Gordon Resources Pty Ltd v State of Queensland
[2012] QCATA 135
•10 August 2012
| CITATION: | Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135 |
| PARTIES: | Gordon Resources Pty Ltd (Applicant/Appellant) |
| v | |
| State of Queensland acting through Treasury and Trade (Respondent) |
| APPLICATION NUMBER: | APL397-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K A Cullinane, AM QC, Judicial Member |
| DELIVERED ON: | 10 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – QUESTION OF LAW – JUDICIAL REVIEW – section 119 of the Right to Information Act 2009 – where appellant sought disclosure of information to verify alleged overpayment of private royalties – where appellant sought to exercise rights provided for under Right to Information Act 2009 – where the Information Commissioner refused access to a category of the documents requested – whether Commissioner erred in law in refusing to grant access to documents Mineral Resources Act 1989, s 334 Buck v Bavone (1976) 135 CLR 100 Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (“QCAT Act”).
REASONS FOR DECISION
This is an appeal pursuant to s 119 of the Right to Information Act2009 as amended (“the Act”) against a decision of the Information Commissioner refusing access to documents, the nature of which appear at a further point in these reasons.
Section 119 of the Act provides as follows:
“Appeal to Queensland Civil and Administrative Tribunal and question of law.
(1)A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review.
(2) The appeal may only be on a question of law.
(3) The notice of appeal must, unless the appeal tribunal is otherwise –
a. to be filed in QCAT’s registry within 20 business days after the date of the decision appeal from;
b. be served as soon as possible on all participants in the external review.
(4) The appeal tribunal
a. Has jurisdiction to hear and decide the appeal.
b. Must be constituted by one judicial member.
(5) The appeal may only be by way of re-hearing.”
The proceedings are in the nature of judicial review.[1]
[1]See Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 at 331 per French CJ, Gummow and Bell JJ.
The matter arises out of a dispute between the appellant and BHP-Billiton / Mitsubishi Alliance (“BMA”). There has been an alleged overpayment of private royalties to the appellant for a period.
The appellant claims that it has been unable to obtain information to verify the accuracy of BMA’s assessment and has in consequence sought to exercise the rights provided for in the Act.
During the course of the process commenced by the request for information and the subsequent external review by the Commissioner, the documents still in dispute were narrowed to parts of three pages. The Commissioner describes the contents of these pages at paragraph 9 of her reasons:
·“BMA Information – for example, revenue, applicable royalty rates, deductions (including port charges), rail freight.
·Aggregate, Private, Royalty Information – figures regarding the total of royalties payable to all relevant private land holders presented as aggregate amounts.”
The documents to which the appellant seeks access are described by the appellant in its application and are set out in paragraph 1 of the Commissioner’s reasons.
In the result, the Commissioner allowed access to the second category referred to in paragraph 9 of the reasons but refused access to the first category documents in paragraph 9.
This appeal is against the refusal of such access.
It is desirable that I set out the relevant parts of the Act before turning to the findings of the Commissioner.
Section 3 provides for the objects of the Act:
“(1)The primary object of this act is to give a right of access of information in the Government’s position or under the Government’s control unless, on balance, it is contrary to the public interest to give the access.
(2) The act must be implied and interpreted to further the primary object.”
Section 6 of the Act provides:
“Relationship with other Acts prohibiting disclosure of information.
This act overrides the provision of other acts prohibiting the disclosure of information”
Section 23 of the Act provides:
“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 -------
(a)documents of an agency; and
(b)documents of a Minister.”
Here the relevant agency is the Department of Employment Economic Development and Innovation.
Part 5 of Chapter 3 of the Act deals with applications for access to documents and the approach to be adopted.
Section 47 of the Act provides for the grounds on which access may be refused, with s 47(3)(b) providing that access might be refused to the extent that the document concerned comprises information the disclosure of which would on balance be contrary to the public interest under s 49.
Section 49 provides for the procedure to be followed when considering whether disclosure would be contrary to the public interest. Section 49 provides as follows:
“Contrary to public interest
(1)if an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
(2)This section sets out the steps to be taken and, in schedule 4, the factors, the Parliament considers appropriate when deciding, whether disclosure would, on balance, be contrary to the public interest.
(3)If it is relevant for an agency or Minister to consider whether, on balance, disclosure of information would be contrary to the public interest, the agency or Minister must undertake the following steps---
(a) identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including any factor mentioned in schedule 4, part 1 that applies in relation to the information ( an irrelevant factor);
(b) identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including any factor mentioned in schedule 4, part 2;
(c) identify any factor favouring nondisclosure that applies in relation to the information (a relevant factor favouring nondisclosure), including any factor mentioned in schedule 4, part 3 or 4;
(d) disregard any irrelevant factor;
(e) having regard to subsection (4) , balance any relevant factor or factors favouring disclosure against any relevant factor favouring nondisclosure;
(f) decide whether, on balance, disclosure of the information would be contrary to the public interest;
(g) unless, on balance, disclosure of the information would be contrary to the public interest, allow access to the information subject to this Act
(4)The factors mentioned in schedule 4, part 4 are factors favouring the conclusion that disclosure could reasonably be expected to cause a public interest harm (harm factors) but the fact that 1 or more of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that. On balance, disclosure of the information would be contrary to the public interest.
(5)However, despite an agency or Minister being able, under section 47(3) (b), to refuse access to all or part of a document, the agency or Minister may decide to give access.”
The relevant factors in this case – which are found in Part 2 of Schedule 4 and Part 3 of Schedule 4 – appear in the Commissioner’s reasons and are not really the subject of any contention here.
On the face of it, the Commissioner has followed the procedures provided for in s 49(3) of the Act.
However, the appellant contends that the Commissioner failed to correctly undertake the evaluation and balancing exercise for which s 49(3) provides.
More specifically, the appellant contends that there are four respects in which the Commissioner erred and these individually and cumulatively constitute errors of law.
Some of these concern the weight that it is said the Commissioner afforded to certain factors.
The task of an appellant challenging a finding of this kind on such a ground is not an easy one.
The appellant in its outline accepts that to establish an error of law in this regard, the Wednesbury unreasonable test must be satisfied.[2]
[2]See also Gibbs J (as his Honour then was) in Buck v Bavone (1976) 135 CLR 100 at 118-119.
The first ground concerns findings by the Commissioner[3] setting out factors which were not relevant to the question of disclosure and could not have the effect the appellant contended before the Commissioner.
[3] At paragraphs 30-36 of the Commissioner’s reasons.
The appellant contends that this approach involved legal error, as any identification of an irrelevant factor was limited to the factors mentioned in Schedule 4 Part 1. In my opinion, the terms of subsection (3)(a) of s 49 make it clear that the Commissioner was not limited in this way in her consideration. I also reject the suggestion that the Commissioner has applied an erroneous test of utility of the information. The Commissioner carefully considered whether the information was of any relevance to the issues between the parties and concluded they did not.
Even if there was some substance to this claim, it would be difficult to see how it would amount to an error of law affecting the outcome if the factors were of no significance in terms of the claim made by the appellant and its outcome.
The second ground alleges that the Commissioner overlooked the provisions of the Act requiring it to be administered with a pro disclosure bias.[4]
[4] See ss 3, 44 and 47 of the Right to Information Act2009.
This ground seems to come close to an argument that there is an error of law because if the proper approach had been adopted, the outcome would have been different.
The Commissioner referred to these matters at paragraphs 61 and 62 of her decision:
“61.The applicant’s submissions also raised the following in support of giving very limited weight to the public interest factor that disclosure of the BMA Information is prohibited by the Act, namely section 334 of the MR Act:
·The RTI Act is to be applied and interpreted to further its primary object
·The RTI Act should be administered with a pro-disclosure bias; and
·The grounds on which access may be refused are to be interpreted narrowly.
62. I agree these are the requirements of the legislation.”
There is no basis in my opinion upon which it could be concluded the Commissioner overlooked these matters and approached her task on a different basis to that which the Act requires.
In respect to ground 3, this ground concerns the weight afforded to two factors by the Commissioner. One of these was the prejudice and adverse affect to the business commercial or financial affairs of BMA, something the Commissioner thought was of “relatively great weight”. This factor is provided for item 2 of Part 3 of Schedule 4.
In addition to the complaint about the weight afforded to this factor, the appellant contended that the Commissioner did not provide any factual foundation for her finding in this regard.
It is in my view not possible to accept this. In paragraphs 42-44 of the reasons, the Commissioner stated:
“42.The BMA information comprises information about the mine’s tonnage, revenue, applicable royalty rates, deductions (including port charges) and rail freight for the September 2008 quarter. Some of the information concerning the Mine is interwoven with information about other mines owned or operated by BMA, which are outside the scope of the access application.
43.After careful consideration, I am satisfied that disclosure of the BMA Information may have a detrimental effect on BMA’s business, commercial or financial affairs or place BMA at a disadvantage in relation to these affairs because disclosure would reveal sensitive commercial, business or financial information not otherwise available about:
·The amount of coal mined and prices paid for that coal
·Financial arrangements with and obligations to third party goods and service providers; and
·The success or otherwise of mines owned or operated by BMA,
and doing so could, in the circumstances, reasonably be expected to:
·Affect BMA’s dealings with other parties involved in trade with or investment in its mines
·Cause third party goods and service providers to lose confidence in the confidentially of their private agreements with BMA; and
·Put BMA at a competitive disadvantage.
44.On this basis, I am satisfied that disclosure of the BMA Information could reasonably be expected to:
·Prejudice the business, commercial or financial affairs of the entity, namely BMA; and
·Cause a public interest harm because it would disclose information concerning the business, commercial or financial affairs of a person, namely BMA, and could reasonably be expected to have an adverse effect on those affairs.”
The other factor referred to was the finding in paragraph 63 of the reasons in relation to the provisions of s 334 of the Mineral Resources Act 1989. This was dealt with at paragraph 63:
“On careful consideration of the information before me, it is my view that the public interest in non disclosure of the BMA information is significant, given that disclosure of it is prohibited under section 334 of the Act but this significance is reduced given that there is no mechanism for a private royalty recipient to obtain information regarding royalties payable to them.
The section prohibits publication of disclosure of such information, though this is subject to a number of qualifications.
The appellant does not contend that any of these apply, but rather points to these exceptions in the context of its contention that the Commissioner erred in affording “significant” weight to the consideration, which s 334 of the Mineral Resources Act 1989 gave rise to.
The final ground of appeal is based upon the cumulative effect of the preceding grounds, and it is said they constitute an error of law on the part of the Commissioner.
I do not accept that it has been shown that the Commissioner in undertaking the task required of her under section 47(3) of the Act has made an error of law. No such error has been demonstrated in my view.
None of the findings made by the Commissioner as to the weight to be afforded to any of the factors considered by her could be described as so unreasonable that it constitutes an error of law applying the Wednesbury test.
This is so whether the matter is considered cumulatively or individually in respect of each of the areas complained of in this regard.
In the result the appeal will be dismissed.
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