Australian Securities Commission Act 1989 - S 11

Commonwealth Banks Act 1959

Crimes Act 1914

Freedom of Information Act 1982 - Ss 4, 15, 55, 56

Income Tax Assessment Act 1936 - S 23

Bryce v Curtis (1983) 51 ALR 73

Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation [1924] HCA 23; (1924) 34 CLR 580

Mercantile Mutual Life Insurance Co Ltd and Another v Australian Securities Commission and Others (1993) 112 ALR 463; 10 ACSR 140; (1993) 11 ACLC 235; (1993) 40 FCR 409; (1993) 29 ALD 616

Re Brennan and Law Society of the Australian Capital Territory (1984) 1 AAR 529; (1984) 6 ALD 428

Renmark Hotel Inc v Federal Commissioner of Taxation [1949] HCA 7; (1949) 79 CLR 10; (1949) 9 ATD 106; (1949) 4 AITR 254; (1949) 23 ALJR 445

WA Turf Club v Federal Commissioner of Taxation [1978] HCA 13; (1978) 139 CLR 288; (1978) 78 ATC 4133; [1978] HCA 13; (1978) 19 ALR 167; (1978) 8 ATR 489; (1978) 52 ALJR 382

Walker v Wilson [1991] HCA 8; (1991) 99 ALR 1; (1991) 65 ALJR 273; (1991) 172 CLR 195

DECISION AND REASONS FOR DECISION [1999] AATA 864

And CARNARVON MEDICAL SERVICE ABORIGINAL CORPORATION

Decision The Tribunal concludes that the Carnarvon Medical Service Aboriginal Corporation is not an agency for the purposes of the Freedom of Information Act 1982.

On 2 June, 1999, the applicant, Mr Pedro Sobczuk, applied for review of a decision of the respondent, the Carnarvon Medical Service Aboriginal Corporation ("the CMSAC") deemed to have been made under the Freedom of Information Act 1982 ("FOI Act"). It was deemed to have been made under section 56 for the purposes of enabling Mr Sobczuk to apply under section 55 of that Act when the CMSAC failed to respond to a request which he had made to it for access to certain documents. The issue in this case is whether the CMSAC is an agency and so a body which is obliged to respond to Mr Sobczuk's request. If it is, the next issue is its decision to refuse to give him access as requested may be reviewed by this Tribunal.

2. At the hearing, Mr Sobczuk represented himself and its solicitor, Ms Stokes, represented the CMSAC. Both parties made oral submissions. The CMSAC also made written submissions dated 6 September, 1999 and Mr Sobczuk made written submissions dated 14 October, 1999. Ms Stokes also referred to a letter written to Mr Sobczuk by the Office of the Information Commissioner in Western Australia on 29 March, 1999.

3. Under section 55 of the FOI Act, a person may apply to the Tribunal to review a range of decisions including a decision refusing to grant access to a document in accordance with a request. Section 56 applies in situations in which a request has been made to an agency in accordance with section 15, the period of 30 days (or such longer period as has been authorised under sub-section 15(6)) has expired and notice of a decision on a request has not been received by the applicant. In those circumstances, the agency is deemed, for the purposes of making an application under section 55, to have made a decision refusing access on the last day of the period. There is no question in this case that Mr Sobczuk has made a request and that the CMSAC has not responded to his request within 30 days. The question is whether Mr Sobczuk made a request to an "agency" when he made his request to the CMSAC.

4. An "agency" is defined in sub-section 4(1) to mean:

"... a Department, a prescribed authority or an eligible case manager;"

The CMSAC is clearly not a "Department" for it is not a "... Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth ..." (sub-section 4(1)). It is not an "eligible case manager" for it is not "... an entity (within the meaning of the Employment Services Act 1994) ..." that meets the criteria set out in the definition of that term in sub-section 4(1).

5. Is the CMSAC a "prescribed authority"? That term is defined in sub-section 4(1) to mean:

"(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than:

(ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act;

(iii) the Australian Capital Territory House of Assembly;

(iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory;

(v) the Legislative Assembly of the Territory of Norfolk Island; or

(b) any other body (other than Qantas Airways Limited or a company that is a subsidiary of that company), whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being:

(i) a body established by the Governor-General or by a Minister; or

(ii) an incorporated company or association over which the Commonwealth is in a position to exercise control;

(c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order-in-Council; or

(d) the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Council;"

6. The CMSAC does not come within the terms of paragraph (b) of the definition for it is not a body which has been declared to be a prescribed authority by the regulations made under the FOI Act. It does not come within paragraph (c) for it is a body rather than an individual. For the same reason, it does not come within paragraph (d).

7. That leaves paragraph (a) of the definition. At the outset, I note that I am satisfied that the Registrar of Aboriginal Corporations ("the Registrar") has issued a Certificate of Incorporation of an Aboriginal Association on Change of Name certificate under the Aboriginal Councils and Associations Act 1976 ("the ACA Act"). He did so on 25 June, 1987. That certificate was issued pursuant to section 53 of the ACA Act. I find that the CMSAC was originally incorporated under the name of Carnarvon Aboriginal Medical Service Aboriginal Corporation on 19 September, 1986. It changed its name to the CMSAC on 25 June, 1987.

8. I have also had regard to the ACA Act. Sub-section 43(1) of that Act provides that the committee of an Aboriginal association may apply to the Registrar of Aboriginal Corporations ("the Registrar") for incorporation of the association under the Act. An "Aboriginal association" is defined in section 3 to mean:

(a) eligibility for membership of which is limited to Aboriginals and spouses of Aboriginals;

(b) that has as members not less than 5 adult Aboriginals; and

(c) that is formed or carried on for any lawful object, including the securing of a pecuniary profit to its members;"

9. Each application for incorporation is to be accompanied by a statement of the Rules by which, in the event of its incorporation of the association, its affairs are to be regulated (sub-section 43(2)). Those Rules must make provision for such matters as the qualifications of the members of the association, the creation of the executive offices, the management of funds and the manner in which the objects of the association may be altered (sub-section 43(3)). Where the association is to be carried on either wholly or partly for the purpose of securing a pecuniary profit, the Rules must deal with such matters as the distribution of the profits (section 44). The Rules may be based on Aboriginal custom with respect to any matter with which they deal (sub-section 43(4)).

10. Once the Registrar has received an application, he is required to issue to the association a certificate of incorporation if he is satisfied that it is proper for him to do so. Circumstances in which he might refuse to issue the certificate include those in which the association's name is unauthorised or the Registrar is satisfied that the Rules are unreasonable or inequitable or do not make sufficient provision to give the members of the association effective control over its running. (section 45)

"Upon the issue to an Aboriginal association of a certificate of incorporation under section 45, the association:

(a) in the case of an unincorporated association - becomes a body corporate with perpetual succession;

(aa) in the case of an association incorporated otherwise than under this Act - continues in existence by force only of this section as a body corporate and has perpetual succession;

(c) may acquire, hold and dispose of real and personal property; and

(e) (sic) may sue and be sued in its corporate name."

12. It is clear from this provision that the CMSAC became a body corporate upon its incorporation. It is also clear from the provisions of the ACA Act that, at a time immediately before its incorporation, the CMSAC must have existed as an association, society or body with an identifiable membership and with rules regarding eligibility for that membership. It was not established as an association by, or in accordance, with the provisions of the ACA Act.

13. That, however, is not an end of the matter in considering whether or not the CMSAC is a body corporate established by, or in accordance with, the ACA Act. As the word "established" immediately follows the words "body corporate" in paragraph (a) of the definition of "prescribed authority" in the FOI Act, the issue is whether the CMSAC was established as a body corporate in the manner prescribed by that definition. As was said by Stephen J in W.A. Turf Club v Federal Commissioner of Taxation [1978] HCA 13; (1978) 139 CLR 288 (Barwick CJ, Stephen, Jacobs, Murphy and Aickin JJ) in considering whether an unincorporated turf club was a "public authority constituted under a ... State Act":

"It is clear from these cases that an entity need not from its origin have possessed those qualities which at the relevant date make it a public authority; it may acquire the necessary attributes subsequently and if it does so as a result of legislation it will thereupon have become a public authority." (page 293)

The cases to which his Honour referred were Renmark Hotel Inc v Federal Commissioner of Taxation [1949] HCA 7; (1949) 79 CLR 10 and Incorporated Council of Law Reporting (Qld) v Federal Commissioner of Taxation [1924] HCA 23; (1924) 34 CLR 580. Each of the cases considered whether a body was a public authority constituted under a State Act within the meaning of paragraph 23(d) of the Income Tax Assessment Act 1936.

14. Regard must also be had to the judgement of Burt CJ in Bryce v Curtis (1983) 51 ALR 73 to which Ms Stokes referred. Mr Bryce had been convicted for the offence of imposition against the Commonwealth. The magistrate had found that he knew, at the time he obtained goods by using his Commonwealth Trading Bank bankcard, that his credit limit had been exceeded. The issue was whether the Commonwealth Trading Bank was a "public authority under the Commonwealth" within the meaning of the Crimes Act 1914. Section 3 defined that expression to mean "any authority or body constituted by or under a law of the Commonwealth or of a Territory". Burt CJ found that the bank had been established under the Commonwealth Bank Act 1945 and it was preserved and continued in existence under and subject to the conditions of the Commonwealth Banks Act 1959. As such, it was a body constituted under a law of the Commonwealth as well as being a body which was incorporated under a law of the Commonwealth. He did not consider that the definition should be "read down" in any way.

15. In the course of his reasons, Burt CJ noted that there could be a difference between the words "to constitute" and "to incorporate". He said that the former meant "to establish" and the latter meant "to constitute as a legal artificial incorporation". While there is such a difference in meaning, I do not consider that it assists me to draw the distinction in this case. The definition of "prescribed authority" has itself focused upon the body to be examined against the criteria set out in that definition. It is the body corporate and not any other body upon which the focus is placed.

16. This approach is consistent with that adopted by Deputy President Hall in Re Brennan and Law Society of the Australian Capital Territory (1984) 1 AAR 529 when considering whether the Law Society of the Australian Capital Territory was a prescribed authority for the purposes of the FOI Act. He said:

"The decision in Bryce's case, far from supporting any distinction between the words 'constitute' and 'establish', supports the view that those words are synonymous - a view that accords with my own understanding and with the dictionary definitions to which I have referred (see also In Re East and West India Dock Co. (1888) 38 Ch. D. 576 at 582 per Chitty J). In my view, therefore, when the Law Society was 'constituted a body corporate' pursuant to s. 6(1) of the Legal Practitioners Ordinance (1970) it was 'established' as a body corporate within the ordinary meaning of that word. It matters not, in my opinion, that the Law Society was previously an unincorporated body established as such in 1933. For the purposes of the definition of 'prescribed authority', the question is whether the Law Society is a body corporate 'established (scil. As a body corporate_) ... by an enactment'. In my view, the Law Society clearly satisfies this requirement. It owes its existence as a body corporate to the 1972 Ordinance. It was that Ordinance that established the Society as such._" (pages 536-537)

17. Was the CMSAC established as a body corporate "by, or in accordance with, the provisions of an enactment"? Taking first the phrase "in accordance with", I note that it has been considered in a number of contexts but the interpretations adopted in each have been consistent. They are reflected in the following passage from the judgement of Deane, Dawson, Toohey and McHugh JJ in Walker v Wilson [1991] HCA 8; (1991) 99 ALR 1. One of the issues under consideration was whether a journey had been undertaken in accordance with the terms and conditions of an employee's employment. Their Honours said:

"In the context of sub-para (iii), the words 'in accordance with' should be construed as meaning 'in conformity with' or 'consistently with'." (page 11)

18. Turning then to the word "by", I note that its ordinary meaning in the context of the definition is "... through the agency or efficacy of..." (Macquarie Dictionary, 2nd edition, 1991). The word was considered in Mercantile Mutual Life Insurance Co Ltd and Another v Australian Securities Commission and Others (1993) 112 ALR 463, in the context of the expression "by or under" which was used in an instrument of delegation. That instrument delegated powers conferred "by or under" the Corporations Law. The particular power in question had been given to the then Australian and Securities Commission by sub-section 11(4) of the then Australian Securities Commission Act 1989. In considering the meanings of the words "by or under", Black CJ said:

"The instrument of delegation of 21 March 1991 (the first instrument of delegation), which was the instrument referred to in the recital to the instrument of authorisation, delegated not only powers conferred 'by' the Corporations Law but, in addition, powers conferred 'under' the Corporations Law. Either word would have been appropriate to apply to the common situation where a section of an Act specifically confers a power and it is intended to delegate that power, although to refer to the power as being conferred 'by' the section may perhaps be more usual than to refer to the power as being conferred 'under' the section.

It is clear, however, that in the context of the instrument of delegation the word 'under' is not mere surplusage and that the two words are not intended to cover the same field. The word 'by' being plainly apt to apply to the common situation where a section of an act specifically confers a power, the additional words 'or under' should be read as extending the scope of the delegation beyond such a case. Those additional words would be apt to cover a power conferred by regulation made under the Corporations Law but they are probably not essential for that purpose and there is no reason to limit their application to such a case.

The express conferral of power by s 11(4) of the ASC Act is incomplete in the sense that it is an indispensable element of the conferral that there should be a function for the performance of which the power is necessary, or reasonably incidental, or with which the power is connected. It is only by the coexistence of the power and the relevant function that the power may be said to be conferred. Thus it may be concluded that the power in question is conferred by s 11(4) of the ASC Act but under the provision of the Corporations Law, in this case s 597, that confers the particular function that is essential for the conferral of the power to be complete.

A different conclusion would have been called for had either the word 'by' or the word 'under' been used alone in the instrument of delegation, but the use of both words compels, to my mind, the conclusion that the delegation should, in this respect, be construed expansively and to extend to the power to authorise persons to make applications, derived from s 11(4) of the ASC Act and s 597 of the Corporations Law working in necessary combination." (Mercantile Mutual Life Insurance Co Ltd and Another v Australian Securities Commission and Others ((1993) 112 ALR 463 at pages 466-467)

19. In view of both the authorities and the ordinary meanings of the words, it seems to me that the words "by, or in accordance with" used in the definition of "prescribed authority" in the FOI Act mean that the body corporate has been specifically established by the terms of the enactment or in conformity, or consistently, with the terms of the enactment. The difference is illustrated by the different situations of the Law Society of the Australian Capital Territory and the Joint Coal Board.

20. Taking first the Law Society of the Australian Capital Territory, sub-section 6(1) of the Legal Practitioners Ordinance 1970 provided that:

"The Law Society of the Australian Capital Territory is hereby constituted a body corporate by the name of 'The Law Society of the Australian Capital Territory'."

21. The Society was specifically established by the Ordinance as a body corporate. As Deputy President Hall said in Re Brennan:

"... it is beyond question that the status of the Society as a body corporate was derived entirely from the Ordinance. The Society was expressly constituted as a body corporate by force of s. 6(1) of the Ordinance and, as I said earlier, I see no relevant distinction between the word 'constituted' used in that subsection and the word 'established' used in the definition of prescribed authority. I find, therefore, that the Law Society is 'a body corporate established ... by an enactment' within the meaning of those words in the definition of 'prescribed authority'." (page 537)

22. Sub-section 5(1) of the Coal Industry Act 1946 provided that:

"The Governor-General may enter into an arrangement with the Governor of the State for the constitution, subject to this Act, of an authority which shall be known as the Joint Coal Board."

The Joint Coal Board so constituted was to consist of a Chairman and two members. Its powers and functions were to be those specified in the Commonwealth legislation. A mirror of these provisions was contained in the Coal Industry Act 1946 enacted by the New South Wales Parliament.

23. The Full Court of the Federal Court considered whether or not it could be said to have been established by or in accordance with an enactment. The effect was that the Joint Coal Board was established as a joint authority in the sense that the legislative authority of two Parliaments was necessary to establish it with the powers, functions and attributes set out in the two pieces of legislation. In the view of each of the judges of the Full Court, the fact that the Joint Coal Board was not exclusively established by or in accordance with the Commonwealth legislation did not detract from the fact that it was so established. It was so established whether or not it was said to have been established either by or in accordance with the Commonwealth legislation. Therefore, it was a prescribed authority within the meaning of the FOI Act.

24. Returning to the CMSAC, it has not been established by the ACA Act. That follows from the fact that there is no provision in the legislation specifically and directly establishing it as a body corporate. It has not been established in accordance with the ACA Act. That follows from the fact that the legislation does not set out a profile, as it were, with which the CMSAC must conform.

25. Instead, the ACA Act sets out a procedure that must be followed if an Aboriginal association wishes to be incorporated. It provides that the Rules must make provision for certain matters but does not limit the scope of those Rules. It does not specify the purposes for which an association may be incorporated. Once an Aboriginal association has satisfied the Registrar that it has properly made its application and that it is proper for him to do so, he is obliged to issue a certificate of incorporation to the CMSAC. In doing so, the Registrar exercises the power he has been given under section 45 of the ACA Act.

26. It was by virtue of the exercise of that power given by the enactment that the CMSAC was established as a body corporate. The CMSAC cannot be said to have been established by, or in accordance with, a law of the Commonwealth in the sense in which I understand those words to have been used in the definition of "prescribed authority". Upon the issue to it of its certificate of incorporation, it became a body corporate by virtue of paragraph 46(1)(a) of the ACA Act. The Registrar issued that certificate by exercising his power given to him by section 45. It became a body corporate, or was established as a body corporate, by virtue of the operation of a power given by a law of the Commonwealth and exercised after an Aboriginal association had taken certain decisions as to its form and purpose. It cannot be said to have been established directly by the ACA Act. It cannot be said to have been established in accordance with, in the sense of consistently or in conformity with, the ACA Act for the ACA Act did not set out a profile or template with which it could conform.

27. It follows that the CMSAC is not a body corporate established by or in accordance with an enactment. Consequently, it is not a prescribed authority, and so not an agency, for the purposes of the FOI Act.

28. Although this is enough to decide the issue, I would also note that the CMSAC is not a prescribed authority within the meaning of the FOI Act for it is an incorporated association. It matters not whether it is an Aboriginal association or an association incorporated under associations incorporation legislation applicable to associations generally. It has been incorporated as an association. The definition of "prescribed authority" specifically excludes an incorporated association. It does not limit that exclusion to associations incorporated under the relevant State associations incorporation legislation.

29. In view of the conclusions I have reached, there is no need to consider whether or not the CMSAC was established for a public purpose. For the reasons I have given, I have concluded that the Carnarvon Medical Service Aboriginal Association is not an agency for the purposes of the Freedom of Information Act 1982.

I certify that the twenty nine preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)