Queensland Law Society Inc v the Information Commission & SJ English

[1996] QSC 24

IN THE SUPREME COURT

OF QUEENSLAND
  No. 638 of 1995
[Queensland Law Society Inc v. The Information Commission & S.J. English]

BETWEEN:
  QUEENSLAND LAW SOCIETY INCORPORATED
  Applicant
AND:
  THE INFORMATION COMMISSIONER
  First Respondent
AND:
  STEPHEN JAMES ENGLISH

Second Respondent

No. 658 of 1995
[Queensland Law Society Inc v. The Information Commission & J. Wood]

BETWEEN:
  QUEENSLAND LAW SOCIETY INCORPORATED
  Applicant
AND:
  THE INFORMATION COMMISSIONER
  First Respondent
AND:
  JAMES WOODS

Second Respondent

JUDGMENT  -  DERRINGTON J.

Delivered:1 March 1996

CATCHWORDS:     Freedom of Information - Review of decision by Information Commissioner - Whether Queensland Law Society an "agency" as defined in Act - Whether established for a public purpose - Freedom of Information Act 1992, ss. 7, 8 and 9.

Counsel:Mr D. Jackson QC for the Applicant

Mr G. Sammon for the First Respondent

Mr C. Hampson QC and Ms D. Spence for the Respondent Woods
  Mr S. English on his own behalf

Solicitors:McCullough Robertson for the Applicant

P. Shoyer for the First Respondent
  Thynne and McCartney for the Respondent Woods

Hearing date :   9 February 1996
IN THE SUPREME COURT

OF QUEENSLAND
  No. 638 of 1995
[Queensland Law Society Inc v. The Information Commission & S.J. English]

BETWEEN:
  QUEENSLAND LAW SOCIETY INCORPORATED
  Applicant
AND:
  THE INFORMATION COMMISSIONER
  First Respondent
AND:
  STEPHEN JAMES ENGLISH

Second Respondent

No. 658 of 1995
[Queensland Law Society Inc v. The Information Commission & J. Wood]

BETWEEN:
  QUEENSLAND LAW SOCIETY INCORPORATED
  Applicant
AND:
  THE INFORMATION COMMISSIONER
  First Respondent
AND:
  JAMES WOODS

Second Respondent

JUDGMENT  -  DERRINGTON J.

Delivered 1 March 1996

These are applications by the Queensland Law Society Incorporated challenging the decision of The Information Commissioner that the Society is amenable to the provisions of the Freedom of Information Act 1992. They concern separate applications to the Commissioner made by the second respondent in each of the actions entitled above.
The definition of the issue is simple. It comes down to whether the Society is, within the meaning of s.9.(1)(a)(i) of the Act, a 'public authority' which is defined as "a body . . . that . . . is established for a public purpose by an enactment". It is not in issue that the society is established by an enactment, so that the issue is confined to whether it "is established for a public purpose" by it.
           Historically the Society was preceded by The Queensland Law Association, an unincorporated body, which carried out self regulation of the profession as well as the private advancement of its members.  However it had no legislative authority.  The legislature was apparently content to permit this state of affairs to meet its interest in the public welfare in this respect.  This former life of the Society is largely irrelevant to present issues except that it reveals the purpose of the legislation.  There was no reason for its introduction as a means of advancing the private functions of the antecedent body, but there was considerable advantage in formally defining by legislation the duties and cognate powers of the new body in respect of the public functions it was to perform.
           It is not significant that except for incorporation the Act created the Society with a form and functions in many respects much like those of its predecessor.  That was a sensible thing for it to do, but it is significant here that it also made a serious change in the public activities that had been left in the Society's hands.  It is not quite true to say that the new body was little more than a continuation of the former Association for the body was now incorporated and had a different name; and its constitution was established by the statute itself, with significant results for change.  The Society abandons reliance upon any argument that depends on its original non-statutory establishment as a private organisation.  This is a wise concession and it is important in the consideration of the authorities on the equivalent Victorian statutes which have a vital technical difference.  The Society also correctly concedes that in the application of the definition it is appropriate to consider how it is now established, and the exercise should not be confined to the original act of establishment.
           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 Minister's speech in presenting the bill explained that its purpose was to regulate the profession for what was clearly a public purpose, that is, the organisation and discipline of the profession for the public benefit.  However that conclusion is easily deduced from the nature of the contents of the Act itself, for the efficient organisation of the legal profession to enhance its professional services to society and its regulation and discipline to protect its clientele are both of important public concern.  Similarly, subsequent amendments, such as the establishment of a fidelity fund and a law claims insurance scheme, both organised and controlled by the Society within the prescription of the Act, are all of this nature.
           The matter is controversial because the Society also continues to engage in a range of private activity for the welfare and benefit of its members.  It provides a variety of services to individual members and it is also an instrument for private group activity such as lobbying for the private interests of its members and the advancement of their private views as to what is best for their profession and the law.  The Act accommodates this private side of the Society's functions by empowering it to make rules and by-laws defining its objects and regulating its good government towards the attainment of those objects.  It does not directly say that the Society has any private functions but this is implicit in the wide powers given under these provisions, though the rules and by-laws are required to have the approval of the Governor-in-Council and may be overridden by regulation made by the Governor-in-Council under s. 52.
           It is on this structure supporting the Society's private activity that the set of specific mandatory provisions concerning the Society's public activity and duties is superimposed.  These are spelt out in the Act itself rather than in the rules.  Some of them, such as regulation of the profession to exclude unqualified persons from practising as solicitors, are incidentally beneficial to its members as well as to the public but its purpose is essentially one of public benefit.
           This vesting of some public functions in the Society rather than an independent body has thus thrust it into this mixed role, and therein resides the spark for the present  controversy.  In anticipation of the competing submissions on its resolution, which go to the nature and degree of the public element behind the Society's establishment, it is desirable to review briefly its major public functions as imposed on it by the statute which establishes it.  Without being exhaustive, these include:-

•The administration of the provisions, including those relating to practising certificates, designed to exclude unqualified persons from the practice of law.

•The receipt of complaints from the public and the investigation and prosecution of members in matters of discipline.

•The administration of the fidelity fund and law claims schemes.

•The administration of the general trust accounts' contribution fund and grants fund.

Their short description should not disguise the serious quality or substantial quantity of the activities they ordain.
           This much is acknowledged by the Society.  However, it argues that the public purpose referred to in the definition of 'public authority' must be of a governmental nature and it is not enough that it be simply a purpose for the benefit of the public.  Its secondary argument is that in order to meet the terms of the definition, it is required that the public purpose in the establishment of the body be of a primary or fundamental or dominant quality.  These will be discussed more fully later.
           The respondents do not controvert the Society's claim that it performs a variety of private functions, but argues that the reason for its establishment in its present form by the Act is to discharge its regulatory functions for the public good;  and that, so far as it may be relevant, these functions are performed as an agency for the government, and so they are governmental.
           While the present issue is novel in Queensland, there have been analogous proceedings in Victoria and the Australian Capital Territory.  In the former, there have been two cases, Richards v. The Law Institute of Victoria (Judge Dixon, 13 August 1984, unreported) and Dickson v. The Law Institute of Victoria (1994) 6 VAR 237, and in the latter, just one, Brennan v. Law Society of the Australian Capital Territory (1984) 1 AAR 529; 6 ALD 428.
           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.  If it were necessary, that position is further consolidated by the provisions of the Acts Interpretation Act, but it is unnecessary to venture into this for, as it has already been noticed, the applicant acknowledges that in Queensland it is necessary, in searching for the relevant purpose, to see how the Law Society is presently constituted.  In any case, in Queensland the original incorporation of the Society by the enactment was directly associated with its public functions which have only been added to with further public functions by subsequent legislation.
           It is true that the Queensland Law Association as the predecessor of the Society had performed a number of the public functions which devolved upon the Society, and that none of these had been carried out as part of an agency of government.  This has no influence on the result here.  That the government was content to allow the profession's private association to perform this function in an informal way does not mean that there was not a strong public quality about it, nor that it was outside the interest of government.  It means only that it was convenient for the government to leave it for a time within the province of informal self-regulation.  When it decided to take up its responsibility by making statutory provision for a formal framework to regulate the profession, it did this by a compromise measure of a practical kind.  Instead of setting up a separate independent agency, it established an incorporated body formed substantially from the antecedent Association for the purpose of carrying out that public purpose as its agency.  It carried out this governmental duty by the familiar method of self-regulation through the formal structure that the Act had set up, at the same time engaging in its continuing private activities. 
           It is necessary only to review the contents of the Act to recognise that the incorporated body was established for this public purpose.  Their whole thrust is directed to it, and their inattention to the private affairs of the professional body accentuates this.  The private affairs were in substance unaffected by the legislation and could easily have continued as before without it.  These factors all lead to the conclusion that the establishment of the Society by the enactment was only for this public purpose, and that is precisely in conformity with the definition of 'public authority'.
           All of this appears on the face of the Queensland Law Society Act itself.  It is unnecessary to be concerned with the legislative history behind it or to its subsequent amendments, but, as it has been shown, all of these fortify this view.
           These views coincide with the reasoning in the leading Victorian authority, Re Dickson and the Law Institute of Victoria (supra), where it was said that if the Society there were established today, the purpose of that establishment would in a substantial measure plainly be public.  Having regard to the effects of the distinction between the positions in Victoria and Queensland, these remarks have direct application to the establishment of the Queensland Society as referred to in the definition of 'public authority'.
           The above analysis also coincides with the reasoning and result in the Australian Capital Territory case, Re Brennan and The Law Society of the A.C.T. (supra), where the relevant statutory and historical situation was analogous to that in Queensland.  That reasoning and result is consistent with the Victorian cases in principle after adjustment for the distinctions referred to.  I respectfully agree with it and would incorporate that reasoning into this judgment. 
           All of this is also conformable with the reasoning in Re Anti-Cancer Council of Victoria & Ors;  ex parte: The State Public Services' Federation (1992) 175 CLR 442. In that case the Council had a mixture of public and private functions but its existence and powers were derived from legislation which governed its membership and the composition of its committees. Its public service and activities which were related to public health were such that it had sufficient "public aspect" to constitute a corporation of the kind referred to in the expression, "public authorities, commissions or corporations".
           This establishes the proposition that although a body may engage in significant private activities, where it performs functions within the province of government which have a public nature such as by providing for public welfare, it is a public authority, at least in respect of those public functions.  That is directly applicable to the present case.  It is more emphatically so where the relevant definition speaks of the establishment of a body by an enactment for a public purpose and the enactment which incorporated and established the relevant body is clearly directed to providing for the performance of such public functions by that body.
           These matters all suggest strongly that its performance of its duties as an agency of government was the only reason why the Society was established by its Act, but on any argument it was certainly at least the dominant reason.  The Society's argument on this point must fail.
           There were some minor arguments which should be discussed.  First, attention was directed to the preamble of the Freedom of Information Act which describes it as applying to "documents held by government" and to "documents held by the government".  Moreover, the object of the Act is set out in s.4 which describes it as: "The object of this Act is to extend as far as possible the right of the community to have access to information held by Queensland government".  It is argued that this should lead to a reading down of the definition of "public authority" so that it extends only to bodies administered by the government. 
           The difficulty with this submission is that it depends upon a reading of the preamble and s.4 as though the word "government" is spelt with a capital 'G', whereas it is not so in either case.  In this context, the expression connotes government in its broad sense.  There is nothing to recommend that it should be limited to the formal institutions of the government rather than the former, and indeed the reference to "government" rather than "the . . . government" supports the broader meaning.
           Moreover, if there is any ambiguity about this, then the structure of the machinery of definition supports the above conclusion.  The expression 'public authority' is referred to in the definition of 'agency' which in turn is included in the definition of 'government'.  This has the effect of explaining and shaping the last mentioned term through the others, rather than the reverse.  It indicates that the broader meaning is intended.
           Consequently to the extent that the regulation of the profession is within the jurisdiction of government, and because the legislature has seen fit to take steps to exercise that jurisdiction through the agency of the Society, there is no reason why the public nature of the activities which it was established to undertake should not be regarded as governmental within the meaning of the Act.
           The Society also tried to deny its participation in the process of discipline of its wayward members, suggesting that this was specifically entrusted to the Statutory Committee by the Act.  No doubt this submission is designed to avoid the obvious implication flowing from this clearly public function.  However it is manifest that the statute does not intend any artificial excision of this function and transfer of it to an unrelated agency.  The formation of the specific constitution of that body, whose full title is the Statutory Committee of the Queensland Law Society Incorporated, is nothing more than the formalisation of that function of the Society by close intrusion of the government consistently with its use of it as an agency while still allowing a measure of self-regulation.  Indeed this is an example of the way in which this investment of formal jurisdiction as an agency of government has been achieved.  This is one of many reasons why the Society should be found to come within the scope of the definition of 'public authority'.
           This conclusion is consistent with what might be discerned to be the policy of the Freedom of Information legislation in respect of relevant matters.  Its remedial nature is directed towards opening to public scrutiny the information relating to public affairs held by agencies of the government.  This militates against a restrictive reading of the kind posited by the Society. 
           If its view were accepted, it would mean that, for example, the remedy provided by the Act would not be available to a member of the public legitimately seeking information from its records relating to the conduct of its administration of its public duty through the Statutory Committee, or the fidelity fund, or the like.  There is no reason why these should be exempt from the purview of the Act, except where the information relates to matters private to its members such as the disbursement of their funds;  but in that case the exemptions provided for by the Act would have full application and force.  Indeed, the existence of these safeguards supports the argument that the Act is intended to apply to organisations that perform both public and private functions.
           Although it is not necessary to this conclusion, nor has it had any operative effect, it is suitable to note that this view accords with the explanations offered on the presentation of the equivalent legislation in other legislatures antecedently to the Queensland Act.  Though it may not have been offered as part of any explanatory memorandum associated with the presentation of the bill in Queensland, such history of the legislation antecedently adopted in other places should be relevant in a case such as this in the same way that it would have been relevant if offered to the parliament in support of the bill.  Where reform legislation of this kind follows the principles and forms adopted elsewhere, it is not asking too much to expect that the history of such anterior legislation and the explanation of its scope and purpose would be known to the domestic legislators who followed such precedents.  The explanation for any departures from such precedents, or significant variation in the terminology used may qualify this view but, absent matters of this kind, with modern tools of communication and research, the broad sweep of principle behind such legislation should be expected to be identical as it appears progressively through similar legislatures.  Historical research then would support the wider view of the meaning of the relevant features.

           The overwhelming weight of factors indicated that the Society does come within the description of a 'public authority' within the meaning of the definition so that the provisions of the Act apply to it.
           The application to review the decision of the first respondent in each case is refused with costs.