Australian Broadcasting Corporation v The University of Technology, Sydney

[2006] FCA 964

FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v The University of Technology, Sydney
[2006] FCA 964

FREEDOM OF INFORMATION – appeal from the Administrative Appeals Tribunal – ABC exempt from the Freedom of Information Act 1982 (Cth) ‘in relation to its program material … in relation to [it]’ – complaints and documents concerning complaints about ABC programs – documents sought are in relation to program material and exempt from production

WORDS AND PHRASES – “program material” – “in relation to” – “in respect of”

Freedom of Information Act1982 (Cth) s 7(2)

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 cited
Fountain v Alexander (1982) 150 CLR 615 cited
Harris v Commissioner of Taxation (2002) 125 FCR 46 cited
Keane v Australian Broadcasting Corporation (Unreported, Administrative Appeals Tribunal, 27 May 2004, W93/182 AAT No. 9583) considered
Nowegijick v R (1983) 144 DLR (3d) 193 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Re Australian Centre for Independent Journalism and Australian Broadcasting Corporation (2006) 88 ALD 771 set aside
Rivera v Australian Broadcasting Corporation (2005) 144 FCR 334 cited
Secretary Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 cited
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 cited

Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (Parliamentary Paper No 272/1979)

AUSTRALIAN BROADCASTING CORPORATION v THE UNIVERSITY OF TECHNOLOGY, SYDNEY

NSD 2163 OF 2005

BENNETT J
31 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2163 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	AUSTRALIAN BROADCASTING CORPORATION APPLICANT
AND:	THE UNIVERSITY OF TECHNOLOGY, SYDNEY RESPONDENT

JUDGE:	BENNETT J
DATE:	31 JULY 2006
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.The parties forward consent orders or further submissions to my associate within the next fourteen days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2163 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	AUSTRALIAN BROADCASTING CORPORATION APPLICANT
AND:	THE UNIVERSITY OF TECHNOLOGY, SYDNEY RESPONDENT

JUDGE:	BENNETT J
DATE:	31 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Section 7(2) of the Freedom of Information Act1982 (Cth) (‘the Act’) provides that, by reason of the inclusion of the Australian Broadcasting Corporation (‘the ABC’) in Part II of Schedule 2 of the Act (‘the Schedule’), the ABC is exempt from the operation of the Act ‘in relation to the documents referred to in that Schedule in relation to [it]’. The Schedule includes the ABC ‘in relation to its program material and its datacasting content’.  The parties agree that, for the purposes of this appeal, datacasting is not relevant and does not require further consideration.

2. The issue in this appeal from the Administrative Appeals Tribunal is the meaning of the expression in the Schedule and the extent of its application. Each of the grounds of appeal raises that issue. The Tribunal concluded that the Act does not afford the ABC exemption from disclosure of any of the documents sought by the Australian Centre for Independent Journalism, a centre within the University of Technology, Sydney (‘UTS’) (Re Australian Centre for Independent Journalism and Australian Broadcasting Corporation (2006) 88 ALD 771). The Tribunal concluded that the exemption of documents afforded to the ABC does not extend to complaints about program material or to the response of the ABC to those complaints (at [33]).

3. The object of the Act, as set out in s 3, is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by making available information and giving access to information about the operations of departments and public authorities, including the ABC. This right is limited by exceptions and exemptions necessary for the protection of essential public interests (s 3(1)(b); Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 per Lockhart J at 438). Any discretion conferred by the Act is to be exercised as far as possible so as to facilitate and promote the disclosure of information (s 3(2)).

4. Document is defined in s 4(1) and relevantly includes:

   ‘(a)     any of, or any part of any of, the following things:

   (i)any paper or other material on which there is writing;

   …

   (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’

   “Program material” is not defined in the Act.

5. There is no dispute that the materials sought by UTS are “documents” within s 4(1) or that the words “program material” also describe documents within s 4(1).  The documents sought are set out in Annexure 1 to these reasons.  For the purposes of this appeal the parties have approached the documents as if they constitute a single category.  No distinction is drawn by the parties between documents created before broadcasting and documents created after broadcasting.  The documents concern complaints about specific ABC programs and the ABC’s coverage of the Middle East and fall into two broad categories:

   • correspondence with complainants; and
   • internal files and correspondence, board minutes, investigation files and reports and documents in relation to the complaints.

   THE SUBMISSIONS

   “In relation to its program material”

6. The ABC did not seek to argue that the documents sought are “program material” per se.  Rather, the ABC’s submissions support a construction of the expression that would include all documents that relate to program material, including documents created before or after the broadcast of the program and any correspondence about program material.  The ABC’s submissions are to the effect that the exemption is “in relation to documents in relation to its program material”.  The ABC then relies on the principle that “in relation to” is an expression of wide and general import (Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J) and covers all of the documents sought, which are said to exist only because of and arise directly from, the broadcast of ABC program material. The ABC draws a distinction between documents related to its program material, which it says are exempt and documents related to its administrative function, which are outside the scope of the expression.

7. UTS submits that “in relation to” in the context of the Schedule equates to “for” and that the exemption is only for documents which are ABC program material.  UTS’s submissions support a construction that limits the expression to apply only to the “sights and sounds” of a program: the tapes or recordings.  UTS does not submit that the exemption extends only to documents that fall within that aspect of the definition of “document” in s 4(a) that refers to “material”, that is s 4(a)(iv).  Rather, UTS relies on an amalgamation of the definition of “program” in the Broadcasting Services Act 1992 (Cth) (which of course post-dates the Act) and the construction of the expression “Australian content of programs” by Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [22] to submit that program material is limited to ‘the sights and sounds which are capable of transmission to an audience for the purpose of education or informing or even for advertising or sponsorship’.  A script for a program or instructions for the lighting for recording purposes are not, on this basis, included.  UTS submits that all of the documents sought are about program material and, not being documents which are program material, do not fall within the exemption.  UTS does not dispute the breadth of the expression “in relation to” but submits that, construed in context, the limited meaning of “program material” means that “in relation to” extends only to other versions of the program material itself, such as to edited tapes or recordings.

8. For agencies other than the Special Broadcasting Service Corporation (‘SBS’) and the ABC, the word “document” is repeated in the Schedule: ‘in relation to documents’ in respect of certain activities.  For the SBS and the ABC, the entry is ‘in relation to its program material’. UTS contends that the class of exempt documents for the ABC and SBS is defined by reference to nature and content and not to an activity. Where the exemption is for documents in respect of an activity, as for other agencies in the Schedule, it extends to documents received or brought into existence in the course of, or for the purposes of, the carrying on of that activity (s 7(4)). By contrast, UTS submits that where the exemption is defined by reference to the nature and content of the particular documents, it should be read as an exemption “for” those particular documents.

   CONSIDERATION

   “In relation to”

9. Section 7(2) provides that the bodies specified in the Schedule are exempt ‘in relation to the documents referred to in that [Schedule]’. It follows that the subject matter of the Schedule is documents that come within the definition in s 4(1). The Schedule then limits the documents by category. If there were simply categories of documents listed, such as “scripts for programs”, the exemption would be in relation to scripts for programs.

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.

11. The Schedule is headed ‘[a]gencies exempt in respect of particular documents’. For agencies except the ABC and SBS, the entry in the Schedule then describes the particular documents as ‘documents in respect of [a particular activity]’. This provides a further limitation on the scope of the exemption by reference to a particular activity. For example, if the Schedule were to specify “scripts for programs with respect to current affairs”, the exemption would be in relation to documents that fitted that description.

12. Section 7(4) of the Act provides that, 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.’

13. While in some contexts “in respect of” may have a wider meaning than “in relation to” (Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 at 533 per Toohey J; citing Nowegijick v R (1983) 144 DLR (3d) 193 at 200)), in the context of the Schedule “in respect of” has a narrower meaning. That is, “in respect of” is used in the sense of “with reference to” (the Macquarie Dictionary, 4^th ed, 2005 defines “with (or in) respect to” to mean ‘in relation to or reference to’, while the Shorter Oxford Dictionary, 5^th ed, 2002 definition includes ‘[r]elation, connection, reference, regard’).  A sufficient or material connection or relationship is required when “in respect of” is used, rather than a mere direct or indirect relationship when “in relation to” is used (Harris v Commissioner of Taxation (2002) 125 FCR 46 at [68]–[69]). A further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS.

14. A distinction is made between the exemption defined in terms of documents and an exemption defined in terms of an activity. This may also explain the absence of the further reference to “documents” in the entries in the Schedule for the ABC and SBS which do not contain the further reference to an activity.

15. UTS points out that the entry in the Schedule for the ABC does not say “documents in respect of its program material”. That is correct. Nor does it say “for its program material”. The words ‘in relation to’ are used.  The width of that expression is determined by the context in which it appears and a relevant connection is required with the subject (Secretary Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 383).

16. Putting together s 7(2) and the Schedule, for agencies other than the ABC and SBS, the exemption is:

    ‘in relation to the documents’ (s 7(2)) ‘in relation to documents in respect of [the activity] (the Schedule)’.

    For the ABC and the SBS, the exemption is:

    ‘in relation to the documents’ (s 7(2)) ‘in relation to its program material (the Schedule)’.

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 Corporation (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.

    “Program material”

20. UTS ultimately adopted a position that the exemption is only for program material where program material means the recordings and tapes, the “sights and sounds” that are broadcast by television or radio.  The difficulty with this position was illustrated when UTS accepted, during the course of submissions, that the following either were, or could be, program material:

    • 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 found to be ‘documents relating to program material’ and therefore exempt in the Tribunal’s earlier decision in Keane v Australian Broadcasting Corporation at [7] (Unreported, Administrative Appeals Tribunal, 27 May 2004, W93/182 AAT No. 9583);
    • scripts; and
    • technical directions given by a director for the lighting on a particular program.

    Keane

21. Both parties rely on the reasoning in Keane which has not been the subject of relevant further comment by a Court or the Tribunal.

22. The Tribunal expressed doubt about the approach in Keane where “program” and “material” were defined separately.  It considered “program material” to be a composite term but did not explain what that composite term encompassed.  UTS supported that construction.  The Tribunal did accept, however, the reasoning in Keane that the Schedule is not limited to program material and held that it encompassed documents relating to program material in that it extended the exemption to ‘matters such as the intellectual property of [the ABC] in a program’ (at [32]).  No basis for this conclusion was given, nor was an attempt made to explain what criteria were applied.  To the extent that this formed part of the reasons of the Tribunal, neither party has supported such a limitation and there is no basis for it.  The Tribunal stated that it did not ‘see an exemption “in relation to program material” as extending as far as a complaint regarding material in a program and the treatment given to that complaint by [the ABC]’ (at [33]) and categorised all of the documents sought in that category.

23. The Tribunal in Keane considered dictionary definitions of “program” and “material”.  Relevantly, the Macquarie Dictionary defines “program” when used in radio and television as ‘a particular item or production’; the Shorter Oxford Dictionary defines program(me) when used in broadcasting as ‘[a] broadcast presentation treated as a single item for scheduling purposes, being broadcast between stated times and without interruption except perhaps for news bulletins or advertisements’.

24. The meaning of “material” in the Macquarie Dictionary encompasses different concepts, including: ‘the substance or substances of which a thing is made or composed’; ‘any constituent element of a thing’; ‘anything serving as crude or raw matter for working upon or developing’; and ‘information, ideas, or the like on which a report, thesis, etc, is based’.  In the Shorter Oxford Dictionary, it means relevantly ‘[o]f or pertaining to matter or substance’; ‘[f]orming the material or substance of a thing’; ‘[t]he matter of which a thing is or may be made’; and also ‘[i]nformation, evidence, ideas, etc, for use in writing a book or script, drawing a conclusion, etc’.

25. The Tribunal in Keane found that documents which ‘constitute vital steps in the production of a television production program’ and ‘make up important elements in that process’ are within the exemption, that is not only is program material exempted but also documents relating to program material (at [7]).  It drew a distinction between such documents and a letter which related to a change in script writers which was not exempt.

26. UTS submits that, in effect, the exemption is limited by the meaning of “program material” and that this extends only to the sights and sounds.  The ABC made no submission as to the meaning of “program material”, other than that it ought not be limited to documents created before a program is broadcast.  I do not accept that program material is restricted to films or tapes themselves.  In my opinion, it extends at least to the content of the films and tapes.  It has not been disputed that the documents sought relate to the content of ABC programs.  Accordingly, it is not necessary for me to determine the breadth of the application of “program material”.

    Extrinsic material

27. UTS sought to rely on extrinsic material to assist in determining the meaning of “program material” and “in relation to program material”.  The Senate Standing Committee on Constitutional and Legal Affairs, in its Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (Parliamentary Paper No 272/1979) (‘the Report’)) noted that the Bill, expressed to be concerned with freedom of information, refers generally not to information but to documents.

28. The Report stated at [12.13] ‘[p]erhaps the best example of a legitimate use of the power to exempt particular classes of records of an agency is to be found in evidence given to us by representatives of the [ABC]’.  The evidence from the ABC (Submission No. 131, incorporated in the transcript of evidence before the Committee at pages 1244 to 1303) concerned exclusion from access for its “program activities”. The ABC sought exemption for ‘all “documents” brought into existence or acquired by the ABC for the purposes of forming a radio or television program or a part of such a program’ (at 1254).  The program material was described in terms of ‘texts of news bulletins, scripts, sound tapes, videotapes, cinematographic film, graphic displays’ (at 1265).  It is clear from that evidence that, while discs, tapes, micro-film and similar devices were important, the submission was concerned with documents associated with the ABC’s program material.  Exemption was sought in respect of documents ‘which are brought into existence, or are acquired, for the purposes of forming a radio or television program or a part of such a program’ (at 1265).  Another reference in the submission was to ‘documents, as distinct from recordings and films, which come into existence solely because of the programs to which they relate’ (at 1273).

1. The Report contrasted “program material”, in the context of presentation on radio and television, with the ABC’s administrative operation.  It recognised that, in contrast to program material, ‘the public has a right to examine the administrative operation of the [ABC] to ensure it is efficiently and properly conducted at public expense’ (at [12.13]), and observed that documents in relation to the latter category should not be exempt. 

2. The Report is not particularly helpful as the discussion contained in it was not directed to the wording in the Act as promulgated and the context of the Report (see [12.1] to [12.4], [12.13] and [12.14]) makes it clear that it did not come to any conclusion as to those documents within the scope of the expression relevant to the ABC now in the Schedule. The submission of the ABC to the Parliamentary Committee is referred to in the Report only by way of a footnote and does not itself represent Parliament’s intention. However, a construction that extends the exemption beyond the films and tapes is consistent with the extrinsic material.

   CONCLUSION

3. 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.

4. The further consideration is the condition in s 7(2) that an agency is exempt in relation to the documents referred to in the Schedule ‘in relation to them’.  That requires the documents to have a relationship not only to program material but also to the ABC.  Letters of complaint about the ABC’s programs and responses to those complainants on the same subject as well as documents internal to the ABC on this subject are in relation to the ABC.  Indeed, the contrary argument was not advanced by UTS.

5. The parties have not given separate consideration to the documents of Annexure 1, treating them as a single category. On that basis, I would uphold the appeal and make an order that the decision of the Tribunal, so far as it relates to section 7(2) of the Act and the Schedule, be set aside. However, the parties requested that I make no order until they have had an opportunity to consider these reasons. Accordingly, I make no order at this time and direct the parties to submit consent orders or further submissions within fourteen days.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             31 July 2006

Counsel for the Applicant:	C E Adamson SC and E Raper
Solicitor for the Applicant:	Legal Services, Australian Broadcasting Corporation
Counsel for the Respondent:	M Allars
Solicitor for the Respondent:	UTS Legal Services
Date of Hearing:	16 June 2006
Date of Judgment:	31 July 2006

ANNEXURE 1

DESCRIPTION OF DOCUMENTS SOUGHT BY UTS (AS SET OUT IN ATTACHMENT A OF THE RESPONDENT’S SUBMISSIONS)

(a)The complaints database report identifying the 1408 complaints we have identified in the database as being relevant to the FOI request.

(b)The spreadsheet maintained by Radio identifying three relevant complaints.

(c)       The “complaint file” for each of the three complaints referred to in (b).

(d)The spreadsheet maintained by News & Current Affairs identifying 272 relevant complaints.

(e)       The “complaint file” for each of the 272 complaints referred to in (d).

(f)The complaint file for each of the twelve relevant complaints which the Respondent has identified in its Corporate Affairs division.

(g)Internal and external correspondence in relation to complaints for the period from 1 September 2000 to 31 August 2002 in relation to ABC foreign correspondents broadcastings from the Middle East for national news television.

(h)Internal and external correspondence in relation to complaints for the period from 1 September 2000 to 31 August 2002 in relation to Sydney-based 7:30 Report coverage of the Middle East.

(i)Internal and external correspondence in relation to complaints for the period from 1 September 2000 to 31 August 2002 in relation to Four Corners coverage of the Middle East.

(j)Internal and external correspondence in relation to complaints for the period from 1 September 2000 to 31 August 2002 in relation to Foreign Correspondent program coverage of the Middle East.

(k)Internal and external correspondence in relation to complaints for the period from 1 September 2000 to 31 August 2002 in relation to all radio broadcasts about the Middle East (but excluding material held by rural or regional radio stations).

(l)Board minutes and other documents relating to Board discussions about complaints about ABC coverage of the Middle East from 1 September 2000 until 15 September 2004.

(m)Board minutes and other documents relating to Board discussions about complaints made to the Board by Michael Kroger, in the period from September 2000 until he left the Board in 2004, in relation to alleged ABC bias in reporting about the Middle East.

(n)All investigation files regarding the thirty-seven matters identified in Attachment 1 to Nash’s affidavit which were, apparently, complained about by the Australia/Israel and Jewish Affairs Council.

(o)The report of “an inquiry into the ABC’s reporting of the Middle East on Radio News, TV News, Lateline, Late Nite Live, Radio National Breakfast, Background Briefing, Foreign Correspondent, AM, The World Today, and The Religion Report”.  Apparently this report was mentioned in an episode of Media Watch which was broadcast on 13 May 2002.

(p)All documents held by Media Watch in relation to Middle Eastern coverage, as mentioned by Media Watch in its programs.

(q)All investigation files in relation to Richard Alston’s complaints to the ABC, as (apparently) referred to in the episode of Media Watch broadcast on 23 February 2004.