Information Access Case Note: Abdelaziz v StateCover Mutual Ltd [2015] NSWCATAD 1

View full decisions here The Tribunal considered the language of the GIPA Act to be clear in assisting with a decision that a body is not an agency for the purposes of the GIPA Act  Abdelaziz v StateCover Mutual Ltd [2015] NSWCATAD 1

What you need to know

The Tribunal found that StateMutual Cover was not a public authority or agency within the meaning of the GIPA Act. The information held by StateMutual Cover was not government information under the GIPA Act and therefore Mr Abdelaziz did not have a statutory right under the GIPA Act to seek access to that information.

The Tribunal found that the literal meaning of the Legislature’s language is plain as to an “agency” for the purposes of the GIPA Act.

The decision provides authority for:

• defining an agency and public authority for the purposes of the GIPA Act;
• what is excluded by the definitions, and  
• the mechanisms to provide an inventory of additional agencies declared to be “agencies” for the purposes of the GIPA Act and GIPA regulations. 

Legislative background

Section 9 of the GIPA Act provides that a person who makes an application for access to government information has a legally enforceable right to be provided access unless there is an overriding public interest against the disclosure of the information.

Section 4 defines government information as information contained in the record of an agency, and agency as a public authority.

Clause 2(1)(b) of Schedule 4 of the GIPA Act defines a public authority as a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument.

Clause 2(3)(a) states that an incorporated company or association unless declared to be a public authority by the regulations, is not a public authority.

Clause 11 of the GIPA Regulation names four bodies as public authorities. 

Factual background

Mr Abdelaziz applied to StateCover Mutual for information it held in relation to a workers’ compensation claim. When no decision was made within the statutory time frame Mr Abdelaziz applied to the Tribunal on the basis of a deemed refusal under section 63 of the GIPA Act.

At the initial planning meeting StateCover Mutual raised an objection that they did not fall within the definition of agency under the GIPA Act, and therefore any information held was not government information that Mr Abdelaziz had a statutory right to access.

Mr Abdelaziz submitted that this argument by StateMutual Cover was unduly technical and although StateCover Mutual had not been declared by the regulation to be a public authority that this was not conclusive. Mr Abdelaziz referred to the object of the Act and submitted that it was the intention of the Parliament that the Act be interpreted and applied so as to further the object of the Act. Mr Abdelaziz also submitted that StateCover Mutual was created under the Workers Compensation Act and holds a licence under that Act.

The Tribunal in considering the question of whether StateCover Mutual is a public authority, observed that a search of the Australian Securities and Investments Commission records shows that StateCover Mutual is an unlisted public company limited by shares and registered in November 1999. It was also found to be a not for profit organisation.

The Tribunal observed that both parties agree that StateMutual Cover is an insurer approved by Australian Prudential Regulation Authority and holds a specialist insurer licence under the Workers Compensation Act.

The Tribunal considered the definitions of the GIPA Act and applied these to the facts in relation to whether the body (StateMutual Cover) was captured and therefore a public authority or agency holding government information.

The Tribunal found that the literal meaning of the Legislature’s language is plain as to an “agency” for the purposes of the GIPA Act.

The Tribunal found that StateMutual Cover was a body incorporated under the Corporations Act, but not established under a legislative instrument. StateMutual Cover held a licence under the Workers’ Compensation Act but that did not meet the definition of Clause 2(1)(b) of Schedule 4 of the GIPA Act – that is a body established or continued for a public purpose by or under a legislative instrument.

Therefore the Tribunal found that StateMutual Cover was not a public authority or agency within the meaning of the GIPA Act. The information held was therefore not government information under the GIPA Act.

Accordingly the statutory obligation to provide information did not apply to StateMutual Cover.

The Tribunal dismissed the application as it did not have the jurisdiction to deal with it.