Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGann v Superannuation Administration Corporation [2017] NSWCATAD 239 Hearing dates: 24 May 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The application is dismissed. Catchwords: ADMINISTRATIVE LAW – government information – jurisdiction of Tribunal – definition of public authority Legislation Cited: Civil and Administrative Tribunal Act 2013 Corporations Act 2001 Evidence Act 1995 Police Regulation (Superannuation) Act 1906 State Owned Corporations Act 1989 Superannuation Administration Act 1987 Superannuation Administration Corporation (Pillar) (Authorised Transaction) Act 2016 Statute Law Miscellaneous Provisions Act 2017. Category: Principal judgment Parties: M P McGann (Applicant) Superannuation Administration Corporation trading as Pillar Administration NSW (Respondent) Representation: Counsel: Mr B Koch (Respondent) Solicitors: Lander and Rogers (Respondent) File Number(s): 2017/00015997 reasons for decision 1. In these proceedings the applicant seeks review of a decision made by the respondent, the Superannuation Administration Corporation trading as Pillar Administration (Pillar), under the Government Information (Public Access) Act 2009 ("the GIPA Act"), to refuse the applicant access to information held by it. 2. The main issues raised before the Tribunal were: 1. whether legal professional privilege (client legal privilege) applied to the documents, and if so, whether that privilege had been lost pursuant to s 125 of the Evidence Act 1995. 2. Whether the search conducted by Pillar was sufficient. 1. Pillar also raised a preliminary issue relating to jurisdiction, concerning whether it is an "agency" to which the GIPA Act applies. Background 1. The applicant, Mr McGann, is a former member of the Police Superannuation Scheme (PSS) which is a statutory defined benefit scheme established under the Police Regulation (Superannuation) Act 1906 ("the PRS Act"). He retired from the NSW Police Force in 1991. 2. The scheme is managed by the SAS Trustee Corporation (STC) which is a statutory body established by the Superannuation Administration Act 1987. It is the Trustee for the Police Superannuation Scheme. 3. Mr McGann stated that, until 2009, he was unaware that he could be eligible for a pension in relation to injuries he had incurred while in the Police Force. In 2012 Mr McGann applied for a retrospective certificate of incapacity under s 10(B)(2) of the PRS Act. Section 10B(1) and (2) provided at that time and still provide as follows: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. …" 1. On 20 May 2013 the Police Superannuation Advisory Committee declined the application for a certificate. Mr McGann disputed that decision. The decision was confirmed on 17 August 2016 by the Member Services Committee of STC. 2. In September 2016 Mr McGann lodged an application with the respondent under the GIPA Act for: "a complete copy of my file relating to my application for a certificate pursuant to section 10(B) of the Police Regulation (Superannuation) Act 1906 including correspondence, medical reports and submissions." 1. Pillar determined the application by releasing the majority of the information held with redactions, but refused access to certain information on the ground that it would disclose information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege). It did not waive the privilege. 2. Mr McGann applied to the Information Privacy Commission on 2 November 2016 for review of Pillar's decision. 3. The Information Commissioner issued a recommendation on 16 December 2016 that Pillar make a new decision by way of internal review, having regard to the matters in her report. 4. Pillar conducted an internal review and issued its internal review decision on 20 January 2017. It released some of the information previously withheld with redactions, but determined not to release the remainder. Whether Pillar is an "agency" 1. Pillar now submits that it ceased to be an agency to which the GIPA Act applies on 5 December 2016. Prior to that date it was a statutory State owned corporation (the Superannuation Administration Corporation, trading as Pillar Administration) established under the Superannuation Administration Authority Corporatisation Act 1999. On 19 May 2016 the Superannuation Administration Corporation (Pillar) (Authorised Transaction) Act 2016 ("the SACPAT Act") commenced. The SACPAT Act authorised the transfer of Pillar assets to the private sector or to any public sector agency, (s4). 2. In unchallenged evidence given by Mr Allan Parapuram, General Counsel of STC, it was stated that Pillar was sold to Mercer (Australia) Pty Ltd and that prior to the sale, Pillar was converted to a company called Pillar Administration Pty Ltd and registered with ASIC under the Corporations Act 2001 on 5 December 2016. The sale was completed on 7 December 2016. A search of the Australian Securities and Investments Commission database indicates that Pillar Administration Pty Ltd was registered on 5 December 2016 and is now named Mercer Administration Services (Australia) Pty Ltd. 3. Mr Parapuram stated that there is currently an agreement between Pillar (or Mercer) and STC which requires Pillar to maintain the membership records of PSS members on behalf of STC, and handle any requests made by PSS members for access under the GIPA Act for information in those records. The agreement was not in evidence as it was said to be confidential. 4. On this evidence I find that while Pillar was an 'agency' within the meaning of the GIPA Act when it received and determined Mr McGann's application, it had ceased to be such an agency by the time it received the Information Commissioner's report and conducted its internal review. 5. Section 100 of the GIPA Act provides: A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). 1. An agency is defined in cl 2 of Schedule 4 to mean any of the following: (a) a Public Service agency, (b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013), (c) a public authority, (d) a public office, (e) a local authority, (f) a court, (g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4. 1. Prior to its corporatisation, Pillar was a State owned corporation and therefore was a "public authority", which is defined by clause 2 of Schedule 4 of the Act to include a State owned corporation. Clause 2(3) provides, however, that an incorporated company or association (unless declared to be a public authority for the purposes of the provision by a regulation under this clause), is not a public authority for the purposes of a provision of the GIPA Act. There is no regulation under the GIPA Act declaring Pillar to be a public authority. 2. Schedule 3 of the SACPAT Act deals with the corporatisation of Pillar: Schedule 3 Corporate conversion of Pillar and transaction SOCs (Section 10) 1 Direction for corporate conversion of Pillar and transaction SOCs The Treasurer may direct by order in writing (a corporate conversion direction) that Pillar or a transaction SOC be converted into a company limited by shares of a specified type. 2 Application for conversion to company (1) A SOC to which a corporate conversion direction has been given is authorised to apply to be registered under Part 5B.1 of the Corporations Act as a company limited by shares of the type specified in the direction. (2) That application can only be made if the Treasurer has issued a certificate to the corporation that certifies that the Treasurer is satisfied that the provisions of this Act have been complied with concerning the transfer of its incorporation to the Corporations Act. (3) A certificate issued by the Treasurer for the purposes of this clause: (a) cannot be challenged, reviewed or called into question in proceedings before any court or tribunal, and (b) is conclusive evidence in any proceedings before a court or tribunal that all the requirements of this Act have been complied with concerning the transfer of the incorporation of the corporation to the Corporations Act. 3 Effect of conversion (1) The following provisions are taken to have had effect immediately before a SOC to which a corporate conversion direction has been given is registered as a company under the Corporations Act: (a) the corporation ceases to be a statutory State owned corporation for the purposes of the State Owned Corporations Act 1989 or any other State legislation, (b) the voting shareholders (within the meaning of the State Owned Corporations Act 1989) of the corporation cease to be members of the corporation, (c) the board of directors of the corporation is dissolved and each member (including any acting member) of the board ceases to hold office as such, (d) any person who holds a statutory office of the corporation ceases to hold that office, (e) any person who ceases to be a member of the corporation or to hold an office because of the operation of this subclause is not entitled to any compensation for the loss of that membership or office. (2) Nothing in this clause prevents any person from becoming an officer of the company into which the corporation is being converted in accordance with its constitution and the provisions of the Corporations Act. (3) A SOC to which a corporate conversion direction has been given becomes a transaction company for the purposes of this Act only when it is registered as a company under the Corporations Act. (4) When a SOC is registered as a company under the Corporations Act pursuant to a corporate conversion direction, section 43A (General audit of former statutory bodies) of the Public Finance and Audit Act 1983 applies as if the SOC had been abolished." 1. The effect of clause 3(1)(a) of Sch 3 is that immediately before Pillar was registered as a company under the Corporations Act, it ceased to be a statutory State owned corporation for the purposes of the State Owned Corporations Act 1989 or any other State legislation and became a private corporation. The words "or any other state legislation" appear to indicate a legislative purpose that the new Pillar not be subject to any NSW legislation which applied to State-owned corporations generally. 2. The question is therefore whether Mr McGann's rights under the GIPA Act to an internal review of Pillar's decision and potentially the right to apply for a review of that decision by this Tribunal, were preserved by any operation of law. Regrettably for the applicant, I have concluded that those rights were not preserved. 3. Section 30(1) of the Interpretation Act 1987 protects the right to bring proceedings in respect of a right, privilege, obligation or liability acquired, accrued or incurred under an Act or statutory rule, where that Act or rule has later been repealed or amended. However there was no repeal or amendment of the Act in question. The SACPAT Act was a new Act and it had the effect that Pillar ceased to be a State owned corporation on a particular date. 4. On its commencement, section 13 of the SACPAT Act provided for a Superannuation Administration Assets Ministerial Holding Corporation (the Corporation) which was a statutory body representing the Crown. The Corporation's functions were stated to be: (a) to hold, on behalf of the Crown, Pillar assets acquired by it or transferred to it, and (b) to carry on any activities or business that relate to any Pillar assets held by it, including demanding, collecting and receiving charges, levies, rates and fees, and (c) such other functions for the purposes of the authorised transaction as may be prescribed by the regulations." (s 13(6)). 1. It appears that the Corporation was abolished effective 30 June 2017 by the Statute Law Miscellaneous Provisions Act 2017. 2. Neither party's submissions addressed the existence or the relevance, if any, of the Corporation. There was no evidence before the Tribunal that any assets of Pillar were transferred to it. In any event there is no indication in the legislation that the Corporation had any of Pillar's functions under law transferred to it. 3. The SACPAT Act contains several savings and transitional provisions in Schedule 6 but none of them deal with the functions of Pillar as an "agency" under the GIPA Act. There is a power to make regulations to deal with savings and transitional matters, but the respondent did not draw the Tribunal's attention to any such regulations and it appears that no regulations were ever made. 4. Strangely, Pillar continued to process Mr McGann's application for internal review after it ceased to be a State owned corporation, as if the GIPA Act applied, and made a purported decision on the internal review. It appeared before the Tribunal in these proceedings, and raised the issue of jurisdiction at this hearing where it submitted for the first time that its internal review decision was not a decision of an "agency". Its legal representatives declined an invitation from the Tribunal at the hearing to deal with the jurisdictional issue as a preliminary matter. 5. Despite this, there is no legal principle by which Pillar's conduct alone can enliven the Tribunal's jurisdiction. It is notable that the government information held by Pillar is not Pillar's information. Pillar merely administers the information on behalf of the STC. Had Pillar been alert to the legal situation at the relevant time, it could have informed Mr McGann of the situation and avoided these proceedings. Possibly Mr McGann could have made a fresh application directly to STC. 6. In my view, it would be appropriate for action to be taken to address the difficulties which have resulted, and possibly will result in the future, from this legislative oversight. 7. In the circumstances I find that the internal review decision made by Pillar was not "a reviewable decision" within the meaning of s 80 of the GIPA Act as it was not made by an agency as defined by the Act. Consequently the Tribunal does not have jurisdiction to determine the applicant's application for review and the proceedings must be dismissed pursuant to s 55(1) of the Civil and Administrative Tribunal Act. Order 1. The application is dismissed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2017