s14(2) 42 Right to Information Act 2009 s17 -- 10 of 11 -- 11 [57] It is not simply a question of considering whether CNI is specifically referred to in Schedule 2. Unless CNI falls within one of the categories specified in the inclusive definition, Schedule 2 has no relevance or application. [58] Respectfully, I consider the Information Commissioner erred in her reliance on the absence of CNI from Schedule 2 in support of the interpretation of the words “established” and “established under an Act” in s16(1)(a)(ii). Orders 1. The appeal is allowed. 2. The decision of the Information Commissioner (application no 220004) made on 31 March 2010 is set aside. -- 11 of 11 --