25 Oct 2010

Does Queensland's Right to Information Act apply to Special Purpose Vehicles?

QCAT's decision in City North Infrastructure Pty Ltd v Information Commissioner [2010] QCATA 60 clarifies that the Right to Information Act 2009 (Qld) (RTI Act) does not apply to corporate Special Purpose Vehicles established by the State Government under the Corporations Act 2001 (Cth).

What is a public authority to which the Right to Information Act applies?

An entity can be subject to the RTI Act if it is a "public authority" as defined under the RTI Act, which has three elements:

  • established by government
  • under an Act
  • for a public purpose.

City North Infrastructure Pty Ltd (CNI) is a Special Purpose Vehicle established by the Queensland Government to assist in the delivery of certain infrastructure projects. Before a State Government Department can form a company it must obtain the Treasurer's approval (under the Financial Accountability Act).

It was common ground that CNI was established by the State Government for a public purpose, and that the relevant "Act" would have to be an Act of the Queensland Parliament. The issue was whether CNI had been established under a State Act.

"Established under an Act" - QCAT adopts a narrow approach

Deputy President Kingham adopted a narrow interpretation. She said that there must be a sufficient connection between an action taken under an Act and the legal creation of the entity, so that it can be said that the entity was established under the Act.

In this case, although the Treasurer's approval under the State Act was a pre-condition for the establishment of CNI, this was not enough. CNI was brought into existence under the Corporations Act, a Commonwealth Act and therefore was not a "public authority".

What does this mean for Queensland government agencies?

For Special Purpose Vehicles established solely under the Corporations Act, this decision is a useful clarification of their responsibilities. There had been some uncertainty about the scope of the RTI Act in these circumstances.

As the first decision made by QCAT in relation to the RTI Act, this case is also a useful indication of how QCAT will approach its task. Deputy President Kingham noted that:

  • the RTI Act had specific definitions that had to be carefully considered and applied;
  • the broad statutory objects clause under the RTI Act, of itself, did not mean that an applicant could gain access to all documents of bodies connected with government unless they were expressly excluded from the operation of the RTI Act; and
  • the task is to consider the meaning of the specific terms and definitions as set out in the Act.

As the RTI Act has introduced significant changes affecting all Queensland agencies, we will continue to monitor its consideration by the Information Commissioner, QCAT and the Courts.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.