Australian Centre for Independent Journalism and Australian Broadcasting Corporation

[2005] AATA 1068

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1068

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/163

GENERAL ADMINISTRATIVE DIVISION		)
Re		AUSTRALIAN CENTRE FOR INDEPENDENT JOURNALISM

Applicant

And AUSTRALIAN BROADCASTING CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date14 October 2005

PlaceSydney

Decision Neither section 7 together with Schedule 2, nor section 24 of the Freedom of Information Act 1982, create any exemptions from the said Act to the Respondent in respect of the documents sought by the Applicant.

(Sgd) M.D. ALLEN
  .............................
  Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – section 7 and section 24 exemptions determined as a preliminary point – whether provision of documents sought by applicant would substantially and unreasonably divert the resources of the respondent  - whether documents sought are exempt from disclosure due to being classified as ‘program material’ or ‘datacasting content’ – held that both exemptions have not been made out.

Freedom of Information Act 1982 ss 7(2), 24 and Schedule 2

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1979) 27 ALR 367

News Corporation Limited v National Companies and Securities Commission (No.4) (1984) 1 FCR 64

Commissioner of Superannuation v Scott (1987) 71 ALR 408

Re SRB and SRC v The Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171

Keane and Australian Broadcasting Corporation (1995) 57 FoI Review 47

R v Brown [1996] 1 AC 543

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602

Repatriation Commission v Vietnam Veterans’ Association of New South Wales  (2000) 48 NSWLR 548

Vice-Chancellor Macquarie University v FM [2005] NSWCA 192

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors (2004) 205 ALR 1

REASONS FOR DECISION

14 October 2005 Senior Member M D Allen

1.      By application made the 8^th day of February 2005, Dominic O’Grady for and on behalf of the current Applicant, made application to the Administrative Appeals Tribunal for review of a decision by the Respondent to refuse access to certain documents requested by it in a letter dated 15 September 2004.

2.      The current Applicant was substituted for Mr O’Grady by Direction of the Tribunal dated 30 May 2005.

3.      Document T1 in the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Act 1975 Act 1975 is the Applicant’s original request. That request refers to “all documents relating to complaints made to the ABC about its coverage of the Middle East including Israel and Palestine from 1 September 2000 until 15 September 2004.” That request has now been refined and a more specific delineation of the class of documents sought appears at paragraph 3 of the affidavit of Ms Kirstin Jane McLiesh which became Exhibit R1 in these proceedings. I do not regard it as necessary for these reasons to set out the classes of documents as listed in Exhibit R1.

4.      The Respondent has resisted disclosure of documents pursuant to the Freedom of Information  Act 1982 (as amended) (“FOI Act”) on two bases, namely the exemptions provided in section 7 together with Schedule 2 to the said Act and section 24 of the FOI Act.  Those particular provisions, so far as are relevant read:   

7 Exemption of certain persons and bodies

“(1)…

(2) 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.

…”

Schedule 2 then reads inter alia:

“Agencies exempt in respect of particular documents

Australian Broadcasting Corporation, in relation to its program material and its datacasting content.”

Section 24 provides:

“Requests may be refused in certain cases

(1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:

(a) in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or

(b) …

(2) Subject to subsection (3) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used:

(a) in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or

(b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used:

(i) in examining the documents; or

(ii) in consulting with any person or body in relation to the request; or

(c) in making a copy, or an edited copy, of the documents; or

(d) in notifying any interim or final decision on the request.”

5.      Because the exemptions claimed would, if upheld, bring these proceedings to a conclusion, the parties agreed that the question of whether the section 7 and section 24 exemptions applied should be determined as a preliminary point.

6.      In passing however, I must comment that I find it ironic that the Respondent who normally could be expected to be insisting upon platitudes such as “the public’s right to know”, should seek exemption in the technicalities of the FOI Act when its own documents are requested. 

7.      At the outset I wish to point out, because of submissions that were made by the Applicant’s representative, that subsection 11(2) FOI Act clearly states:

“Right of access

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access. “

The question before me is one of pure statutory interpretation.

8.      Likewise, as pointed out by the Full Court of the Federal Court in News Corporation Limited v National Companies and Securities Commission (No.4) (1984) 1 FCR 64 at 66, despite ss 3(1) of the FOI Act referring to the object of the FOI Act to extend the right of access to documents, the exemptions in the FOI Act are not to be construed narrowly and the court rejected the adoption of any policy of “leaning” towards disclosure.

9.      There was no dispute between the parties as to the Respondent being an “agency” as that term is defined in s 4 FOI Act and hence subject to the Act.

the section 24 claim

10.     The grounds for this claim were set out in Exhibits R1 and R2. Ms McLiesh was cross-examined upon her affidavit and my impression at the end of that cross-examination was that the times and workload factors referred to in her affidavit by Ms McLiesh are largely “guestimates”.

11.     For example, in subparagraph 8(e), reference is made to 272 identified complaint files. An estimated time of 15 minutes per file to deal with each complaint was apparently calculated by having a staff member access one file and complete a “test run”. One file in 272 is hardly a representative sample.

12.     Paragraph 8(l) refers to minutes of the board of the Australian Broadcasting Corporation. I would have thought that the secretary to the Board would have been able to access Board Minutes expeditiously and that rapid decisions could be made as to exemptions.

13.     As Ms McLiesh conceded in cross-examination, the Respondent does have an “FOI officer”. I would have expected that part of that officer’s work tasks in any duty statement would be the discovery and collation of any documents required pursuant to an FOI request. That officer would then, no doubt, have some degree of expertise in making a decision as to whether part or the whole of any document should be released.

14.     The FOI Act has been in force since 1982 and by now all Commonwealth agencies and authorities should be capable of diverting resources to, and making budgetary provision for, compliance with the FOI Act.

15.     Section 24 refers to “substantially and unreasonably” diverting the resources of the agency from its other operations. 

16.     The word “substantial” is a word calculated to conceal a lack of precision – see Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others (1979) 27 ALR 367 at 382. In Commissioner of Superannuation v Scott (1987) 71 ALR 408 at 413 Fisher and Spender JJ went on to say:

“In our opinion, the tribunal erred in law in directing itself that the word ‘substantially’ meant something more than trivial, minimal or nominal…”

17.     In ReSRB and SRC v The Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at 181, a Tribunal presided over by DP McMahon said:

“The very existence of s 24 means that some limitations must be put upon the objects in s 3 and the general right of access in s 11.”

18.     I acknowledge that to obtain and process the information sought by the Applicant will involve considerable time and effort on the part of the Respondent but there is nothing in the affidavit of Ms McLiesh and particularly following her cross-examination that satisfies me that to undertake the task required would substantially divert the resources of the Respondent from its other operations. Nor do I regard it as unreasonable to require it to do so.

19.     Exhibit R1 states in paragraph 10 that the only practical way the Respondent could complete the task is to employ an additional person at an estimated cost of $17,917.38. The Applicant referred to this sum in its submissions as “not a major amount in the context of the ABC Budget”. The Respondent in its reply did not refer to this submission.

20.     I also note the concession in cross-examination that the Respondent does in fact have an FOI officer. According to the Respondent’s Statement of Financial Performance for the year ended 30 June 2004 as available on its website, a document to which, as an Administrative Tribunal, I find I can have regard, the Respondent’s total revenue from ordinary activities in the year 2004 (including revenue from Government) was the sum of $880,607,000.00.  Against this sum the amount of $17,917.38 is hardly “substantial”.

section 7

21.     As provided in Schedule 2 Part I of the FOI Act, the Respondent is exempt from providing documents “in relation to its Program Material and its datacasting content”.

22.     There is no definition of “Program Material” in the FOI Act nor the Australian Broadcasting Corporation Act1983.

23.     In Keane and Australian Broadcasting Corporation (1995) 57 FoI Review 47, a Tribunal consisting of Senior Members Barnett and Fayle together with Dr Billings held that a development proposal and six “treatments” relating to a television miniseries “The Brides of Christ” were documents relating to program material. In coming to this decision the Tribunal referred to dictionary definitions of the words “program” and “material”.

24.     I have some doubt about the Tribunal’s approach to its defining the words “program” and “material” in that I consider that the term “program material” is a composite term and should be interpreted as such, noting that the significance of individual words is affected by other words and the syntax of whole - see R v Brown [1996] 1 AC 543 at 561 as quoted in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397.

25.     Nevertheless, I accept the correctness of the Tribunal’s reasoning where it states in paragraph 7 of its  reasons for decision:

“The Tribunal, in looking at Part II Schedule 2 of the Act, is not looking at program material but documents relating to program material, which is wider in scope than program material”.

26.     The words “in relation to” were explained by Hill J in Secretary Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 where His Honour said:

“It must, at the outset, be conceded that the expression ‘relating to’ can signify great width of association. Lord Macnaghten in Inland Revenue Commissioners v Maple & Co (Paris) Ltd [1908] AC 22 at 26 said of it: ‘There is no expression more general or far-reaching than that”

Mason J referred, in Fountain v Alexander (1982) 150 CLR 615 at 629, to the expression as being “of wide and general import”, remarking that it “should not be read down in the absence of some compelling reason for so doing.

The width of the association which the expression requires will, however, be dependent upon the context in which it is used: see Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620.”

27.     In Tooheys Ltd (supra) at p 620 Taylor J said:

“There can be no doubt that the expression ‘relating to’ is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used…”

28.     The importance of the context is made clear by contemporary approaches to statutory interpretation. In Repatriation Commission v Vietnam Veterans’ Association of New South Wales  (2000) 48 NSWLR 548 at 575-6 Spigelman CJ said:

“The Australian law and statutory interpretation requires a court to consider context in the first instance, not merely after ‘ambiguity’ is identified” (citation omitted).

Cf Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 at para 39:

“… The observations have no greater force than indicating that the words are capable of extending widely in their dictionary definitions. The contemporary approach to statutory interpretation requires a focus on purpose and context.” (citation omitted)

29.     The High Court referred to this principle of interpretation in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 at 4.

30.     In submissions as to context, the Respondent referred to the Second Reading Speech to the FOI Act and also to the safeguards Parliament has put in place in the Australian Broadcasting Corporation Act 1983 to ensure the independence of the Respondent. Reference was made not only to the Second Reading Speech in the House of Representatives to that latter Act but also to the Royal Charter continuing the British Broadcasting Corporation and the Second Reading Speech to the Australian Broadcasting Commission Bill of 1932.

31.     Caution must be applied when making reference to extrinsic materials such as Second Reading Speeches. As has been pointed out by Callaway JA of the Victorian Court  of Appeal:

“Second reading speeches and explanatory Memoranda are of limited use and are often a distraction. The primary task is always to construe the words of the statute.”

(see paper entitled Judges and Statutes: Journal of the New South Wales Bar Association, Winter 2005 p 25 at p 27”)

32.     In my opinion, when one looks at the exemption granted to the Respondent in Part II to the Second Schedule to the FOI Act in context, remembering it is an exemption to a statute whose objects are to extend as far as possible, the right of the Australian community to access information, the phrase “in relation to its program material” refers to matters such as the intellectual property of the Respondent in a program. The documents sought in Re Keane (supra), being a good example of the type of information to be exempted from disclosure.

33.     I do 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 Respondent.

34.     It follows therefore, that I find that s 7 together with Schedule 2 does not afford to the Respondent a grand of exemption from disclosure pursuant to the FOI Act in relation to the class of documents sought by the Applicant.

35.     As neither s 7 or s 24 of the FOI Act exemptions have been made out, the decision of the Tribunal will be to that effect.   

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         (E.Pope)           .....................................................................................

Associate

Date of Hearing  17 August 2005
Date of Decision  14 October 2005       

Representative for the Applicant    W Bacon, Australian Centre for Independent Journalism

Counsel for the Respondent          C.E Adamson SC with E Raper
Solicitor for the Respondent          ABC Legal Department