Abdelaziz v StateCover Mutual Ltd

[2015] NSWCATAD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Abdelaziz v StateCover Mutual Ltd [2015] NSWCATAD 1
Hearing dates:	26 November 2014, 16 December 2014
Date of orders:	12 January 2015
Decision date:	12 January 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Prof G. Walker, Senior Member
Decision:	Application dismissed for want of jurisdiction.
Catchwords:	GOVERNMENT INFORMATION (PUBLIC ACCESS) -- jurisdiction – what is an “agency” – StateCover Mutual Ltd not an agency.
Legislation Cited:	Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009; Government Information (Public Access) Regulation 2009
Texts Cited:	M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005)
Category:	Principal judgment
Parties:	Ahmed Abdelaziz (Adam Aziz) (applicant) State Cover Mutual Limited (respondent)
Representation:	Mr M Kunnen (agent for applicant) Solicitors: Ms J Nand, Sparke Helmore (respondent)
File Number(s):	1410575

reasons for decision

1. The applicant Ahmed Abdelaziz (Adam Aziz) on 3 June 2014 applied to the respondent for access to certain information held by it in relation to a workers’ compensation claim.

2. When the respondent did not make a decision on the application within the prescribed time, the applicant lodged an application with this tribunal on 8 October 2014 on the basis of a deemed refusal within the meaning of s 63 of the Government Information (Public Access) Act 2009 (GIPA Act) and seeking a review of the deemed refusal.

3. The application to the tribunal was listed for a planning meeting or directions hearing on 26 November 2014. At that meeting the respondent raised a preliminary objection of law in the nature of a demurrer ore tenus on the basis that the respondent StateCover Mutual Ltd is not an “agency” within the meaning of the GIPA Act and that consequently any information it holds is not “government information” to which a person may seek access under the Act. As a result the tribunal would lack jurisdiction to hear and determine the application for review.

4. The respondent having made oral submissions to that effect, the matter was adjourned to give the applicant an opportunity to prepare submissions in response. On the adjourned date, 16 December 2014, both parties presented oral submissions and foreshadowed possible written submissions to be filed and exchanged by the close of business on 24 December.

Applicable legislation

5. The purposes and objectives of the GIPA Act are set out in s 3:

3   Object of Act

(1)  In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)  authorising and encouraging the proactive public release of government information by agencies, and

(b)  giving members of the public an enforceable right to access government information, and

(c)  providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)  It is the intention of Parliament:

(a)  that this Act be interpreted and applied so as to further the object of this Act, and

(b)  that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

6. Under s 9, a person who makes an access application for government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure of the information.

7. “Government information” is defined broadly in s 4 as “information contained in a record held by an agency”. “Agency” is also defined in that section as including relevantly “a public authority”, a phrase that in turn is defined in cl 2 of schedule 4 as including, in cl 2(1)(b), “a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument”. Cl 2(3), however, specifically declares that certain named entities are not public authorities for the purposes of a provision the Act, including “(a) an incorporated company or association (unless declared to be a public authority for the purposes of the provision by a regulation under this clause)”.

8. The issue in this application is, therefore, whether the respondent is an “agency” for the purposes of the GIPA Act. If it is not, this tribunal has no jurisdiction to hear the application for review.

Applicant’s submissions

9. The applicant submitted that the respondent’s position rested on an unduly technical interpretation of the legislation. Originally the applicant’s claim had been based on schedule 4, cl 2(2)(b), but that line of argument had been abandoned, as under the GIPA Regulation cl 11, only four bodies had been declared to be public authorities for the purposes of cl 2(2)(b), none of which was the respondent. The applicant now sought to rely on cl 2(2)(g), which brings within the definition of a “public authority” a body declared to be a public authority by a regulation under that clause.

10. The applicant acknowledged that the respondent had not been so declared by a regulation, but submitted that the fact that it had not been declared was not conclusive. The applicant’s argument proceeded along the following lines.

11. First, the applicant referred to the objects of the GIPA Act, in particular s 3(2), which expresses the Legislature’s intention that the Act “be interpreted and applied so as to further the object of [the] Act”. The fact that the respondent had not been declared a public authority under cl 2(2)(g) did not mean that it should not have been. It was not the intention of the Legislature that the respondent would not be captured by the GIPA Act. Regulations did not always keep up with the marketplace and it was likely that the respondent would be declared a public authority when the regulations were amended in the future.

12. Secondly, the respondent corporation was created under a legislative instrument, namely the Workers’ Compensation Act 1987, and holds a licence under s 178 of that Act. It is therefore “a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument” within the meaning of cl 2(1)(b). That interpretation was supported by Parliament’s direction in s 3 to interpret and apply the Act so as to further its objects.

13. The applicant also wished to base his case on a third legal proposition, but at the adjourned hearing was not fully prepared to present it. He therefore requested and obtained leave to submit it later in writing, but no further submissions were received in the time allowed.

Consideration

14. The applicant on 3 June 2014 lodged a formal request with the respondent for access to the following information:

1. All information held by StateCover Mutual Ltd in any form in connection with claim number C 13/27527.

2. All information held by StateCover Mutual Ltd in any form in relation to any matter of Mr Ahmed Abdelaziz (Adam Aziz).

3. All correspondence between StateCover Mutual Ltd and Mosman Council in relation to any matter of Mr Ahmed Abdelaziz (Adam Aziz).

15. The fact that the information was not forthcoming within the prescribed time constituted, in the applicant’s submission, a deemed refusal pursuant to s 63 of the GIPA Act.

16. Persons aggrieved by a reviewable decision (including a deemed refusal under s 80(c) as in this case) may under s 100 of the GIPA Act seek a review by this tribunal. Section 100, when read with s 9 of the Administrative Decisions Review Act 1997, confers jurisdiction on the tribunal to review such decisions under the Act as are reviewable.

17. As it appears that no court or tribunal has considered the question whether the respondent is an “agency” for the purposes of the GIPA Act, the preliminary point of law raised in these proceedings appears to be a matter of first impression.

18. A search of the Australian Securities and Investments Commission records shows that StateCover Mutual Ltd, ACN 090 394 755, ABN 36 090 394 755 is an unlisted public company, liability limited by shares, that was registered on 3 November 1999. It is a not-for-profit organization and its registered office is in Sydney.

19. It is common ground that the respondent is an insurer approved and regulated by the Australian Prudential Regulation Authority (APRA) and that it holds a New South Wales specialist insurer licence (as a self-insurer) under the Workers’ Compensation Act 1987.

20. A person seeking access to information has a legally enforceable right to be provided with it under the GIPA Act only if the information is “government information”. That phrase is defined by s 4 as “information contained in a record held by an agency”.

21. Section 4(1) defines “agency” as being, relevantly for present purposes, “(c) a public authority, (d) a public office, … [or] (g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4”. Schedule 4, cl 2(1)(b) defines a “public authority” relevantly as “a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument”.

22. A treatise on the operation of Australian laws in this area makes the following point about the application of the various definitions of “agency”:

To determine the range of persons and bodies covered in each Act it is necessary to have regard both to those that are listed as falling within the definition of an “agency” and those that are specifically excluded. The Freedom of Information Acts exclude from the operation, totally or in part, a diverse range of bodies including courts and tribunals, legislative bodies, national security bodies and government-owned enterprises. They do not extend to private sector bodies such as contracted service providers, although documents in the possession of contractors may be accessible to the extent that they are subject to control by contracting agencies” (M Paterson: Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005).

23. In this case, schedule 4, cl 2(3) expressly excludes from the definition of “a public authority” the following: “(a) an incorporated company or Association (unless declared to be a public authority for the purposes of the provision by a regulation under this clause)”.

24. Part 4 of the Government Information (Public Access) Regulation 2009, cl 11, declares certain bodies to be public authorities for the purposes of cl 2(2)(b) of the Act (none of which is the respondent), but no organization is declared to be a public authority for the purposes of cl 2(3)(a). As there is no other way in which the respondent could be declared to be a public authority, the respondent is not a “public authority” under s 4(1)(c).

25. Nor is it a “public office”, the definition of which in schedule 4, cl 3 clearly applies only to offices held by natural persons. That view is reinforced by cl 3(2)(i), which refers to “a body”, a term that it does not apply to any of the offices referred to in the clause.

26. Nor is the respondent declared to be an “agency” by s 4(1)(g), which applies only to “a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4”. The only person or entity declared to be an agency for the purposes of cl 5 is the Service NSW Division of the Government Service and the respondent is not mentioned.

27. As regards the applicant’s first line of argument, the argument that the respondent should have been declared to be a public authority and might be so declared in the future is immaterial. This tribunal has jurisdiction to apply only the law as it is, not as it should be or might be in the future. The fact is that the respondent has not been declared a public authority under schedule 4, cl 2(2). Clause 2(1)(g) does no more than recognize that the regulations may declare a body to be a public authority, and it is cl 2(2) that sets out which classes of bodies may be so declared.

28. No bodies have been declared to be public authorities under schedule 4, cl 2(2)(a). Under cl 2(2)(b), four bodies have been declared to be public authorities in cl 11 of the regulation, but none of them have anything to do with workers’ compensation or the Workers’ Compensation Act.

29. As regards the applicant’s second line of argument, as Ms Nand pointed out, the respondent was not established or continued by or under the provisions of a legislative instrument as required by schedule 4, cl 2(1)(b) but is a body incorporated under the Corporations Act and holding a licence as a self-insurer under the Workers’ Compensation Act. The applicant’s second argument therefore cannot succeed.

30. Under s 3 of the GIPA Act, the tribunal is required to interpret and apply the Act so as to further its expressed objects. While that direction could be a decisive guide in the event of ambiguity or competing constructions, it is of less assistance in cases where, as here, the literal meaning of the Legislature’s language is plain.

31. I therefore conclude that the respondent is not a public authority or an agency within the meaning of the GIPA Act. The information sought by the applicant is therefore not “government information” and the statutory obligation to grant access does not apply to it.

32. It follows, therefore, that the tribunal has no jurisdiction to hear and determine the application.

33. The application is accordingly dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 January 2015