Australian Broadcasting Corporation and and David Tennant ‘F’ and Australian Broadcasting Corporation [2012] AICmr 8 Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7
[2012] AATA 914
[2012] AATA 914
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1314
Re
Australian Broadcasting Corporation
APPLICANT
And
Herald and Weekly Times Pty Limited
RESPONDENT
File Number(s)
2012/1315
Re
Australian Broadcasting Corporation
APPLICANT
And
David Tennant
RESPONDENT
Appeal from
‘F’ and Australian Broadcasting Corporation [2012] AICmr 8 Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7
DECISION
Tribunal President D Kerr
Senior Member A K BrittonDate 21 December 2012 Place Sydney
Application for review of decision made by Australian Information Commissioner concerning documents requested by the Herald and Weekly Times Pty Limited (Proceedings no 2012/ 1314 )
1.The decision made by the Australian Information Commissioner on 7 March 2012 under section 55K of the Freedom of Information Act 1982 (Cth) is affirmed.
Application for review of decision made by Australian Information Commissioner concerning documents requested by Mr Tennant (Proceedings no 2012/1315)
2.The decision made by the Australian Information Commissioner on 7 March 2012 under section 55K of the Freedom of Information Act 1982 (Cth) is set aside and in substitution it is decided:
a) The ABC is exempt from the operation of the Freedom of Information Act 1982 (Cth) in relation to any classification symbol (in any form) incorporated in any version of any ABC program.
b) The balance of the decision made by the Australian Information Commissioner is affirmed.
..............[Sgd]............................
President D Kerr
CATCHWORDS
FREEDOM OF INFORMATION – application for Australian Broadcasting Corporation documents – meaning of “program material” – meaning of “in relation to” program material – exemption – relevance of UK Freedom of Information Act cases – relevance of independence of the ABC – program classifications – salaries and payments to ABC programs
LEGISLATION
Australian Broadcasting Corporation Act 1983 (Cth)
Freedom of Information Act 1982 (Cth)
Freedom of Information Act (2000) (UK)
Freedom of Information Amendment (Reform) Act 2010 (Cth)
CASES
Australian Broadcasting Corporation v University of Technology, Sydney (2006) 154 FCR 209
Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40
British Broadcasting Corporation, Information Commissioners Office UK, FS50356183, (28 February 2011)
British Broadcasting Corporation, Information Commissioners Office UK, FS50359727, (23 February 2011)
British Broadcasting Corporation, Information Commissioners Office UK, FS50418148 (24 January 2012)
‘F’ and Australian Broadcasting Corporation [2012] AICmr 8
Harris v Commissioner of Taxation (2002) 125 FCR 46
Hatfield v Health Insurance Commission (1987) 15 FCR 487; (1987) 77 ALR 103
Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7
HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; (1990) 92 ALR 213
Plaintiff M47/2012 v Director General of Security [2012] HCA 46
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
State Government Insurance Office v Rees (1979) 144 CLR 549
Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1988) 167 CLR 45
Transfield ER Futures Ltd v The Ship ‘Giovanna Iuliano’ [2012] FCA 548
Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510
Woodside Energy Ltd v Federal Commissioner of Taxation (No 2) [2007] FCA 1961
SECONDARY MATERIALS
Australian Broadcasting Corporation, Code of Practice (Australian Broadcasting Corporation, Ultimo, 2011)
Butler, Susan, Macquarie Dictionary (5th ed, Macmillan, 2009)
DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis, 2011)
Oxford English Dictionary Online 10 December 2012
R Fraser ‘The ABC FOI exemption for “program material” in the Federal Court’ (2006) 14 AJ Admin L 55
REASONS FOR DECISION
President D Kerr
Senior Member A K Britton
21 December 2012
Mr David Tennant and newspaper publisher Herald and Weekly Times Pty Limited (“HWT”) made (unrelated) requests to the Australian Broadcasting Corporation (“the ABC”) under the Freedom of Information Act 1982 (Cth) (“the FOI Act”) for access to documents. Mr Tennant requested documents relating to the classification of ABC television programs and HWT requested documents relating to salaries and other payments made to program makers engaged on 13 ABC television and radio programs, including Media Watch, Four Corners and Mornings with Jon Faine.
The ABC refused both requests contending in each case that the requested documents constituted “program material” or documents “in relation to program material” and by the combined operation of s 7(2) and Part II of Schedule 2 of the FOI Act (“the Schedule”), it was exempt from the operation of the FOI Act in relation to such documents.
On review, the Australian Information Commissioner (“the Information Commissioner”) reversed both decisions finding that the connection between the documents sought and the ABC’s program material was so remote there was not even an indirect relationship between them. (‘F’ and Australian Broadcasting Corporation [2012] AICmr 8; Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7). The ABC now applies to the Administrative Appeals Tribunal (“AAT”) for review of each of the decisions made by the Information Commissioner.
While the initiating requests made by Mr Tennant and HWT are unrelated, each turn on the construction and application of s 7(2) and the Schedule. Therefore, with the consent of the parties, the two applications were heard together.
The ABC was the only party to attend the hearing. Written submissions were received from Mr Tennant after the hearing. At our invitation the ABC provided a written response to those submissions. No submissions were received from HWT.
STATUTORY FRAMEWORK
The FOI Act as amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth) (“the Reform Act”) applies because Mr Tennant and HWT made their respective requests for documents after 1 November 2010 (s 2 of the Reform Act).
The FOI Act gives every person a legally enforceable right to obtain access in accordance with the Act to a document of an agency, other than an exempt document (s 11(1)(a)). The ABC is an agency for the purpose of the FOI Act (see definitions of “agency” and “prescribed authority” in s 4). An “exempt document” is defined to include a document exempt by virtue of s 7 of the FOI Act (s 4).
Section 7(2) of the FOI Act is drafted in the following somewhat awkward terms:
The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them.
Division I of Part II of Schedule 2 is headed “Agencies exempt in respect of particular documents” and includes:
Australian Broadcasting Corporation, in relation to its program material and its datacasting content.
The word “document” in this context is a noun. The Macquarie Dictionary (5th ed, Macmillan, 2009) defines a “document” as “a written or printed paper furnishing information or evidence…”.
However s 4 of the FOI Act extends the ordinary definition of “document” to include:
(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
(ii) a map, plan, drawing or photograph;
(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v) any article on which information has been stored or recorded, either mechanically or electronically;
(vi) any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c) any part of such a copy, reproduction or duplicate;
…
The agency to which the request for documents under the FOI Act was made, in this case the ABC, has the onus of establishing that the decision to refuse disclosure is justified or that the Tribunal should give a decision adverse to the Applicant (s 61(1)(b) of the FOI Act).
THE ISSUES
Section 7(2) and the Schedule work together to provide that the ABC is exempt from the operation of the FOI Act in respect of particular documents (as broadly defined in the Act) “in relation to its program material and its datacasting content”. It is common ground that each application is concerned only with “program material” and not “datacasting content”.
Whether the ABC is exempt from the operation of the FOI Act in respect of the requested documents turns on what kinds of documents are included within the meaning of the words “program material” and whether, as asserted by the ABC, the exemption extends to a wider class of documents “in relation to” such documents as are program material.
The ABC contends that the requested documents are exempt either because they themselves are documents which are “program material” or are documents “in relation to program material”. It argues that in deciding whether the requested documents fell within the scope of the Schedule, the Information Commissioner was correct to apply the test adopted by Bennett J in Australian Broadcasting Corporation v University of Technology, Sydney (2006) 154 FCR 209 at [31] (“UTS”), namely, whether the documents sought have a direct or indirect relationship to program material. The ABC goes on to argue, however, that the Information Commissioner was incorrect to find that the documents sought did not have a direct or indirect relationship to program material.
The ABC also argues that when interpreting s 7(2) and the Schedule the Tribunal “must … have regard to the relevant context … [namely] the Australian Broadcasting Corporation Act 1983 (Cth) … and the independence of the ABC”.
The principal issues to be resolved are the scope of the exemption and the meaning of the phrase “program material”.
What is the scope of the exemption?
The ABC, relying principally on the decision of Bennett J in UTS, contends that the ABC’s “program material” and also “documents in relation to its program material” are exempt under the FOI Act. The ABC submits that all the documents sought by HWT and Mr Tennant fall into one or other category.
Mr Tennant submits that the exemption only applies to the ABC’s “program material”. He argues that the test stated by Her Honour in UTS was overturned by the Full Court in Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 (“Bell”). (Both UTS and Bell considered the version of the FOI Act which existed prior to the amendments introduced by the Reform Act. The relevant provisions contained in that version of the FOI Act are identical to the corresponding provisions in the current version of the FOI Act).
In UTS the University sought access under the FOI Act to documents concerning complaints received by the ABC about specific ABC programs.
Justice Bennett rejected the argument that the phrase “in relation to” within the context of the Schedule equates to “for” and that the exemption is only for documents which are ABC program material. Her Honour held it to be relevant that the words “in relation to” appeared both in s 7(2) and the Schedule:
10 There is no need to repeat “in relation to” in the Schedule unless it adds a further qualification. The fact that this expression appears in each entry in the Schedule means that, putting the section and the Schedule together, exemption is granted “in relation to ... in relation to” the category specified.
Her Honour concluded at [16] that putting s 7(2) and the Schedule together, the exemption for the ABC and SBS should be read as follows:
“in relation to the documents” (s 7(2)) “in relation to its program material (the Schedule)”.
Her Honour reasoned:
17 It may well be that the repetition of “in relation to documents” was unnecessary for the other agencies, as it was for the ABC. However, the repeated use of “in relation to” reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category. Even if, as submitted by UTS, “in relation to” can mean “for”, it is unlikely that it was intended to carry that restricted meaning both in s 7(2) and in the Schedule. It may be that, reading s 7(2) and the Schedule together, the exemption is “for documents in relation to” the category specified but I do not accept that the intention was to exempt only the specified category itself.
18 That conclusion is reinforced by an appreciation of the consequences of the construction advanced by UTS, namely that the only exemption is for the “sights and sounds”, the recordings and tapes. The program may not be recorded until it is publicly transmitted. Once transmitted, the material would be in the public arena. The ABC would be deprived of the exemption prior to transmission and other parties would be able to obtain information in advance of proposed programs. If a program were not recorded, there would be no exemption. Such a construction would mean that there would be little utility in providing an exemption from production of the recordings.
19 The parties only referred to one case where the Schedule was discussed (Rivera v Australian Broadcasting Corp (2005) 144 FCR 334). While Rivera concerned the Privacy Act 1988 (Cth), it did refer to the Schedule. The observation of Hill J at [38], that the ABC is exempt under the Act “in respect of ‘documents’ in relation to its program material”, is consistent with these reasons.
In Bell a Full Court considered the operation of s 7(2) and the Schedule in the context of a request for documents held by the CSIRO about wireless networks and LAN. The CSIRO, like the ABC, is an agency for the purpose of the Act and is listed in the Schedule.
The Full Court (Branson, Sundberg and Kenny JJ) observed:
52 Like this case, ABC concerned s 7(2) and Pt II of Schedule 2 of the FOI Act, which includes the ABC “in relation to its program material and its datacasting content”. At issue in ABC was the meaning of this expression in the Schedule. The ABC argued, and Bennett J accepted, that the expression covered documents relating to program material, as well as program material itself. This conclusion is unexceptional. It is an aspect of her Honour’s reasoning that has given rise to the difficulty to which the notice of contention refers. After noting that s 7(2) provides that the bodies specified in the Schedule are exempt “in relation to the documents referred to in that [Schedule]”, her Honour said (at [10]):
There is no need to repeat ‘in relation to’ in the Schedule unless it adds a further qualification. The fact that this expression appears in each entry in the Schedule means that, putting the section and the Schedule together, exemption is granted ‘in relation to ... in relation to’ the category specified.
Whilst acknowledging that the repetition of “in relation to documents” may have been unnecessary, Bennett J also said (at [17]):
[T]he repeated use of ‘in relation to’ reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category.
53 Whilst we agree with her Honour that the expression “in relation to” in s 7(2) and in Pt II of Schedule 2 makes it clear that a relevant agency is exempt from the operation of the FOI Act “in relation to” the documents mentioned in the Schedule “in relation to them”, we do not consider that the further use of the expression “in relation to” in Pt II of the Schedule is intended to add a further qualification. We consider that the use of the expression “in relation to” in Pt II of the Schedule is merely intended to pick up (and, in this sense, repeat) the use of the expression in s 7(2). The expression is used to tie the subsection and the Schedule together and not to introduce a further qualification. As the present case demonstrates, there is no good reason for the suggested further qualification, which would deny protection to documents created in the course of, or for the purposes of, commercial activities unless they were also shown to have some relationship to some such other documents. Such a suggested limitation would serve little purpose. Bearing in mind s 3(2) of the FOI Act, we do not think that the Parliament intended s 7(2) and Pt II of Schedule 2 to be read in this way.
In dismissing the appeal the Full Court noted at [54] that while the Tribunal had discussed the effect of UTS (referred to as “ABC” by the Federal Court), its ultimate decision was not affected by the analysis in that decision.
The parties disagree about the effect of the Full Court’s judgment. Mr Tennant contends that in rejecting Bennett J’s analysis about the relevance of the repeated use of the expression “in relation to”, the Full Court effectively overruled Her Honour’s ultimate conclusion that the exemption extended to documents “in relation to” program material.
The ABC disagrees and contends that the reasoning in Bell needs to be understood in the context of the entry in the Schedule under consideration in that case, namely:
[CSIRO], in relation to documents in respect of its commercial activities
and the meaning given by s 7(4) of the FOI Act to the expression “in respect of” in the Schedule:
…a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities.
Furthermore the ABC contends that the argument advanced by Mr Tennant conveniently overlooks the statement by the Full Court in Bell at [52]:
The ABC argued, and Bennett J accepted, that the expression covered documents relating to program material, as well as program material itself. This conclusion is unexceptional.
If it is possible to reconcile the reasoning in Bell with the Full Court’s endorsement of what was said by Bennett J in UTS referred to in the passage above we think we are obliged to apply the statute in that manner - however strained the outcome might appear.
The passage quoted from Bell (above at [29]) was relied on by the ABC as an endorsement of the proposition that the ABC is exempt “in respect of” particular documents in two senses: (a) in that the words “in relation to” refer to and identify a category of documents and that those documents are exempt, and (b) in that the words “in relation to” serve also as words of connection such that other documents, those that have a direct or indirect relationship to that category, are also exempt.
However the ABC’s submission ignores the tension between what was said in the whole paragraph at [52] in Bell and the Full Court’s criticism of the reasoning in UTS. On a strict view the Full Court’s analysis is obiter but what their Honours said was expressed in considered and clear terms and, we understand, intended to bind subsequent decision makers. Counsel for the ABC did not suggest that the decision in Bell could be ignored.
Immediately following the passage relied on by the ABC, the Full Court continued at [52]:
It is an aspect of Her Honour’s reasoning that has given rise to the difficulty to which the notice of contention refers.
The Full Court then identified the passages of Her Honour’s reasoning (those at [10] and [17] in UTS) that had influenced her conclusion that the exemption covered documents relating to program material as well as program material. The Court explicitly rejected that reasoning.
The Full Court stated (a) that the repeated use of the expression “in relation to” in the Schedule was not intended to add a further qualification and (b) that the words “in relation to” in the Schedule merely tied s 7(2) and the Schedule together.
In our opinion the only way to read Bell as not containing internally contradictory statements, simultaneously approving and disapproving of Bennett J’s reasoning, is with the understanding that the Full Court used the words “in relation to” only in the first and narrower of the two senses mentioned at [31] of these reasons, when it stated that Her Honour’s conclusions were unexceptional (extracted in our reasons at [29]).
A critical part of the Full Court’s reasoning in Bell, which has led us to conclude that their Honours intended to use the words “in relation to” with that understanding, is the following passage at [53]:
Whilst we agree with her Honour that the expression “in relation to” in s 7(2) and in Pt II of Schedule 2 makes it clear that a relevant agency is exempt from the operation of the FOI Act “in relation to” the documents mentioned in the Schedule” in “relation to them”, we do not consider that the further use of the expression “in relation to” in Pt II of the Schedule is intended to add a further qualification.
As a matter of grammar the words “in relation to them”, in the middle of that passage, must attach to the plural expression “the documents referred to in the Schedule”. We take that, together with the Full Court’s reference in the singular to “a relevant agency”, as inconsistent with the plural words “in relation to them” applying to the ABC as suggested in obiter at [32] in UTS.
It is a standard canon of statutory construction that all words of a provision must be given effect. (Plaintiff M47/2012 v Director General of Security [2012] HCA 46 per French CJ at [41] and Hayne J at [172]) We think effect can be given to the concluding words of s 7(2) if they are read as identifying with precision the documents in respect of which the ABC is exempt.
Those words would be otiose unless the Full Court understood them as reflecting the Parliament’s intention to confine the ABC’s exemption specifically to those documents.
While there are limits to how useful headings can be as aids to interpretation, we also take the wording of the heading to the Schedule — “Agencies exempt in respect of particular documents” — as some further indication that that reading was intended by the Parliament. (See DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis, 2011) at [4.50-4.51])
Giving effect to the two decisions with this understanding requires us to respect the authority of UTS but subject to the considered views of the Full Court in Bell.
We therefore conclude that the relevant exemption of the ABC is only in relation to documents which are “program material” and not for any wider class of documents with some extended relationship or connection to those documents.
This then raises the question of the meaning or definition of “program material” for the purposes of the Act.
What does “program material” mean?
The expression “program material” is not defined by the FOI Act (or for that matter by the Australian Broadcasting Corporation Act 1983 (Cth) (“the ABC Act”)). To ascertain its meaning, as a starting point it is necessary to consult dictionary definitions. Two will suffice: the Macquarie Dictionary and the Oxford English Dictionary Online ( Neither offers a definition for “program material”.
The Macquarie Dictionary defines “program” to include “[r]adio, TV a particular item or production…” and the Oxford English Dictionary Online defines it as “… an item broadcast between stated times on radio or television …”.
“Material” is defined in the Macquarie Dictionary to mean “1. the substance or substances of which a thing is made or composed. 2. any constituent element of a thing. 3. anything serving as crude or raw matter for working upon or developing…” and the Oxford English Dictionary Online defines it as “1. the matter from which a thing is or can be made … 2. information or ideas for use in creating a book or other work”.
While these definitions are useful in understanding the meaning of the compound noun “program material”, we must consider not simply the amalgam of these words but read them in their context. The term refers to particular kinds of documents in the possession of the ABC. The Tribunal is entitled to proceed on the basis that the Parliament would have had knowledge of the ABC’s role as a public broadcaster. The expression “program material” takes its colour from that context.
It is settled law that the documents which are “program material” are not limited to the “sights and sounds that convey ideas and the classification of an idea…” (per Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 368), and includes “at least…the content of the films and tapes” (per Bennett J in UTS at [26]).
The ABC contends that “program material” constitutes the material that makes up the content of a program as broadcast or published and the material that is part of the process of production of the broadcast. Relying on an academic article by Mr Ron Fraser, Mr Tennant argues that program material is “material that actually makes up the ABC’s programs, whatever physical form it may take”. (See ‘The ABC FOI exemption for “program material” in the Federal Court’ (2006) 14 AJ Admin L 55 at 61)
In our opinion it must be borne in mind that a reference to “program material” in this specific statutory context is to a document of a particular kind (within the extended meaning of s 4 of the FOI Act) and not the underlying activity or thing about which the document furnishes information. It will often be the case that the distinction is of no consequence but in other instances it may be of considerable significance. A document which is about the activity of program making or its processes may not itself be a document which is program material.
There is no suggestion that the expression “program material” is a term of art. Notwithstanding the exception is contained within an Act intended to facilitate and promote public access to information, there is no reason to give those words a narrow construction. As French J held in Woodside Energy Ltd v Federal Commissioner of Taxation (No 2) [2007] FCA 1961 (at 261), words in a statute should be construed according to their ordinary meaning “unless some technical or special meaning is indicated”. We therefore reject Mr Tennant’s submission because it appears to us to require a narrower understanding of the words than is conveyed by their ordinary meaning.
In our opinion the ordinary user of the English language familiar with the role of the ABC would understand the words “program material” as conveying a wider meaning than restricted to documents which “actually make[s] up” the program and/or the broadcast of the program. (For current purposes we will use the word “program” to refer both to the program itself and any broadcast or publication of that program.) A program, be it designed for television or radio broadcast (or both) may encompass a range of material such as part or whole of another program, film, video, audio clips, scripts, screenplays, journal articles, poems, cartoons, graphics, newspaper articles, the content of auto cues, lyrics, compositions, sound recordings and so on. This material and the program itself are the end result of a process which may be quite lengthy and which may involve some material that is not ultimately included in the completed program. This material may be, nevertheless, essential to, or useful in, the production of the program and might include story ideas, notes of interviews or research done for the program, collections of images, storyboards, transcripts, outtakes, director’s notes and so on. The proposition that material of this type constitutes “program material” is consistent with the list of examples of program material endorsed by Bennett J in UTS at [20]:
· films or tapes which have or have not been broadcast;
· draft tapes and draft films;
· material which is “part of the production process for the film or the tape recording”;
· the development proposal and six treatments …;
· scripts; and
· technical directions given by a director for the lighting on a particular program.
We also have difficulties with part of the definition proposed by the ABC - “material which is part of the process of production of the broadcast” [our emphasis] is “program material”. Broad in scope, that definition would catch any document dealing with any aspect of the process of program making.
All of the other entries appearing in the Schedule in respect of which agencies are exempted from the FOI Act, except those dealing with the ABC and the SBS, exempt those listed agencies in respect of one or more specified activities. For example, the entry applying to the Australian Postal Corporation is “in relation to documents in respect of its commercial activities” and the entry applying to the Australian Trade Commission is for “documents concerning the carrying out, in whole or part, of overseas development projects”.
Section 7(4) instructs that a reference in the Schedule “to documents in respect of particular activities” is to be “read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities”. That provision has no application to the entries listed in the Schedule for the ABC and the SBS. Parliament’s decision to use the term “program material” as the descriptor of the relevant documents rather than by reference to an activity such as “the process of production of a broadcast” or “program making” or some other such description of an activity suggests, in our opinion, that the ABC’s submission in this regard must be rejected.
In our opinion, the term “program material” for the purpose of the Schedule, means the document (to the extent it falls within the extended meaning of s 4 of the FOI Act) which is the program and all versions of the whole or any part of the program, any transmission broadcast or publication of the program, and includes a document of any content or form embodied in the program and any document acquired or created for the purpose of creating the program, whether or not incorporated into the completed program. While not necessary to determine, we agree with the parties in UTS (see at [5]) that it would include a document created after a program is broadcast. Such documents might include transcripts of radio programs, podcasts, internet pages and documents produced by the ABC or incorporated in its records directly concerning the substantive content of the broadcast program.
Are the documents requested by HWT “program material”?
The request made by HWT is in the following terms:
[A]ll documents dealing with salaries, or any other payments, paid by the ABC in the financial year 2009 – 2010 to program makers working on the following television and radio programs: [13 named television and radio programs].…
The ABC identified the following types of documents as falling within the scope of HWT’s request:
The types of documents which include information about salaries or any other payments paid by the ABC to program makers include:
(i)For ABC - employed program makers: individual contracts of employment, Australian Workplace Agreements, Individual Transitional Employment Agreements, the ABC Employment Agreement, payslips, group certificates and other payment records (such as for allowances and other benefits like car parking and mobile phones).
(ii)For externally - contracted talent and external producers: contracts, tax invoices and other payment records.
The ABC contends that those documents form part of its editorial decision-making process and therefore constitute program material. It points out that each of the programs the subject of HWT’s request was allocated a finite budget and, in turn, a proportion of that budget was allocated to the fees, salaries and the like of “program makers”. It contends that decisions about the proportion of a program’s budget to allocate to program makers reflect editorial or creative decisions about the style and content of the individual program. These in turn determine the number and calibre of program makers ultimately engaged and the type of program produced.
While trite that program makers create program material and creative and editorial decisions may influence the number and type of program makers employed, it could not reasonably be argued that the requested documents, which include group certificates, payslips and employment contracts, fall within the definition of “program material” we have formulated. They neither form part of a program, nor the content or material embodied in the program. Nor were they acquired or created for the purpose of creating the program. It follows that they are not documents constituting “program material”.
Are the documents requested by HWT documents “in relation to” program material?
For the reasons as given we conclude that the documents requested by HWT do not constitute “program material”. It follows that the ABC is not exempt from the operation of the FOI Act in relation to those documents.
Lest we be wrong in our view about the scope of the claimed exemption we will address the argument made by the ABC that the requested documents are “in relation to program material” in the sense that they have a direct or indirect relationship with documents that are program material.
However, before addressing those submissions we should indicate that in our opinion the ABC submission misconceives Bennett J’s reference to an indirect relationship by taking Her Honour’s observations out of context. In UTS the applicant university contended that the scope of the exemption should be limited to the “sights and sounds” broadcast and the recordings of those things, that is, the content. Her Honour rejected that contention and held that this was too narrow a definition. It was in that context alone that she used the expression “indirect relationship to program material”. Her Honour said:
31 A construction which limits the exemption only to the tapes and recordings that formed the program material yields, to my mind, an improbable result. The exemption in s 7(2) is in terms of documents. Documents are broadly defined and include “material” in the nature of tapes and recordings. That does not necessarily mean that other forms of document are excluded by the description “program material”. Even if the category of documents specified is limited to tapes and recordings, the exemption both in the section and the Schedule is in relation to that program material. If a document has direct or indirect relationship to program material, subject to one further matter, it is exempt. I see no reason for a limitation to intellectual property. For example, I do not accept that scripts for programs are not included. They are either program material or documents that relate to program material.
A construction as wide as that now contended for by the ABC would yield an equally improbable result. In our view Her Honour was not seeking to widen the exemption to include any document with any kind of indirect relationship to a program. Her concern was to prevent the exemption being narrowed to absurdity. When the decision is read as a whole, in the context of its own facts, we consider that it provides no support for the very wide construction of the exemption contended by the ABC.
There can be no argument that decisions about resource allocation within the ABC at large and within individual programs have a relationship with program making, which in turn has a relationship with program material. But it does not follow that any document dealing in some way with such decisions is a document “in relation to” program material.
In any event Bennett J’s reasoning regarding the words “in relation to” was expressly disapproved of in Bell. Accordingly we think that the question of statutory interpretation cannot be regarded as closed and that we cannot simply defer to what was said in UTS. The ABC argues that program makers make programs and therefore documents relating to their salaries and associated payments at least indirectly relate to the content or production of programs. The ABC contends that the requested documents relate to decisions about resource allocation within the ABC which “goes right to the heart of creative decision making”. It points to three decisions made by the UK Information Commissioner’s Office involving the British Broadcasting Corporation (“the BBC”). (Case references — FS50356183 on 28 February 2011, FS50359727 on 23 February 2011, and FS50418148 on 24 January 2012) (“the UK FOI cases”) The ABC contends that the UK FOI cases support the conclusion that such payments are based on editorial decisions and are therefore part of the actual production process.
It is settled that the phrase “in relation to”, absent other indicia, is an expression of broad import (O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; 92 ALR 213 per Toohey and Gaudron JJ) and may require “no more than a relationship whether direct or indirect, between one subject matter and another” (per McHugh J in O’Grady at 376). But as with any statutory expression the phrase must of course be read in the context in which it is found (State Government Insurance Office v Rees (1979) 144 CLR 549 at 553-554 and 560-561; Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1988) 167 CLR 45 at 47, 51 and 54; Harris v Commissioner of Taxation (2002) 125 FCR 46). Dawson J, agreeing with Toohey and Gaudron JJ, observed in O’Grady at 367:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connection. But those words should not be read out of context … What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connection - something in the nature of a relevant relationship - is necessary...
Justice Davies in Hatfield v Health Insurance Commission (1987) 15 FCR 487; 77 ALR 103 at 491 observed that expressions such as “in relation to” while commonly found in legislation “invariably raise problems of statutory interpretation”. His Honour said:
The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.
In Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510 French CJ and Hayne J at [25] observed that such phrases can be used “in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ”. Their Honours referred approvingly to what Hill J had said in HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 at [35] in which His Honour noted that the “sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case”.
Sometimes the text, context and purpose of an Act will require a direct rather than indirect relationship to be applied to seemingly broad words of connection. In Hatfield Davies J, at 491, gave several examples where such words were held to require a “direct and immediate relationship”. More recently in Transfield ER Futures Ltd v The Ship ‘Giovanna Iuliano’ [2012] FCA 548 Gordon J at [34-35] recognised, in the particular statutory context Her Honour was considering, that the words “related to” required “some reasonably direct connection” with the activities described in the statute.
We have stated our opinion that there is no reason to give the words “program material” a narrow construction. However, it is necessary when dealing with words of connection of inherently indefinite scope to take into account the Parliament’s stated intention, reflected explicitly in s 3 of the FOI Act and in particular “that the functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information...”.
It would run counter to the text, context and purpose of the FOI Act, following the amendments made by the Reform Act, to read the words “in relation to” in s 7(2) and the Schedule such that they would apply to a document having only an indirect and remote connection with program material.
In our opinion there must be, at the least, a reasonably direct relationship between any document in respect of which the ABC claims to be exempt on this basis and what the Tribunal has held to be a document within the meaning of “program material”.
Applying that analysis we are unable to accept the argument advanced by the ABC that the documents requested by HWT are documents “in relation to” program material for the following reasons.
First, taking the argument advanced by the respondent to its logical conclusion, there would be no documents held by the ABC that are not at least indirectly related to program making. The very raison d’etre of the ABC is the broadcasting of programs and everything else it does is either directly or indirectly related to that (‘ABC Charter’, s 6 of the ABC Act). If Parliament had intended the exemption to have such a broad reach we would expect the ABC to be listed as one of the agencies completely exempt from the operation of the FOI Act (see s 7 and Division 1 of Part I of Schedule).
Second, as discussed above at [56] of these reasons the statutory exemption for the ABC is in respect of documents of a particular kind. It is not for documents in respect of an activity. In order to establish a relevant connection the ABC must be able to identify a relationship between a document that is program material and the document for which it claims exemption from the FOI Act. The ABC did not attempt that task. Instead, in substance, the ABC contended that the relevant relationship could be one between the document for which exemption was claimed and the activity of making program material.
The evidence and submissions advanced by the ABC assumed this (unacknowledged) proposition. For example, Ms Wilson’s affidavit of 2 October 2012 sought to establish that what the ABC must pay by way of salaries affects the cost of commissioning and making programs. That can be accepted. It was then asserted that there is a finite budget for each of the News, Television and Radio Divisions. That too may be accepted. It was then asserted that in respect of each of the News, Television and Radio Divisions the allocation of resources to one use rather than another affects the overall content of the programs broadcast by the ABC. That might be thought to be a more contestable proposition but for present purposes it may be also accepted.
However, none of that evidence is relevant to the task we are required to undertake. Such evidence might be relevant to establishing a relationship between the requested documents and a document in respect of the ABC’s activities of commissioning content, making programs and allocating resources. However, those are not relevant relationships for the purposes of the FOI Act.
Such connections or relationships would only be relevant if the provisions of s 7(4) of the Act applied. For our reasons set out above at [56], they do not.
Third, the UK FOI cases cited by the ABC offer little assistance to the issue we are required to determine, namely whether documents containing salary information about ABC presenters are documents “in relation to” program material. The UK FOI cases concern the proper construction of the relevant provisions of the Freedom of Information Act (2000) (UK) which provide in effect that the BBC is not obliged to deal with requests for information made under that Act:
… in respect of information held for purposes other than journalism, art or literature.
The UK provisions are significantly different to those under the FOI Act we are required to consider. The UK FOI cases therefore provide little guidance on the proper approach to the interpretation and application of the latter.
In our opinion the connection between the class of documents requested by HWT, which for example would include group certificates and tax invoices issued to ABC program makers, and “program material” is both remote and tenuous.
Accordingly, even if we are wrong in our conclusion at [36], the documents in respect of which the ABC claims to be exempt are not documents “in relation to” program material.
Are the documents requested by Mr Tennant “program material”?
Mr Tennant requested the following documents from the ABC:
(i)Policies and documents of the ABC relating to the classification of television programs broadcast on the ABC; and
(ii)internal policies or documents which explain why the ABC Board amended the section of the ABC Code of Practice entitled “Television program classifications” in the 2006/2007 financial year.
The ABC argues that the documents described in paragraph (i) are documents “in relation to” program material because they directly concern the content of ABC television programs. It contends that those described in paragraph (ii) relate to program material in that they relate to the ABC’s policy governing the classification of programs.
The classification of ABC programs is governed by the ABC’s ‘Associated Standard: Television Program Classification’ (“the Standard”) which forms part of the ABC’s ‘Code of Practice 2011’ (“the Code”). The Code requires that all domestic television programs other than news, current affairs and sporting programs, be given one of four classifications: General (G), Parental Guidance (PG), Mature (M) or Mature Audience (MA15+). Apart from those classified as General, the symbol depicting the classification awarded to the program is displayed at the beginning of each program.
The time slot in which an individual program is broadcast is determined by, among other things, its designated classification. For example, the Standard provides that a program classified as “Mature Audience” can only be shown between the hours of 9.30pm and 5.00am. The ABC claims that most programs are classified prior to completion and where this occurs classification staff may review scripts and, if necessary, recommend changes to ensure the program maintains its designated classification.
The ABC contends that a program classification symbol forms part of the program and thus constitutes program material and the documents described at paragraph (i) of Mr Tennant’s request, namely policies and documents relating to the classification of program material, have a direct relationship with that material.
The ABC does not claim that it is exempt from the operation of the FOI Act in relation to the Code, and presumably other publicly accessible documents that relate to program classification. The ABC contends that it is exempt from the operation of the FOI Act in relation to the balance of documents that fall within the scope of Mr Tennant’s request. These might include draft policy documents, internal working documents, papers and minutes of Board meetings, practice manuals and correspondence relating to the classification of particular programs.
There can be no argument that the classification symbol displayed on an ABC program forms part of the program as broadcast and constitutes program material. It therefore falls within the scope of the exemption.
We do not understand the ABC to contend that the balance of the documents requested by Mr Tennant constitute documents which are “program material”. That concession is consistent with our view. They are plainly not content or material embodied in the program. Nor could these documents be said to be material acquired or created for the purpose of creating the program.
Are the documents requested by Mr Tennant documents “in relation” to program material?
Adopting the approach taken in respect of the request made by HWT we will also consider whether the documents requested by Mr Tennant (apart from the classification symbol itself) are documents “in relation to” program material.
General policy documents concerning classification of programs are universal in application and relate only indirectly to the content of individual programs, or the material contained in them, by setting parameters within which programs will be classified or the process of classification will be undertaken. They do not add to, or subtract from, the creative and editorial elements of individual programs.
The connection between those documents, as requested by Mr Tennant, is too remote and tenuous to be relevantly “in relation to” any documents which are program material.
A more difficult question is whether a document which evidences the classification of an individual program but which has no connection at all to the creation of the program is a document “in relation” to a document that is program material.
For example, is a document about the ABC’s classification of material purchased from the BBC for broadcast by the ABC a document “in relation to” the purchased program? It is plain that there must be at least an indirect relationship between such documents. That is because the “program material” proposed for broadcast must be the subject of the documents concerning its classification. On the other hand the connection in such an instance only arises because of an ABC policy that requires its broadcasts to be classified. Documents furnishing information or evidence about the procedure of classification appear to us to be otherwise separate, distinct and of a different character from what we have concluded to be “program material”. We must therefore consider whether such a connection is too remote to be relevantly “in relation to” it.
The ABC submits that having regard to what was said by Bennett J in UTS such documents necessarily would have a relevant connection. However, we have previously expressed our view that Her Honour was not seeking to widen the exemption to include any document with any kind of indirect relationship to a program.
The Tribunal has discussed the relevant principles of statutory interpretation that govern the interpretation of the expression “in relation to” at paragraphs [68-74] of these reasons. In our opinion there must be at least a reasonably direct relationship between any document in respect of which the ABC claims to be exempt and the definition we have accepted of “program material”.
For example a TV guide that is simply about the broadcast times of ABC programs would not reasonably have a direct connection to “program material”. Although there obviously must be some kind of connection in that the program material must be referred to when the guide was developed, such a connection would bear no relationship at all to the creation of the content of the first document which is at the heart of our understanding of the meaning to be given to the words “program material”.
On the other hand, and by way of an example on the other side of the balance, a document furnishing information relevant to the commissioning of a program for broadcast by the ABC would seem to us to be “in relation to” any program material ultimately produced. It would have a reasonably direct connection to those documents.
However, even after taking into account all relevant factors, the adequacy of some connections will remain the subject of dispute. In such cases the sufficiency or otherwise of the connection or association, as Hill J noted in in HP Mercantile at [35] ultimately must be a matter of judgement. That seems to us to be the position in respect of the relationship between a document classifying a program as the program material itself.
While there is undoubtedly a connection, for the reasons we have discussed at [100] as apply to a TV guide, such a connection is neither reasonably direct nor does it bear any relationship to our understanding of the words “program material”. A document simply furnishing information about the classification of a program is not, in our opinion, “in relation to” the document which is “program material”.
Applying this analysis there is no further group of documents referable to Mr Tennant’s request that are not program materials but which are exempt as being “in relation to” those documents.
Is the ABC exempt from the operation of the Act in relation to the documents requested by Mr Tennant?
In our opinion the classification symbol (in any form) incorporated in any version of an ABC program constitutes “program material”. The balance of the category of the documents requested by Mr Tennant are neither program material nor documents in relation to program material and therefore are not exempt from the operation of the FOI Act.
Is the independence of the ABC relevant to this issue?
In relation to the operation of the FOI Act, the ABC is an exempt organisation or body only insofar as provided for by the Act itself. To find the relevant “context” for interpreting provisions of the Act, the starting point is the object of the FOI Act, not those of the ABC Act or the ABC’s Charter. It can be reasonably presumed that the constitution of the ABC, its work and its objects were taken into account when the Parliament decided to make certain organisations and bodies exempt from the operation of the FOI Act in certain respects defined in the Act and its schedules. There is no warrant under conventional canons of statutory construction to launch into a wide-ranging consideration of such concepts as “the independence of the ABC”.
In any event, the application of the concept of the independence of the ABC is, in this context, ambiguous and nebulous. The general understanding of this concept, we consider, is that the ABC is run by an independent board and has editorial independence from government. It is, however, subject to regulation under broadcasting legislation and is funded by the Commonwealth. Like other bodies established by Commonwealth statute, it is subject to the FOI Act except where it is specifically exempted from that Act’s operations. Moreover, even if its independence is relevant in some indeterminate fashion to the issue of the statutory construction before us, we have received no persuasive evidence that it would be adversely affected if the Information Commissioner’s decision is affirmed.
OTHER EXEMPTIONS
As pointed out by the Information Commissioner a finding that the ABC is not exempt from the operation of the FOI Act in relation to the requested documents does not prevent the ABC from claiming that some or all are exempt or conditionally exempt under the FOI Act and refusing to grant access on that basis.
DECISIONS
For the reasons as given we have decided:
Application for review of decision made by Australian Information Commissioner concerning documents requested by the Herald and Weekly Times Pty Limited (Proceedings no 2012/ 1314 )
The decision made by the Australian Information Commissioner on 7 March 2012 under section 55K of the Freedom of Information Act 1982 (Cth) is affirmed.
Application for review of decision made by Australian Information Commissioner concerning documents requested by Mr Tennant (Proceedings no 2012/1315)
The decision made by the Australian Information Commissioner on 7 March 2012 under section 55K of the Freedom of Information Act 1982 (Cth) is set aside and in substitution it is decided:
(a)The ABC is exempt from the operation of the Freedom of Information Act 1982 (Cth) in relation to any classification symbol (in any form) incorporated in any version of any ABC program.
(b)The balance of the decision made by the Australian Information Commissioner is affirmed.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of President D Kerr and Senior Member A K Britton ..............[Sgd]...............................
Associate
Dated 21 December 2012
Date of hearing 11 September 2012 Date final submissions received 5 October 2012 Counsel for the Applicant Matthew Lewis
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