Davis v City North Infrastructure Pty Ltd [2011] QSC 285

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - RIGHT OF ACCESS - GENERALLY -where respondent was incorporated pursuant to the Corporations Act 2001 (Cth) to manage procurement of road infrastructure projects - where respondent was wholly owned by the State of Queensland - where the incorporation of the respondent was initiated by the Coordinator-General, whose powers are conferred by the State Development and Public Works Organisation Act 1971 (Qld) - where the incorporation of the respondent required the approval of the Treasurer under the Financial Administration and Audit Act 1977 (Qld) - where applicant was denied access to a document on the ground that the respondent was not subject to the Right to Information Act 2009 (Qld) - whether respondent is an "agency" within the meaning of s 14 of the Right to Information Act - whether respondent is "established by government under an Act" within the meaning of s 16(1)(a)(ii) of the Right to Information Act

Acts Interpretation Act 1954 (Qld), s 6, s 36

Financial Accountability Act 2009 (Qld), s 88

Financial Administration and Audit Act 1977 (Qld) (repealed), s 44

Freedom of Information Act 1992 (Qld) (repealed), s 9

Government Owned Corporations Act 1993 (Qld), s 5

Right to Information Act 2009 (Qld), s 14, s 16

State Development and Public Works Organisation Act 1971 (Qld), s 8

Bryce v Curtis (1983) 51 ALR 73 cited

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

Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117; [1987] HCA 28 cited

Davis v City North Infrastructure Pty Ltd (unreported, Queensland Court of Appeal No.12315 of 2010, 10 June 2011) cited

Re English and Queensland Law Society Incorporated [1995] QICmr 22; (1995) 2 QAR 714 cited

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 cited

Joint Coal Board v Cameron (1989) 24 FCR 204; [1989] FCA 437 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 cited

Queensland Law Society Incorporated v Albietz [1996] 2 Qd R 580 cited

[1] The respondent was incorporated in 2006 pursuant to the Corporations Act 2001 (Cth) to manage the procurement of the Airport Link and Northern Busway Projects and associated works. It was later given the additional responsibility of overseeing the contract management of the Airport Roundabout Project. Each of these projects involves the development and construction of road transport infrastructure.

[2] The respondent is wholly-owned by the State of Queensland, with individual shareholders holding their shares on trust for the State.

[3] The applicant is a resident of Wooloowin, a suburb that is affected by the Airport Link Project. In 2009, the Kalinga Wooloowin Residents Association was formed to represent residents affected by the Airport Link Project, and the applicant presently is the secretary of that Association. As part of his involvement with that Association, the applicant applied to the respondent under the Right to Information Act 2009 (Qld) ("the RTI Act") seeking access to a particular document. The respondent advised him that he would not be provided with the document because it considered that it was not subject to the RTI Act.

[4] The issue of whether the respondent is subject to the RTI Act was considered by the Information Commissioner, who decided on 31 March 2010 that the respondent is subject to the RTI Act. The respondent appealed that decision to the Queensland Civil and Administrative Tribunal ("QCAT"). In a decision delivered on 14 October 2010, the Deputy President of QCAT allowed the respondent's appeal and ordered that the Information Commissioner's decision of 31 March 2010 be set aside.[1] The applicant appealed the decision of QCAT. However, he applied for leave to withdraw the appeal in the circumstances described by the Court of Appeal in its decision dated 10 June 2011.[2] At the time that he sought and obtained leave to withdraw the appeal, the parties contemplated that the applicant would apply for declaratory relief in relation to the proper construction of the legislation, and that such an application would be made in the Applications List. This has occurred.

[5] By an originating application filed on 26 August 2011, the applicant seeks the following declarations:

1. A declaration that the respondent is "a public authority" for the purposes of the Right to Information Act 2009; and

2. A declaration that the respondent is "an agency" for the purposes of the Right to Information Act 2009.

[6] The parties are agreed that the respondent can only be "an agency" if it is a "public authority" under s 14(1)(c) of the RTI Act. Whether or not it is a "public authority" depends on whether it is an entity "established by government under an Act [of the Queensland Parliament]" for a public purpose. There is no dispute that the respondent was established for a public purpose. Accordingly, the essential issue is whether the respondent was "established by government under an Act" of the Queensland Parliament. This depends upon the meaning of the quoted words, which appear in s 16(1)(a)(ii) of the RTI Act, as construed in their statutory context.

(a) 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 the respondent was "established by [the Coordinator-General] under [the SDPWO Act]"; and

(b) that as the respondent could not lawfully be incorporated without the consent of the Treasurer under s 44 of the Financial Administration and Audit Act 1977 ("the FAA Act"), the respondent was "established by [the Treasurer] under [the FAA Act]".[3]

The second argument was advanced by the applicant before QCAT, and was rejected. The first argument was not raised by the applicant before QCAT, and the applicant places principal reliance upon it.

[8] In response to both arguments, the respondent submits that the phrase "established by government under an Act" directs attention to the word "established" which, according to its ordinary meaning, means to set up, inaugurate or create, and which is defined in s 36 of the Acts Interpretation Act 1954 (Qld) to include "constitute and continue in existence." It submits that the central concept with which s 16(1)(a)(ii) is concerned is whether an entity derives its existence from an Act. It submits that whatever might have been done under either the SDPWO Act or the FAA Act, it was not sufficient to establish the respondent. It submits that nothing done under either Act created, set up or constituted the respondent under that Act. It submits that the expression "entity established by government under an Act" describes a direct relationship between the existence of the entity and the Act which is the source of that existence. It does not extend to or include acts preparatory to the establishment of an entity which, themselves, are not sufficient to establish the entity.

[9] The Coordinator-General was created as a corporation sole by s 8A of the now repealed State Development and Public Works Organisation Act 1939 (Qld). Sections 8(1) and 8(2) of the State Development and Public Works Organisation Act 1971 (Qld) preserved, continued in existence and constituted under that Act the corporation sole constituted by the person who is the Coordinator-General. The purposes of the SDPWO Act are to provide for State planning and development through a coordinated system of public works organisation, for environmental coordination and for related purposes. Section 8(3) of that Act confers on the Coordinator-General power to "do and suffer all such acts and things as are necessary for the proper exercise and performance of the powers, functions and duties of the Coordinator-General to the same extent as a natural person might do or suffer." For the purposes of that Act, the Coordinator-General represents the Crown, and has and may exercise all the powers, privileges, rights and remedies of the Crown.[4] The Coordinator-General is an entity "established for a public purpose by an Act" and accordingly is a "public authority" within the meaning of s 16(1)(a)(i) of the RTI Act. Because it is a public authority, the Coordinator-General is "an agency"[5] and the RTI Act defines "government" as including "an agency".[6]

[10] Section 44 of the Financial Administration and Audit Act 1977 (Qld), which is now repealed, provided that a department may form, or participate in the formation of, a company only under a Treasurer's approval. The FAA Act contained requirements for obtaining the Treasurer's approval, and guidelines were developed to assist applicant departments to understand the sorts of matters to which the Treasurer would have regard when deciding whether to approve the formation of a company pursuant to s 44 of the FAA Act.

[11] The Treasurer's approval for the formation of the respondent was obtained on 12 December 2006.

[12] An application was made to the Australian Securities and Investments Commission ("ASIC") to register the respondent. It is said by the respondent that it was formed "by the State through the agency of the Coordinator-General within what is now the Department of Infrastructure and Planning". The proceeding before me was conducted on the basis that persons acting on behalf of the Coordinator-General made the required application to ASIC.

[13] The respondent came into existence as a body corporate on 22 December 2006 when it was registered by ASIC as a proprietary company limited by shares. It was thereby established pursuant to the provisions of the Corporations Act 2001 (Cth).

[14] The respondent is not a "government owned corporation" within the meaning of s 5 of the Government Owned Corporations Act 1993 (Qld) because it has not been declared by regulation to be a government owned corporation.

[15] Section 23 of the RTI Act provides, relevantly as follows:

"23 Right to be given access to particular documents

(1) Subject to this Act, a person has a right to be given access under this Act to -

[16] The term "agency" is defined in s 14 of the RTI Act, relevantly, as follows:

(e) a subsidiary of a government owned corporation."

[17] The term "public authority" is defined in s 16 of the RTI Act, relevantly, as follows:

(1) In this Act, public authority means any of the following entities -

(ii) established by government under an Act for a public purpose, whether or not the public purpose is stated in the Act".

Relevant provisions of the Acts Interpretation Act

[18] The terms "Act", "establish" and "under" are defined in the Acts Interpretation Act 1954 (Qld) ("the Acts Interpretation Act") as follows:

Act means an Act of the Queensland Parliament, and includes -

(a) a British or New South Wales Act that is in force in Queensland; and

(b) an enactment of an earlier authority empowered to pass laws in Queensland that has received assent.

1. Meaning of commonly used words and expressions

establish includes constitute and continue in existence.

under, for an Act or a provision of an Act, includes -

[19] The definition of "establish" in the Acts Interpretation Act is not exhaustive. The applicant cites dictionary definitions by which the word is defined to include "to set up on a firm basis; institute; found (in context of university, government or business); to set up or bring about (order)...".[7] The applicant notes that these meanings are encompassed by the term "constitute", which means "1. To compose; form. 2. To appoint to an office or function; make or create. 3. To set up or found."[8]

[20] The respondent submits that the ordinary meaning of "establish" is to set up, inaugurate or create. It submits that regard should be had both to this ordinary meaning and to the statutory definition of "establish" in the Acts Interpretation Act in construing s 16(1)(a)(ii).

[21] It is possible to "establish" an entity without it being incorporated. A non-corporate entity may be established under an Act - for example, a limited partnership that is established under s 50 of the Partnership Act 1891 (Qld) upon registration of a statement in the approved form signed by each person who is to be a partner in the partnership and payment to the chief executive of the prescribed fee. Incorporation is one way in which an entity may be constituted or established. Chief Justice Burt observed that the primary meaning of the word "to incorporate" is to constitute as a legal artificial corporation.[9]

[22] In his written submissions to QCAT on the issue of interpretation, the applicant submitted:

"21. The ordinary meaning of the word 'under' in the context of the phrase 'under an Act' is 'in accordance with' or 'pursuant to' or 'with the authority of'. The Macquarie Dictionary, Second Edition gives as its eleventh meaning: 'subject to the rule, direction, guidance, etc of' (examples: 'under supervision' or 'study under a professor'). Its fourteenth meaning is 'with the favour or aid of' (example: 'under protection'). The fifteenth meaning is 'authorised, warranted, or attested by' (example: 'under one's hand or seal). The meaning most applicable is, perhaps, the sixteenth meaning: 'in accordance with' (example: 'under the provisions of the law')."

This interpretation of the word 'under' was submitted to be generally consistent with the expanded definition contained in s 36 of the Acts Interpretation Act.

[23] I consider that these submissions are correct.

[24] The terms of s 16(1)(a)(i) and (ii) of the RTI Act may be compared and contrasted. The former speaks in terms of an entity "established for a public purpose by an Act", whereas the latter refers to an entity "established by government under an Act for a public purpose" (emphasis added). Section 16(a)(i) is apt to refer to entities that are established by an Act - for example, when the statute constitutes a specific entity that is referred to in the legislation.[10] Section 16(1)(a)(ii) does not have the same sphere of operation. However, the words "under an Act" in s 16(1)(a)(ii) connote that the entity is established in accordance with an Act of the Queensland Parliament.

[25] There is no dispute concerning the general principles of statutory interpretation that apply to the present application. They include the principle that a statutory provision should be construed so that it is consistent with the language and purpose of all of the provisions of a statute.[11] An interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation.[12] Reference to the purposes of the Act is of no particular assistance in resolving the present point of statutory interpretation. This is because the primary object of the Act, namely "to give a right of access to information in the government's possession or under the government's control unless, on balance, it is contrary to the public interest to provide the information"[13], is achieved by detailed provisions that define the information and agencies that are subject to the Act. The Parliament did not intend that the right of access to information should extend to a document held by an entity that falls outside of the Act's definition of "agency". If the Parliament had intended the Act to give a right of access to information to the fullest possible extent, then it would not have conferred that right by reference to certain defined agencies. That said, in construing the specific provisions of the Act, the purpose of the Act should be considered so that each specific provision is construed in a way that is consistent with the Act's purpose.

[26] The applicant did not submit that I should not follow the approach of the Deputy President of QCAT in relation to general questions about statutory interpretation or the use that might be made of extrinsic material. As to the latter, I adopt what was said by the Deputy President.[14] In short, the Queensland government's adoption of Recommendation 24 of the report of the FOI Independent Review Panel chaired by Dr Solomon AM[15] did not find expression in the language of the statute.

[27] Whilst the RTI Act adopted new definitions in s 14 to cover government owned corporations, it did not alter the definition of "public authority" in s 9(1)(a)(ii) of the Freedom of Information Act 1992 (Qld) ("the FOI Act") other than to use the term "entity" rather than "body". Section 16(1)(a)(ii) of the RTI Act otherwise replaced s 9(1)(a)(ii) of the FOI Act without amendment. But an amendment of substance to that provision, or some other relevant amendment of substance, would have been required to enact Recommendation 24 of the FOI Independent Review Panel, which was to extend the definition of "public authority" in s 9 of the FOI Act to include bodies established for a public purpose under an enactment of Queensland, the Commonwealth or another State or Territory.

[28] That recommendation was based on the understanding expressed at page 78 of the Solomon Report that:

"Another group of [Government Business Enterprises] is totally excluded from FOI because they are company [Government Owned Corporations] or other incorporated entities that owe their existence to the Commonwealth Corporations Law. As a consequence of this, each is not a body that is a public authority for the purposes of the FOI Act." (emphasis added)

The extrinsic material serves to confirm the interpretation for which the respondent contends. The FOI Act was understood not to extend to an entity such as the respondent. Yet, despite the Queensland government's response to Recommendation 24, 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.

[29] As to the approach to statutory construction, I respectfully adopt the following observations of the learned Deputy President of QCAT:

"[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 access.

[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."[16]

[30] Adopting this approach, it is necessary to turn to the words used by the Parliament to define the agencies that are subject to the Act.

[31] The applicant submits 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. It submits that the Coordinator-General, in exercise of executive power under the SDPWO Act, caused the respondent to be incorporated. It further submits that it does not matter that the respondent also may have been established under the Corporations Act, since an entity can be "established" under more than one Act.

[32] I accept the submission that an entity can be "established" under more than one Act. That proposition is supported by Joint Coal Board v Cameron,[17] wherein reference was made to the "ingenious legislative device" by which the Board was constituted by or in accordance with a Commonwealth Act and was also constituted by or in accordance with a State Act. The Commonwealth Act established the Board as a body corporate having the attributes, functions and powers specified in the Act, to the extent to which those powers and functions were not in excess of the legislative power of the Commonwealth. The State Act did likewise to the extent of the legislative powers of the State. The Board was constituted by or in accordance with the Commonwealth Act and also was constituted by or in accordance with the State Act because each Act provided for it to be constituted. The Board derived its existence from both Federal and State legislative sources.[18]

[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).

[34] The applicant's contention that the exercise by the Coordinator-General of the general powers given under the SDPWO Act is sufficient calls in aid Griffith University v Tang.[19] The High Court's decision in that case concerned the determination of whether a decision was made "under an enactment". That was said to involve two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, second, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. However, I do not consider that the decision in Tang particularly aids the resolution of the present issue of statutory interpretation.

[35] I am not persuaded that the exercise of a power conferred by a Queensland Act which results in the incorporation of an entity under the Corporations Act is sufficient to make the entity one that is "established... under an Act" of the Queensland Parliament. In this case, the Queensland Act relied upon, namely the SDPWO Act, does not say anything about the establishment of such an entity. It gives the Coordinator-General power to do acts that are necessary for the proper exercise and performance of the powers, functions and duties of the Coordinator-General. The fact that pursuant to these general powers the Coordinator-General took steps to cause a company to be incorporated pursuant to a Commonwealth law does not mean that the corporation was established under the SDPWO Act.

[36] The only Act under which the corporate entity was established was the Corporations Act 2001 (Cth). The SDPWO Act contained no provisions relating to the establishment of an entity, being provisions in accordance with which the respondent was established.

[37] The act of the Coordinator-General (or departmental officers acting on his behalf) that led to the establishment of the respondent, such as the lodging of an application with ASIC, as required by s 117 of the Corporations Act, was not done in accordance with a Queensland Act that provided for the establishment of an entity.

[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 Act relied upon by the applicant in its first argument, namely the SDPWO Act, is not concerned with the establishment of an entity. It contains no provisions that relate to the constitution or establishment of a body - for example, provisions that describe what is to be done to establish an entity. I am not persuaded by the applicant's first argument.

[40] The fact that the FAA Act contained a control upon applications by government departments in the formation of a company, namely a requirement for the Treasurer's approval, does not mean that the FAA Act was an Act under which a corporation was established.

[41] The Treasurer's approval of the formation of the respondent did not establish the respondent. The establishment of the respondent depended upon the making of an application to ASIC and the exercise by ASIC of its power to register the company.

[42] The FAA Act does not make provision for the establishment of an entity. It may be contrasted with Acts that do, such as the Partnership Act 1891 (Qld) and the Associations Incorporation Act 1981 (Qld). Instead, it imposes an additional requirement that must be observed before an application for incorporation by a department can be lodged. In the case of incorporation under the Corporations Act 2001 (Cth), an application for incorporation is made in accordance with ss 117 and 118 of that Act. The Treasurer's approval was not sufficient to establish the respondent.

[43] The fact that, approval having been obtained, departmental officers applied pursuant to the Corporations Act to register a company and the respondent was duly incorporated in accordance with Commonwealth law, does not give the prior act of approval by the Queensland Treasurer the quality or character of an Act that established the respondent.

[44] I agree with the conclusion reached by the Deputy President of QCAT, namely that obtaining an approval under the FAA Act to apply to register the respondent under the Corporations Act is 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.[20]

[45] I do not accept the applicant's second argument.

[46] I am not persuaded by either of the applicant's arguments. As a result, I decline to make the declarations sought in the Originating Application.

[47] I will hear from the parties concerning the form of orders and whether there is utility in making declarations that:

1. The respondent is not "a public authority" for the purposes of the Right to Information Act 2009;

2. The respondent is not "an agency" for the purposes of the Right to Information Act 2009.

[48] I will also hear the parties in relation to the issue of costs.

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

[2] Davis v City North Infrastructure Pty Ltd (unreported, Qld Court of Appeal No. 12315 of 2010, 10 June 2011)

[3] Section 44 of the FAA Act (now repealed) provided that a department may form, or participate in the formation of a company only under a Treasurer's approval. That provision is now contained in s 88 of the Financial Accountability Act 2009 (Qld).

[7] Macquarie Concise Dictionary (3rd edition, 1997).

[9] Bryce v Curtis (1983) 51 ALR 73 at 75.

[10] See, for example, Re English and Queensland Law Society Incorporated [1995] QICmr 22; (1995) 2 QAR 714 at 734; on appeal it was not in issue that the society was established by an enactment: Queensland Law Society Incorporated v Albietz [1996] 2 Qd R 580.

[11] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [1998] HCA 28.

[12] Acts Interpretation Act, s 14A.

[13] See section 3 of the Preamble to the RTI Act.

[14] [2010] QCATA 60 at [45]- [52].

[15] FOI Independent Review Panel, The Right to Information: Reviewing Queensland's Freedom of Information Act (Report, June 2008) ("the Solomon Report").

[16] [2010] QCATA 60 at [41]- [44].

[17] [1989] FCA 437; (1989) 24 FCR 204 at 206, [1989] FCA 437 at [13] per Davies J.

[18] Ibid per Davies J; ibid at 213, [24]-[25] per Beaumont and Pincus JJ. See also Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117 at 127, [1987] HCA 28 at [6] where joint Commonwealth and State authorities were said to "derive their existence from the Commonwealth Act and from the State Act" that constituted them.

[19] [2005] HCA 7; (2005) 221 CLR 99 at 130, [2005] HCA 7 at [89].

[20] City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 60 at [37].