Municipal Association of Victoria v VCAT

T

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8048 of 2002

MUNICIPAL ASSOCIATION OF VICTORIA	Plaintiff
v
THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL AND ANOR	Defendants

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JUDGE:	HABERSBERGER J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 and 20 MAY 2003
DATE OF JUDGMENT:	28 APRIL 2004
CASE MAY BE CITED AS:	MUNICIPAL ASSOCIATION OF VICTORIA v THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
MEDIUM NEUTRAL CITATION:	[2004] VSC 146

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Administrative Law – Freedom of Information – Whether the Municipal Association of Victoria was an agency within the meaning of s.5 of the Freedom of Information Act 1982 – Meaning of "prescribed authority" – Body corporate established for a public purpose by, or in accordance with, the provisions of an Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr S. Ricketson	Middletons
For the First Defendants	No appearance	Victorian Government Solicitor
For the Second Defendant	Mr J.D. Pizer	A.J. Macken & Co

HIS HONOUR:

The Proceeding

This is an application by originating motion, filed on 7 November 2002, pursuant to which the plaintiff, the Municipal Association Victoria ("MAV"), seeks declarations from the Court that the plaintiff is not an "agency" within the meaning of s.5 of the Freedom of Information Act 1982 ("the FOI Act"), and that the first defendant, the Victorian Civil and Administrative Tribunal ("VCAT"), does not have jurisdiction, under s.48 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") with respect to the application by the second defendant, Mr Peter Overington, for access to documents pursuant to s.13 of the FOI Act.

The Background to the Proceeding

By a letter dated 3 July 2002 Mr Overington wrote to MAV as follows:

"Please find attached 'Freedom of Information Request Form'. This request relates to the documents and internal working documents concerning the report 'Buloke Shire Council – Report to Department of Infrastructure – Local Government Division – 5 November 2001, prepared by Allan R. Holmes and Roger Male.'
I request a copy of all documents and internal working documents relating to this report including:
·the meeting between representatives of the Local Government Division of the Department of Infrastructure, yourself and Mr Allan Holmes in the first few weeks of October 2001.
·the meeting where the terms of reference for this enquiry were set.
·the meeting between Buloke Shire representatives, yourself and representatives of Local Government Division on 15 October 2001.
·all meetings between yourself and either of Messrs Holmes and Male concerning this enquiry.

I also request details of all payments, over the period 1 July 2001 to 30 June 2002, (including the reasons for such payments) made by the Municipal Association of Victoria to Freehills and Messrs Holmes, Male or any company in which they have an interest.
Further I request details of monies received by the Municipal Association of Victoria, over the period 1 July 2001 to 30 June 2002, from Buloke Shire Council and the Department of Infrastructure. This includes the reasons for the receipt.
I also request details of GST collected and paid in relation to these receipts and payments."

Mr Robert Spence, the Chief Executive Officer of MAV, replied to Mr Overington by a letter dated 12 August 2002. Mr Spence advised Mr Overington that the FOI Act did not apply to MAV, and that even if it did, the documents that he sought either did not exist or were exempt documents under the FOI Act because they were of a confidential nature (s.34(4) of the FOI Act), or their disclosure would be contrary to the public interest (s.35(1) of the FOI Act) or they attracted legal professional privilege (s.32(1) of the FOI Act).

On 2 September 2002, Mr Overington applied to VCAT, under s.50(2)(a) of the FOI Act, for a review of MAV’s decision. Ordinarily, s.51 of the FOI Act would have required Mr Overington to apply to the principal officer of MAV for an internal review of the decision to withhold documents. However, in this case, it was the principal officer of MAV who had made the decision to deny Mr Overington access to documents. On 11 October 2002, the first directions hearing was conducted in Mr Overington’s application. Deputy President Galvin set down for hearing "the preliminary issue" of whether MAV was "an agency for the purposes of the legislation". On 16 October VCAT sent a notice to the parties informing them that the matter had been listed for hearing on 6 December 2002. However, as previously indicated, MAV commenced this proceeding in this Court on 7 November 2002, and as a consequence the preliminary hearing did not take place.

The plaintiff relied on two affidavits of Mr Spence, sworn 7 November 2002 and 8 May 2003 respectively. Mr Spence was cross-examined on those affidavits. Apart from tendering some documents during cross-examination of Mr Spence, the second defendant led no evidence. There was no appearance for the first defendant at the hearing. I was informed that it was content to abide by any decision made.

The principal issues for determination in this proceeding were whether MAV was entitled to the declarations sought by it. It was common ground between the parties that the outcome of the second issue depended on the result of the first issue, namely whether MAV was an agency within the meaning of s.5of the FOI Act. In addition, the second defendant contended that if the Court found in favour of MAV on the principal issues, then a third issue would arise, namely whether the Court should nevertheless, as a matter of discretion, refuse to grant the declaratory relief sought.

The History of MAV

As will be seen, the history of MAV is of some importance. According to a document exhibited to Mr Spence's first affidavit, on 25 June 1879, at a meeting in Hamilton attended by delegates from Shires and Boroughs in the western district of the then colony of Victoria, it was unanimously resolved that it was "desirable that a Municipal Association be formed in Victoria". The minutes of the meeting recorded that the objects of the Association would be:

"to watch over and protect the interests rights and privileges of Municipal corporations; to take action in relation to any subject affecting Municipal bodies or Municipal legislation, and to promote the efficient carrying out of Municipal government throughout the Colony."

The minutes also record that rules were adopted at the meeting which dealt with matters such as membership of the Association; voting rights of members; membership of the Central Committee of the Association; election of office-bearers; the holding of meetings; the conduct of meetings; the provision of legal advice on matters of municipal government; and the forming of groups of municipal bodies on a convenient basis such as geographical proximity.

The 2001/02 Annual Report of MAV ("the Annual Report") stated that a meeting of local government councillors at the Melbourne Town Hall on 29 and 30 July 1879 "marked the birth" of MAV.

On 27 August 1907, 28 years later, the Association was incorporated by the Municipal Association Act 1907 ("the MAV Act"). The Preamble to the MAV Act stated as follows:

"WHEREAS an Association called the Municipal Association of Victoria was established in the year One thousand eight hundred and seventy-nine for the purpose of promoting the efficient carrying out of municipal government throughout the State of Victoria and of watching over and protecting the interests rights and privileges of municipal corporations: And whereas it is desirable that such Association should be empowered to establish and conduct a Municipal Officers Fidelity Guarantee Fund: And whereas it is desirable for the convenient and effectual carrying out of such purposes that the said Association should be incorporated."

In s.2 of the MAV Act it was provided that:

"the council of each municipality in Victoria from time to time may appoint a councillor to be the representative of such council and the representative so appointed shall constitute the Association."

Section 3(1) of the MAV Act stated that the rules of the Association in force at the commencement of that Act except in so far as they were inconsistent with any of the provisions of the MAV Act or any other Act would be the rules of MAV until revoked or altered by rules made pursuant to the MAV Act. Section 3(2) provided that new rules could be made by MAV "with the approval of the Governor in Council". Section 4 of the MAV Act empowered MAV "to establish a Municipal Officers Fidelity Guarantee Fund".

Mr Spence referred to debates in the Legislative Assembly and in the Legislative Council in 1906 and 1907 regarding the introduction of the MAV Act. I agree with Mr Spence that the debates suggest that the object of the MAV Act was to incorporate MAV so that it could guarantee the fidelity of municipal officers as well as officers of the Waterworks Trusts and Weights and Measures Unions, and so that it could arrange such insurance more economically and efficiently than the councils had previously been able to do. The Annual Report stated that the passing of the MAV Act in 1907 "anointed the MAV the official voice of local government in Victoria".

The Current Position of MAV

As a result of amendments to the MAV Act over the intervening 97 years, MAV's functions have broadened. In 1965, MAV became entitled to issue policies of accident insurance insuring councillors of a municipality or members of an Authority under the Water Act 1989 against accidents arising in the course of the performance of his or her functions (s.10B) and, in 1967, in relation to the insurance requirements of its members and "of any other bodies constituted under any Act for any public or local governing purpose", to do all such things as are ordinarily done by insurance agents and brokers, (now financial services licensees whose licence covers arranging contracts of insurance), and in particular, to receive commission for arranging those contracts of insurance (s.10C). In 1983, MAV was authorised to establish and keep a fund to be called the Local Government Investment Service Fund which could receive deposits from certain bodies including any council which was a member of MAV, for the purpose of investment (ss. 13 to 20). In 1993, MAV was required to establish and manage a mutual liability insurance scheme for the purpose of providing public liability and professional indemnity insurance (s.10CB). This scheme became known as the "Local Government Mutual Liability Insurance Scheme". Mr Spence noted in his second affidavit that the plaintiff has no statutory monopoly in relation to the insurance schemes and that it competes with "other private insurance companies" for this business.

According to the current rules of MAV, its objectives are to:

"(a)promote local government and improve community awareness of the capacity of local government throughout Victoria to act effectively and responsibly;
(b)promote through its advocacy rule appropriate powers, functions and responsibilities for local government having regard to the individual needs and characteristics of its individual members;
(c)act as the representative body of local government for the purpose of promoting effective inter-government co-operation;
(d)strengthen the Association's leadership role in local government in Victoria by focusing on:
(i)targeted advocacy to Governments and relevant organisations; and
(ii)continually improving systems for effective member liaison, communication and participation;

(e)identify the administrative requirements relating to various matters …" under the MAV Act.

It was said in the Annual Report that:

"The MAV is a not-for-profit association established to represent local government authorities around Victoria. The MAV also runs an insurance business – MAV Insurance. This business consists of two entities, Civic Mutual Plus (which provides public liability and professional indemnity insurance) and the Municipal Officers Fidelity Guarantee Fund. The MAV also manages grants received from federal and state governments for and on behalf of the local government sector."

In his second affidavit, Mr Spence stated that:
"… the Plaintiff does not receive any regular or recurrent funding from the State Government. The regular income of the Plaintiff arises from its membership subscriptions and insurance premiums. From time to time, the Plaintiff applies for and receives grants for specific purposes from both the State and Commonwealth Governments. From time to time, the Plaintiff also receives grants from private benevolent foundations."

However, a table in the Annual Report showed that grants received by MAV had increased from $570,441 in 1998, which represented 18.1% of the total MAV General Fund revenue, to $7,896,469 in 2002, which represented 69.8% of the total revenue. Mr Spence said that this significant increase was "basically caused by one grant". Nevertheless, apart from a decrease in 1999, the upward trend had been clear over the following three years. No doubt this could change.

Since its formation, MAV had, according to Mr Spence, focused its activities on representing, promoting and advancing the interests of Victorian local government councils. Membership of MAV was only open to such bodies and at the time of the hearing all of the 79 councils in Victoria were members. However, there was no requirement that the councils joined MAV and the number of members fluctuated from time to time. Mr Spence also pointed out that there was another body, the Victorian Local Governance Association, which played a similar representative role with respect to municipal councils, although this body had a smaller membership than the plaintiff.

Is MAV an "agency" for the purposes of the FOI Act?

Section 13(a) of the FOI Act provides that every person has a legally enforceable right to obtain access in accordance with the Act to "a document of an agency, other than an exempt document". Section 5(1) of the FOI Act defines the word "agency" to mean a "department, council or prescribed authority". It is common ground that MAV is not a department or a council. Therefore, the question is whether MAV falls within the scope of a "prescribed authority". In the same section of the FOI Act, the expression "prescribed authority" is defined to mean:

"(a)a body corporate established for a public purpose by, or in accordance with, the provisions of an Act, or a body unincorporate created by the Governor in Council or by a Minister, other than -
(i)an incorporated company or association;
(ii)a body that, under sub-section (2), is not to be taken to be a prescribed authority for the purposes of this Act;
(iii)a Royal Commission; or
…
(v)a school council;

(b)any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being –
(i)an incorporated company or association or unincorporated body which is supported directly or indirectly by government funds or other assistance or over which the State is in a position to exercise control; or
(ii)a body established by or under an Act of Parliament.

(c) …
(d) …"

Paragraph 5(1)(b) is not applicable, as the Freedom of Information Regulations 1999 do not declare the plaintiff to be a "prescribed authority". However, Dr Ricketson of counsel, who appeared for the plaintiff, based a submission, to which I will refer later, on its wording.

It follows that for MAV to be a "prescribed authority", and hence an "agency" for the purposes of the FOI Act, it must be shown that the plaintiff is a "a body corporate established for a public purpose by, or in accordance with, the provisions of an Act". Thus, the following three conditions must be satisfied:

(a) first, MAV must be a body corporate;
(b)secondly, it must have been established (as a body corporate) by, or in accordance with, the provisions of an Act; and
(c)thirdly, it must have been established (as a body corporate by an Act) for a public purpose.

A Body Corporate

Section 2 of the MAV Act relevantly provided that MAV "shall be a body corporate and by that name shall have perpetual succession and a common seal and be capable in law of suing and being sued." Accordingly, it was common ground that the first part of the definition of "prescribed authority" in the FOI Act was satisfied.

Established By, or In Accordance With, the Provisions of an Act

Mr Pizer of counsel, who appeared for the second defendant, submitted that it was irrelevant that MAV had previously been in existence as an unincorporated body. He submitted that it was still established by, or in accordance with, the provisions of the MAV Act and referred to the decisions of Re Brennan and Law Society of the Australian Capital Territory[1] ("Brennan") and Re English and Queensland Law Society Inc[2] ("English"), which was affirmed on appeal in Queensland Law Society Inc v Albietz[3] ("Albietz"). Dr Ricketson did not dispute that MAV was established, as a body corporate, by the provisions of the MAV Act in 1907. Therefore, it was common ground that the second condition was satisfied.
[1][1984] 1 AAR 529 at 537
[2](1995) 2 QAR 714 at [63]-[70]
[3][1996] 2 Qd R 580 at 581 per Derrngton J

Established for a Public Purpose

Four separate issues were identified concerning the meaning of this phrase. First, does "established" have a temporal dimension which limits the inquiry to the past legislation or can reference be made to its current form? Secondly, what is meant by a "purpose" of the body corporate? Thirdly, can a body be established for "a" public purpose if it is established for both public and private purposes? Fourthly, what is meant by a "public" purpose?

In respect of the first issue, both parties submitted that in order to understand the phrase "established for a public purpose" it was necessary to examine the provisions of the Act that established MAV as a body corporate.

According to the plaintiff, the relevant inquiry was whether, when MAV was established, this establishment was done "for a public purpose". Thus, Dr Ricketson submitted that it was irrelevant to inquire whether MAV now existed for a public purpose, as later changes made to the MAV Act might have given the body a public purpose that it did not have at the outset. He referred to the decision of his Honour Judge Strong, sitting as a Deputy President of the Administrative Appeals Tribunal of Victoria, in Re Dickson and the Law Institute of Victoria[4] ("Dickson"). In that case, the applicant submitted that in characterising the purposes of the Law Institute of Victoria it was relevant to have regard to that body’s current purposes under its incorporating Act, rather than those that appeared in the original legislation of 1917. Judge Strong, rejecting this argument, decided that to allow this approach would be to give the definition of "prescribed authority" a purposive construction. His Honour held that the adoption of such a purposive construction could only be justified where the ordinary and grammatical meaning of the phrase would give the statute a meaning which was obviously not intended. His Honour recognised that although a purposive construction might better promote the purpose or object underlining the Act, it could also lead to uncertainty. His Honour pointed out that:

"A body corporate might be an agency at some stage during its history, but at some other stage not. It would depend whether at the time the Freedom of Information request was made, the body corporate existed for a public purpose. Such uncertainty would be troublesome."[5]

Accordingly, his Honour confined himself to the 1917 Act for the purpose of determining whether the Law Institute was established for a public purpose.[6] Dr Ricketson adopted his Honour's reasoning.

[4](1994) 6 VAR 237

[5](1994) 6 VAR 237 at 242

[6]See also Richards v The Law Institute of Victoria ("Richards"), Unreported, County Court of Victoria, Judge Dixon, 13 August 1984 at p.2.

Whilst Mr Pizer agreed that determining the purpose of a body's establishment was largely an historical inquiry and that the purpose for which a body corporate has been established must be "gleaned principally from the Act" which established that body,[7] he submitted that the Court may, in appropriate circumstances, have regard to the work currently performed by the body in question to confirm the purpose for which it was established. He submitted that it would be an absurd result for a body which was now a purely private body to be subject to the FOI Act "in perpetuity" simply because when it was established, it was established for a public purpose. To that extent, he submitted that the Court should have regard to the current situation. But Mr Pizer did not argue that the converse was true. He accepted that if the body had been established for a private purpose and it then became a public body, it would not be within the definition of a "prescribed authority" because it would not have been "established for a public purpose."
[7]Richards, Unreported, County Court of Victoria, Judge Dixon, 13 August 1984 at p.4

Looking at the current situation as well as the past situation was the approach adopted in the Supreme Court of Queensland decisions of Albietz[8] and Local Government Association of Queensland Inc v Information Commissioner[9] ("Local Government Association of Queensland"). The reasoning, which depended on the language used in the Queensland legislation, was explained by Derrington J in the former case as follows:

"In conformity with the terms of the above definition it is necessary to refer to the enactment in order to consider whether the purpose behind its establishment of the Society in its present form and with its present functions was a public one within the meaning of the definition.
…
The Victorian cases are immediately distinguishable because in each it was held that it was necessary to refer to the purpose for which the Law Institute was originally formed by the legislation rather than to the purpose of its present establishment. That was held to be purely private. Consequently, the purpose behind powers and duties with which it was later invested for the benefit of the public was held to be irrelevant to the issue.
That is contrary to the position in Queensland where the definition of 'public authority' refers to the purpose for which the body 'is established', an expression which was referred to in the Victorian authorities as having a different result."

[8][1996] 2 Qd R 580 at 581-583 per Derrington J

[9](2001) 113 LGERA 1 at [12] per Atkinson J

Mr Pizer also submitted that it was not always necessary for the requisite public purpose to be set out in the enactment which establishes the body. The body may, for example, "be established with a constitution or a set of rules which demonstrate a public purpose, which it is unnecessary to repeat in the Act which establishes it", as held by Atkinson J in Local Government Association of Queensland[10]. Dr Ricketson submitted that the result in that case was wrong. He argued that the preposition "by" in the definition of "prescribed authority" indicated that there must be a link between the establishment and the purpose for which the body corporate is established "by … the Act" in question. As a matter of statutory interpretation, he submitted, the alleged "public purpose" should appear in the Act itself. However, Dr Ricketson did concede that the public purpose for which the body was established could be found in its establishing statute and to the extent that the statute refers to its rules, to those rules.
[10](2001) 113 LGERA 1 at [8]

In my opinion, in construing the expression "established for a public purpose", the Court is engaging in an historical exercise and should look at the Act which established the body, rather than at the current form of that legislation. I agree with the reason given in the Queensland authorities for distinguishing the Victorian decisions. The different wording in the FOI Act explains why a different approach has been, and in my opinion should be, followed in Victoria. It is, therefore, irrelevant what work is currently performed by the body in question. The focus should be on what it was set up to do by its establishing legislation. Further, I agree with counsel that, when looking at the establishing legislation, one can also take into account, when deciding the purposes for which a body has been established, documents such as the body's constitution or rules when they have been referred to in the Act itself. See, for example, the reference in s.3(1) of the MAV Act to the Association's rules in force at the commencement of the Act. It is not necessary for me to decide in this case whether the Court can also look at documents, such as a constitution or set of rules, which are not referred to in the Act, in order to ascertain the purpose for which the body was established.

There seemed to be no dispute that the second issue, of what is meant by a "purpose", directed "attention to the objects or aims for which a body corporate has been established as evidenced by the relevant powers, functions or duties conferred on it by Parliament."[11] In particular, what, if anything, did the Act say as to why the body was being established.
[11]English (1995) 2 QAR 714 at [74]

In respect of the third issue, Dr Ricketson submitted that it was not enough to examine whether the body corporate was established for a public purpose as an organisation could have any number of purposes, one of them being public in nature. He argued that if an organisation was found to have been "established for a public purpose" if it had only a single or minor public purpose, then many organisations might be wrongly brought within the scope of the FOI Act. For this reason, Dr Ricketson submitted that the "dominant" purpose for the body corporate's establishment must be "public" in nature. This was the approach adopted by Judge Dixon in Richards v The Law Institute of Victoria[12], a case involving an FOI request to the Law Institute of Victoria. Judge Dixon held that, in regard to the legislation establishing the Law Institute of Victoria, "at least one of the dominant purposes of that legislation should be seen to create a body of a public or governmental nature".[13]
[12]Unreported, County Court of Victoria, 13 August 1984
[13]Unreported, County Court of Victoria, 13 August 1984 at p.4

However, Mr Pizer submitted that if a body has been established for "a" public purpose, then it was irrelevant that the body had also been established for one or more private purposes.[14] He submitted that such an approach accorded with the philosophy of the FOI Act, which was to facilitate, rather than hinder, public access to documents.
[14]Brennan (1984) 1 AAR 529

In my opinion, a body is not "established for a public purpose" if only one or more of the minor purposes can be said to be a public purpose while the majority or more important purposes are of a private nature. It is a question of the overall nature of the body. If the, or one of the, dominant or major or most important or principal purposes of the legislation is public then one can characterise the body so established as one "established for a public purpose". This follows, I consider, from the decision of the High Court of Australia in Western Australia Turf Club v Federal Commissioner of Taxation ("WATC")[15] that the club was not a "public authority" within the meaning of the income tax legislation, even though, as Aickin J held, it had "certain exceptional powers to do what an ordinary private individual, or group of individuals, may not do some of which at least, if not all, may properly be described as statutory duties and the exercise of public functions."[16] After considering all aspects of the club and balancing the conflicting considerations and tendencies,[17] the Court held that the public functions of the club were "incidental to the private functions"[18] and therefore it could not be regarded as a public authority.
[15](1978) 139 CLR 288
[16](1978) 139 CLR 288 at 312
[17](1978) 139 CLR 288 at 311 per Aickin J. See also at 296 per Stephen J and Re Anti-Cancer Council of Victoria; Ex parte The State Public Services Federation (1992) 175 CLR 442 at 450 per the Court (Mason CJ, Brennan and Gaudron JJ)
[18](1978) 139 CLR 288 at 313 per Aickin J

Finally, in respect of the fourth issue, that of determining when a purpose will be a "public" purpose, the parties agreed that the FOI Act offered no assistance. Dr Ricketson submitted that historically, the notion of "public purposes" had been equated with government and its purposes. In Mersey Docks and Harbour Board Trustees v Cameron,[19] in relation to the rateability of land used for "public purposes", Lord Westbury stated that these "must be such as are required and created by the government of the country, and are therefore to be deemed part of the use and service of the Crown."[20] In a later case, Greig v University of Edinburgh[21], in respect of the same question, Lord Westbury described "public purposes" as "the purposes of the administration of the government of the country."[22] Dr Ricketson contrasted this approach with a possible wider meaning of "public" purpose in expressions such as "public park" and "public reserve". Dr Ricketson also referred to Worthing v Rowell[23], where Windeyer J stated that the words "public purposes" in s.52 of the Commonwealth Constitution expressed a "large and general idea".
[19](1865) 11 HLC Cas 443
[20](1865) 11 HLC Cas 443 at 505
[21](1866) LRI Sc & D 348.
[22](1866) LRI Sc & D 348 at 354.
[23](1970) 123 CLR 89 at 125

Dr Ricketson further submitted that a "public authority" will generally have some exceptional powers or capacities conferred on it that go beyond those of private individuals or bodies. He referred to the judgment of Rich J in Renmark Hotel Inc v Federal Commissioner of Taxation[24] ("Renmark"), where his Honour said:

"The characteristics of a public authority seem to be that it should carry on some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community and that it should have some governmental authority to do so. In s.23(d) it is made clear that it must be constituted under a State Act. Coercive powers over the individual are given to many governmental authorities which could be called public authorities, but it is not an essential part of a conception of a public authority that it should have coercive powers, whether of an administrative or a legislative character. It may, however, be an essential characteristic of the conception that it should have exceptional powers or authority, for instance a tramway board or trust has the exceptional authority of taking its trams down a public street. A water authority may lay its water mains, a lighting authority may do the like. Some exceptional powers of doing what an ordinary private individual may not do are generally found in any body which we would describe as a public authority. The words 'public utility' have a wider significance, embracing public utilities carried on for profit by private enterprise."

[24](1949) 79 CLR 11 at 18 per Rich J

Three other considerations were referred to by Dr Ricketson. First, he submitted that it needed to be borne in mind that a body which met the definition of a "prescribed authority" fell within the broader genus of "agency". "Agency" and "agent", he submitted, in their ordinary meaning had the connotation of acting or working on someone else's behalf. In the present context, this meant acting on behalf of the public, or some segment of the public. On the other hand, I do not understand why it should not mean acting on behalf of local government bodies.

Secondly, Dr Ricketson submitted that because of the wording of paragraph (b) of the definition of "prescribed authority" (see paragraph 16 above), which indicated that the receipt of government funds or control by the State was a sufficient but not a necessary condition, it might be more difficult to conclude that a body has been "established for a public purpose" where that body lacked government funding or control. However, Mr Pizer submitted that this qualification did not arise because even if control of MAV by the State was lacking, it did receive government funding.

Thirdly, Dr Ricketson submitted that, in determining whether a body was one "established for a public purpose", the proper approach was to consider this question in the light of its own legislation and not to allow the inquiry to be coloured by reference to the kinds of purposes that might be established for its constituent bodies or members.

Mr Pizer submitted that the word "public" could have a range of meanings, depending upon the context in which it appears. He submitted that at the very least, the word "public" imposes a requirement that the purpose of establishing the body must be one for the benefit of members of the community generally, or a substantial segment of them.[25]Mr Pizer highlighted a passage from the Second Reading Speech to the FOI Act of the then Premier Mr John Cain, which was as follows:

"The term 'public purposes' means government purposes, and a body established for public purposes is one that carries on an undertaking of a public nature for the benefit of the community or of some sectional or geographical division of the community, with governmental authority to do so, and with the support of government finance. A body which conducts itself for private profit is not a public authority."[26]
[25]English (1995) 2 QAR 714 at 735; affirmed on appeal: Albietz [1996] 2 Qd R 580
[26]Parliamentary Debates, Legislative Assembly, Volume 367 at 1063-1064

Mr Pizer noted that this passage from the Second Reading Speech relied heavily on the first part of the previously quoted passage from the judgment of Rich J in Renmark and that it would have been open for the Minister to have also relied on the next part of his Honour's judgment concerning "exceptional powers", but that he did not do so. Mr Pizer therefore submitted that the notion of "exceptional powers" was not one which should be applied to "a public purpose" within the meaning of the FOI Act. Mr Pizer highlighted that a public funded and private funded university could both carry on the same functions and have the same public benefit, with only the public funded university being subject to the FOI Act. It was therefore not necessary for a body to exercise "exceptional" powers which could not be exercised by a private body for it to be regarded as a "public" body.

In my opinion, whilst it is neither desirable nor feasible to attempt to set out a precise or exhaustive definition of what is meant by a "public" purpose, it is clear that its meaning is not as narrow as the purely "governmental" purpose stated in the English decisions referred to by Dr Ricketson. That concept is itself not easily defined, for as Windeyer J pointed out in Ex parte Professional Engineers' Association:

"The functions which government in fact undertakes vary with the time in history and the country concerned and the nature of its polity."[27]

[27](1959) 107 CLR 208 at 274-275

But even if the meaning of "public" purpose were limited to something in the nature of governmental activity, I consider that the 1907 legislation itself shows that municipal councils were then recognised in Australia as a third level of government – federal, state and local. This view is now enshrined in s.74A(1) of the Constitution Act 1975 which talks of local government as "a distinct and essential tier of government" with democratically elected councils having functions and powers for "the peace, order and good government of each municipal district". In WATC[28] Barwick CJ held that the appellant was not "a public authority" because it had "no function of a public or governmental nature". In the same case, both Stephen J[29] and Aickin J[30] referred to a similar statement by Isaacs ACJ reported as having been made in the course of argument in Incorporated Council of Law Reporting (Qld) v Federal Commisisoner of Taxation[31]. As well as referring to governmental activity, it seems to me, therefore, that a "public" purpose involves some purpose for the benefit of the community, or a substantial segment of the community. As Dr Ricketson pointed out, this concept accords with the Shorter Oxford English Dictionary definition of the adjective "public" as "1. Pertaining to the people of a community or locality … Of or pertaining to the people as a whole; common, national popular ... 2. Done or made by or on behalf of the community as a whole; representing the community."
[28](1978) 139 CLR 288 at 290
[29](1978) 139 CLR 288 at 292
[30](1978) 139 CLR 288 at 309
[31](1924) 34 CLR 580 at 585

However, I do not accept Dr Ricketson's submission that in order for a body to be established for a public purpose it must have some exceptional powers or capacities conferred on it that go beyond those of private individuals or bodies. As Stephen J pointed out in WATC, what Rich J held in Renmark was that:

"The possession of coercive powers were not essential but the possession of exceptional powers, not possessed by an ordinary private individual, might be."[32]
[32](1978) 139 CLR 288 at 292

The presence of such powers or capacities may be a helpful indication, but, in my opinion, their absence is not decisive.
Was MAV Established for a Public Purpose?

I turn then to the facts of this particular case. Mr Pizer submitted that the Preamble to the 1907 MAV Act clearly and unambiguously supported the conclusion that MAV was established for a public purpose. He submitted that the first purpose contained in the Preamble, that of promoting the efficient carrying out of municipal government throughout the State of Victoria, was unquestionably a public purpose. He referred me to the decision of Atkinson J in Local Government Association of Queensland[33], where her Honour held that, in the context of a freedom of information application, the Local Government Association of Queensland Inc was a body established for a public purpose. In reaching this conclusion, her Honour placed particular emphasis on the following objects, as set out in the Local Government Association of Queensland Inc’s Constitution and Rules:

"These objects disclose the public purposes for which the Local Government Association was formed particularly in promoting the efficient carrying out of local government throughout Queensland and in undertaking or promoting any activity which the Executive determines to be for the benefit and/or interest of local governments, all of whom were themselves established for a public purpose."[34]

Thus, in coming to the conclusion that the Local Government Association of Queensland Inc was established for a public purpose, her Honour relied on the very same object which also appears in the Preamble to the MAV Act. Her Honour also held that "it would seem to be almost inevitable that an association whose only members are bodies established for public purposes would itself be established for a public purpose"[35].

[33](2001) 113 LGERA 1

[34](2001) 113 LGERA 1 at [18]

[35](2001) 113 LGERA 1 at [17]

The second purpose of the Preamble, that of watching over and protecting the interests, rights and privileges of municipal corporations, was, according to Mr Pizer, a public purpose because if such interests, rights and benefits were protected, then the members of the public in the relevant municipal districts would clearly benefit (whether it be by way of improved or increased services or by way of reduced rates). Local councils, like governments at all levels, "act, or at all events are constitutionally required to act, in the public interest."[36] Therefore, MAV, by acting on behalf of local councils, indirectly acts on behalf of the public.
[36]Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191 per McHugh JA

The third purpose of the Preamble was to empower MAV to establish and conduct a Municipal Officers Fidelity Guarantee Fund. Section 4 of the MAV Act provided for the establishment of such a fund. Counsel for the second defendant submitted that this purpose was also a public purpose because such a fund would lead to considerable cost savings for local councils, which would then benefit those members of the public in the relevant municipal districts.

Dr Ricketson submitted that there was nothing in the Preamble to point to its purposes being of a public character. The body established by the MAV Act was simply an organisation of local government units concerned with promoting their efficient operations and protecting their interests and privileges. He submitted that this was a purpose that could apply equally to any association of persons engaged in a particular occupation or sector of activity, public or private. Dr Ricketson also submitted that the expression a body corporate "established for a public purpose" must indicate a body that is acting on behalf of the public, or some segment of the public. He submitted that this could not be said to be true of an organisation that acted only on behalf of a limited group, being, in the present case, municipal councils. These representational responsibilities and functions were not "public" in character, but sectional, being limited to the interests and well being of the constituent members. Further, Dr Ricketson submitted that although it could be accepted that municipal councils themselves were established for a public purpose, this did not necessarily lead to the conclusion that MAV was established for a public purpose. Simply because a body, such as MAV, represented local government entities which had some public purpose or produced a public benefit did not necessarily mean that the body that was established for those purposes, particularly when there was nothing exceptional about its functions or powers. Dr Ricketson argued that there was nothing exceptional to be found in the powers or functions conferred upon MAV, even if there were some suggestion of a public function or public character.

Dr Ricketson submitted that the prime motivating reason for the 1907 legislation was to enable the Association to establish the Fidelity Guarantee Fund. It was said that it was hard to see why incorporation was needed but for this particular purpose. Further, Dr Ricketson submitted that the purpose of establishing the Fidelity Guarantee Fund was to allow such insurance to be offered at a more reasonable level than had previously been possible under private insurance arrangements. There was nothing inherently "public" about that activity, other than the character of the particular client base. However, in Re City of Launceston and Local Authorities Superannuation Board[37] the former Administrative Appeal Tribunal in Victoria held that the Local Authorities Superannuation Board’s function, of providing superannuation services for employees, was essentially private in nature. This was despite the fact that the employees worked for public instrumentalities, which themselves served a public purpose. Mr Pizer submitted that this case could be distinguished from the present circumstances as there was a difference between providing superannuation services for employees, which only benefited employees of local councils, and watching over and protecting the interests, rights and privileges of municipal corporations, including protecting them from the problems caused by dishonest employees, which, if done effectively and efficiently, also benefited the wider public.
[37](1989) 3 VAR 137

For these reasons, Dr Ricketson submitted that the purposes in the Preamble did not have a public element to them, or at least not a dominant public element. Thus, they were not sufficient to make MAV a body "established for a public purpose". An examination of the Preamble, according to Dr Ricketson, revealed that only the first purpose of the Preamble could be said to have anything of a "public" nature and it was by no means a dominant purpose. It was therefore incorrect to characterise the plaintiff’s establishment by the MAV Act as a "public" one.

I reject the plaintiff's submissions. It seems to me that the purposes set out in the Preamble to the MAV Act clearly convey the idea that this body, whose members consisted of bodies with a public and governmental role, was established for "public purposes". “Promoting the efficient carrying out of municipal government” was, in my opinion, a “public” purpose. So too was “watching over and protecting the interests rights and privileges of municipal corporations.” Establishing and conducting a Municipal Officers Fidelity Guarantee Fund was perhaps less so, although it nevertheless still had a public aspect to it. Even if these three purposes arguably could have been pursued by a private body, the identity of MAV’s members confirmed that it should be regarded as a body “established for a public purpose”. I agree with Mr Pizer's submission that it is not a mistake to have regard to the identity of a body's members when determining whether it was established for a public purpose. A body is controlled by its members. MAV's only members were local councils and as such, MAV was necessarily controlled by bodies established for a public purpose. As a "peak body" for local government, MAV acted with the authority of, and in the interests of, local government. Accordingly, I respectfully agree with the approach adopted by Atkinson J in Local Government Association of Queensland[38].
[38](2001) 113 LGERA 1 at [17] and [18]

If the third purpose set out in the Preamble had been on its own, the conclusion I have reached may well have been different. But I do not need to decide that point because when one looks at the Preamble as a whole, it seems to me to be quite clear that MAV was "established for a public purpose".

In case I am wrong in my view that one does not look at the current activities of the body in question to decide whether it was "established for a public purpose", I should briefly consider the current position of MAV. As previously stated, amendments to the MAV Act have given MAV wider powers to engage in the insurance and investment business. Dr Ricketson argued that these powers and functions were similar to those found in private institutions. They contained nothing suggestive of a "public purpose" apart from the fact that the principal source of business was from local government bodies which themselves have "public purposes". For example, there was no suggestion that any of these services should be provided on other than a commercial basis. Therefore, the plaintiff submitted that the public nature of the membership should not colour the essentially private character of these insurance activities as carried on by the plaintiff. Furthermore, the plaintiff submitted that the control of the State over its activities was minimal and that it competed equally with other insurance and financial entities. There was no statutory monopoly. Dr Ricketson submitted that the plaintiff operated independently of the State Government, received no regular funding from it and acted as a critic of government policies, particularly as they affected the interests of local government. It was similar to an industry or professional peak body.

In considering the current position of MAV, Mr Pizer submitted that MAV does not operate independently of government. He argued that it was controlled by, and acted on behalf of, local government and that it was funded by local government and by grants from the State Government and the Commonwealth Government.

Whilst I acknowledge that MAV would now seem to be undertaking roles which could also be performed by bodies in the private sector, it still seems to me that MAV is a body established "for a public purpose". It is still a body whose only members are local government bodies acting in the public interest. And part of the work is directed towards community improvements.

For example, during cross-examination of Mr Spence, Mr Pizer raised the issue of MAV’s log of claims which was served on political parties during the last State election. He argued that this showed that part of the work performed by MAV was of a "public" nature and benefit to the community. The log of claims sought:

"increased funding for councils to maintain and improve ageing infrastructure, such as local roads, bridges, drains, parks and buildings that have suffered due to the limited ability of councils to raise funds as a result of compulsory rate cuts and subsequent rate capping in the 1990s."

Mr Pizer suggested to Mr Spence that if increased funding were made available for councils to maintain and improve infrastructure such as local roads and bridges and drains, the community would benefit from such improvements. In addition, Mr Pizer submitted that the work MAV performed was for the benefit of the community. He referred to the assertion in the Annual Report, which Mr Spence confirmed, that MAV lobbying had resulted in increased funding being provided for home and community care, preschools and public libraries.

I am therefore of the view that, even if I had decided that I should look at the current form of the Act which established MAV and the work which it is currently performing, I would still conclude that MAV is a body "established for a public purpose".

By way of additional arguments, Mr Pizer submitted that s.3(2) of the MAV Act, which provided that MAV might, with the approval of the Governor-in-Council, make rules for a number of matters including all matters affecting the management of MAV not inconsistent with the laws of Victoria, was a supporting factor. Such a provision was, he submitted, the hallmark of a public statutory corporation established for a public purpose. It was not typically a requirement imposed on private bodies. However, according to Dr Ricketson, the need for a body to obtain the approval of the Governor-in-Council of its rules was a feature shared by a number of bodies, including "declared" collecting societies under the Copyright Act 1968, yet this did not render any of them a body established for a public purpose. Whilst I agree that a private body does not generally have imposed on it a statutory requirement that it obtain the approval of the Governor-in-Council of its rules, I do not consider that such a provision inevitably results in the body being regarded as a public body. The presence of such a requirement may be a helpful indication, but it is not conclusive.

Counsel for the second defendant submitted further legislative definitions, apart from the MAV Act itself, to support the conclusion that MAV was established by an Act for a "public purpose". For example, the Public Sector Management and Employment Act 1998 ("the PSME Act") provides in s.5(1) that, for the purposes of that Act, a public authority is a "body, whether corporate or unincorporate, that is established by or under an Act for a public purpose." Section 5(3) of the PSME Act provides that a "public authority" does not include:

"(a)a Council within the meaning of, or any other body or committee established under, the Local Government Act 1989; or
(b)the Municipal Association of Victoria established under the Municipal Association Act 1907; or
(c)…"

According to Mr Pizer, the express exclusion of MAV from the scope of the PSME Act provided support for the conclusion that MAV was a body established by or under an Act for a public purpose. He submitted that the express exclusion was based on the assumption that otherwise MAV was a body established by an Act for a public purpose and would therefore have come within the definition of a "public authority".

Mr Pizer further submitted that the public, rather than private, nature of MAV was demonstrated by s.47(1) of the Duties Act 2000, headed "Government Bodies and Diplomats", which provides that no duty is chargeable under Chapter 2 of that Act in respect of a transfer of dutiable property to a variety of bodies including:

"(b)a Council within the meaning of the Local Government Act 1989; or

(c) the Municipal Association of Victoria …"

Dr Ricketson submitted that these exclusions were only included out of an abundance of caution and to avoid uncertainty and that one should not read too much into them. I agree that one cannot really construe the expression "a body corporate established for a public purpose" in the FOI Act by reference to definitions in other legislation. Nevertheless, the express exclusion of MAV from the definition of a "public authority" in the PSME Act is certainly consistent with the second defendant's submission that MAV was a body "established for a public purpose".

By way of contrast, the plaintiff referred to a letter, exhibited to Mr Spence’s second affidavit, from the Executive Manager of the Treasury Corporation of Victoria to Mr Spence, which stated that the Department of Treasury and Finance was of the view that as MAV was not a "public authority" under the Treasury Corporation of Victoria Act 1992 ("the TCV Act") it did not qualify to become a "participating authority" within the meaning of the TCV Act. Dr Ricketson submitted that this provided further support for the independent relationship between MAV and the State Government. However, Mr Pizer submitted that the definition of "public authority" in s.3 of the TCV Act was in different terms to the definition of "prescribed authority" in the FOI Act. There was no reference to the body being "established for a public purpose" in any of the different meanings of a "public authority" under the TCV Act. Therefore, he submitted, the comparison was rather pointless.

Further, Mr Pizer submitted that, in any event, MAV is a "public authority" under the TCV Act because one of the meanings of a "public authority" is "(d) a body established by an Act that is financed wholly or in part from public money." According to Mr Pizer, MAV was "in part" funded by subscriptions from local councils and grants from the State and Commonwealth Governments and therefore, MAV’s funding was from a public source. Whilst Mr Pizer's response appears to be valid, it is not necessary for me to decide this point of construction of the TCV Act.

Mr Pizer referred to the Whistleblowers Protection Act 2001 ("the WP Act") and the Information Privacy Act 2000 ("the IP Act") as support for the additional proposition that MAV represents to the community that it is a public body. During cross-examination of Mr Spence, Mr Pizer referred to the following statement on MAV’s website:

"Whistleblower Protection Procedures
The Whistleblowers Protection Act 2001 requires the MAV to establish procedures. The procedures must facilitate the making of disclosures under Part 2 of the Act, detail the system for investigations of disclosed matters and for the protection of persons from reprisals by the public body or any member, officer or employee of the public body because of disclosures. The procedures must comply with the Act and the Ombudsmans’s guidelines."

It was put to Mr Spence that the only meaning of a "public body" in s.3(1) of the WP Act which could apply to MAV and require it to establish procedures was:

"(d)a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose."

Mr Spence denied the suggestion that because its procedures complied with the WP Act it therefore confirmed that MAV was a "public body". Rather, Mr Spence indicated that, without legal advice, MAV had taken a "philosophical" commitment to the legislation and complied with its principles. This statement gained some support from the opening words of another document, entitled "MAV Whistleblowers' Procedures", to which Mr Spence was taken. Those words were that MAV was "committed to the aims and objectives" of the WP Act. Dr Ricketson submitted that MAV's commitment to compliance with the WP Act had no bearing on its status as a "private body" and any connection to the FOI Act, as the principles within the legislation applied also to private organisations. I accept Mr Spence's evidence.

Similar arguments were advanced with respect to the IP Act. The Annual Report stated that:

"The MAV is a public body that collects, uses and discloses personal information, and is therefore required to comply with the Information Privacy Act 2000 (Vic) and information privacy principles found therein."

It was put to Mr Spence that the only reason why MAV regarded itself as bound by the IP Act was because pursuant to s.9(1)(e) of the IP Act, it applied to "a body established or appointed for a public purpose by or under an Act." However, I am not prepared to find that this statement is the result of any considered view of the status of MAV under the IP Act. In any event, the question for my determination is concerned not with the construction of the WP Act or the IP Act, but with the FOI Act.

Mr Pizer also looked to the Rules of MAV to support his argument that MAV was established for a "public purpose". He submitted that the objectives contained in MAV's Rules demonstrated that MAV's work was clearly public rather than private in nature. On the other hand, Dr Ricketson cited these Rules as a further example of the lack of "public purpose", submitting that they highlighted the representational and promotional role currently played by MAV and its educational and advocacy objectives. According to the plaintiff, these functions do not evidence a "public" nature but are limited to the constituent members’ interests and are purposes that could similarly apply to any peak organisation in any sector.

Finally, Mr Pizer relied on the evidence of Mr Spence that MAV does not pay, and has never paid, income tax. However, Mr Pizer agreed that there could be many reasons to be found in the complicated income tax legislation to explain why a body did not pay income tax. Therefore, it seems to me that the limited argument about the non-payment of income tax did not take the matter further.

Mr Pizer submitted that all of these additional matters showed that, as it operated today, MAV satisfied all of the requirements of a body "established for public purposes" as listed in the Second Reading Speech. He submitted that the work that MAV was established to performed, and in fact performs, was of a public nature; that the work was performed for the benefit of the community; that MAV had "governmental" authority to perform that work because it was controlled by, and acted with the authority of, local government; that MAV performed that work with the support of government finance; and that MAV did not conduct itself for private profit. I agree with that submission.

In summary, I have concluded that, as MAV was established for the principal or dominant purposes of "promoting the efficient carrying out of municipal government throughout the State of Victoria and of watching over and protecting the interests rights and privileges of municipal corporations", as well as for the purpose of establishing and conducting a Municipal Officers Fidelity Guarantee Fund, it was "established for a public purpose". Therefore, the third condition of a "prescribed authority" is satisfied. In my opinion, MAV is an agency for the purposes of the FOI Act and the first declaration sought by the plaintiff will, accordingly, be refused.

The Jurisdiction of VCAT

As previously stated, it is common ground that if MAV is held to be an agency for the purposes of the FOI Act, then s.48 of the VCAT Act and s.50(2)(a) of the FOI Act confer jurisdiction on VCAT to hear and determine Mr Overington's application. I need say nothing more, therefore, about the second declaration sought by the plaintiff which will also be refused.

The Court’s Discretion to Grant Declaratory Relief

Although it is not strictly necessary to consider this question because the plaintiff's application for declaratory relief has failed, I do want to say something about one of the second defendant's arguments in support of the submission that the Court ought to decline to grant such relief, even if the plaintiff had been successful. Mr Pizer submitted that it is clear that the Court’s power to grant declaratory relief is discretionary and that one factor influencing the exercise of this discretion is the availability of some other equally efficacious remedy or alternative forum for the determination of the issue in question.[39] Mr Pizer submitted that VCAT was the appropriate forum, at least in the first instance, to determine the question of whether MAV was an agency for the purposes of the FOI Act and that the plaintiff should not have pre-empted the outcome of the VCAT application by commencing this proceeding in the Supreme Court. There is much to be said, in my opinion, for the submission that this matter should have been allowed to run its course in VCAT. It may have ended there, but if either party was not satisfied with the result, then it would have been open to them to have sought leave to appeal, on a question of law, to this Court pursuant to s.148(1) of the VCAT Act. I understand that, because it has received a number of FOI requests, MAV viewed this proceeding as a test case to determine its status under the FOI Act. It submitted that there was considerable public importance attached to the determination of the issues raised in this proceeding. Nevertheless, I am not persuaded that it was appropriate for MAV to commence this proceeding. However, in the result, it is unnecessary to consider this matter further. It is also unnecessary to consider the second defendant's submission that, for similar reasons, the plaintiff should pay his costs, regardless of the outcome of the proceeding.
[39]Liverpool and London and Globe Insurance v JW DeavesPty Ltd [1971] 2 NSWLR 131 at 135.

Order

Subject to hearing from counsel, the order I would propose making is that the originating motion be dismissed with costs.

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Citations

Municipal Association of Victoria v VCAT [2004] VSC 146

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Renmark Hotel Inc v Federal Commissioner of Taxation [1949] HCA 7

Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation [1992] HCA 53

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28 April 2004