Delagarde Legal Services Pty Ltd and Commonwealth Scientific and Industrial Research Organisation

[2006] AATA 722

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No N2005/1593

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DELAGARDE LEGAL SERVICES PTY LTD

Applicant

And COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date21 August 2006

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Ms G Ettinger
  Senior Member

CATCHWORDS

Freedom of Information – request by Applicant refused pursuant to section 24(5) of the FOI Act on the basis every item related to CSIRO’s commercial activities and that all the documents were accordingly exempt – consideration of CSIRO’s mandate – decision under review affirmed.

Freedom of Information Act 1982, ss 4(1), 7(2), 7(3), 7(4), 24(5) and Part II of Schedule 2 Science and Industry Research Act 1949, ss 8 and 9.

Papps v Australian Postal Corporation (2004) 83 ALD 132
Johnsons Creek Conservation Committee v CSIRO [2000] AATA 1161.
Pye v Australian Postal Corporation  (2004) 87 ALD 204

REASONS FOR DECISION

21 August 2006 Ms G Ettinger, Senior Member     

1. The Applicant, Delagarde Legal Services Pty Ltd (“Delagarde”), made a request pursuant to Freedom of Information legislation to the Commonwealth Scientific and Industrial Research Organisation (“CSIRO”), in relation to its WLAN technology and licensing of patents for CSIRO’s WLAN technology. CSIRO refused Delagarde access to the documents sought on the basis that they related to CSIRO’s commercial activities, and were accordingly exempt pursuant to section 24(5) of the Freedom of Information Act 1982 (“the Act”), taking into account also sections 7(2) and 7(3), as well as Schedule 2 of the Act.

2.       Delagarde applied to the Tribunal for review of the decision of CSIRO, which is the Respondent in these proceedings. At the Tribunal there was argument between the parties as to how the question before the Tribunal should be framed, and as to whether any evidence should be given in relation to CSIRO’s functions and activities. There was agreement between the parties with which I concurred that the documents sought should not be examined, and that the decision had to be made based on the nature of the documents as described in the request by the Applicant.

3.       I decided however that evidence about CSIRO’s activities was necessary to enable me to put the matter in context and decide the issues, and accordingly, Dr D Cooper, currently Acting Research Director of CSIRO gave oral evidence. I also had before me his two affidavits Exhibits R3 and R4 with annexures.

4.       I also has before me statements by Mr P Gunning, solicitor, (Exhibits A1 and R5), with annexures, which included a decision of the United States Court of Appeals for the Federal Circuit in the matter of Intel Corporation and Dell Inc v Commonwealth Scientific and Industrial Research Organisation and Microsoft Corporation, 06-1032, and Hewlett-Packard Company and Netgear Inc v Commonwealth Scientific and Industrial Research Organisation 06-1040 decided 14 July 2006. It was held there that CSIRO could not claim foreign state immunity because of its commercial activities in relation to a US patent.

ISSUE TO BE DECIDED

5. The issue I had to decide was whether, pursuant to section 24(5) of the Act, it was apparent from the nature of the documents as described in the request by the Applicant, that all of the documents to which the request was expressed to relate are exempt documents.

6. Because the decision under review which was made by the Respondent on 31 October 2005 and pursuant to section 24(5) of the Act, relied on a finding that the documents referred to in the request related to CSIRO’s commercial activities, I had to decide whether it is apparent from the nature of the documents as described in the request that all of the documents to which the request was expressed to relate were documents received or brought into existence by CSIRO in the course of, or for the purposes of activities carried on by CSIRO on a commercial basis in competition with persons other than governments or authorities of governments.

7. Pursuant to section 24(5)(b) of the Act, I had also to consider whether it is apparent from the nature of the documents as so described that no obligation would arise under section 22 in relation to any of those documents to grant access to an edited copy of the document (section 24(5)(b)(i).

8.       I am mindful that even if I am satisfied that the relevant exemption applies in full, there is ultimately still a discretion available to the relevant agency or the Minister, and accordingly, to me.

RELEVANT LEGISLATION

9.       The relevant legislation is the Freedom of Information Act 1982, in particular sections 4(1), 7(2), 7(3), 7(4), Part II of Schedule 2 and section 24(5) which follow as relevant.

“4  Interpretation

(1)       In this Act, unless the contrary intention appears:

exempt document means:

(a)       a document which, by virtue of a provision of Part IV, is an exempt   document;

(b)       a document in respect of which, by virtue of section 7, an agency is   exempt from the operation of this Act; or

(c)       an official document of a Minister that contains some matter that does                  not relate to the affairs of an agency or of a Department of State.

7  Exemption of certain persons and bodies

(1)       The bodies specified in Division 1 of Part I of Schedule 2, and a   person holding and performing the duties of an office specified in that                   Division, are to be deemed not to be prescribed authorities for the   purposes of this Act.

(1A)     For the purposes of the definition of agency, a part of the Department of   Defence specified in Division 2 of Part I of Schedule 2:

(a)       is taken not to be included in the Department of Defence (or in any   other Department) for the purposes of this Act; and

(b)       to avoid doubt, is not an agency in its own right for the purposes of   this Act.

(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.

(2AA)   A body corporate established by or under an Act specified in Part III of      Schedule 2 is exempt from the operation of this Act in relation to documents       in respect of the commercial activities of the body corporate.

(2A)     An agency is exempt from the operation of this Act in relation to a document        that has originated with, or has been received from, the Australian Secret    Intelligence Service, the Australian Security Intelligence Organisation, the         Inspector‑General of Intelligence and Security or the Office of National       Assessments, or the Defence Imagery and Geospatial Organisation, the            Defence Intelligence Organisation or the Defence Signals Directorate of the         Department of Defence.

(3)       In subsection (2AA) and Part II of Schedule 2, commercial activities means:

(a)       activities carried on by an agency on a commercial basis in   competition with persons other than governments or authorities of   governments; or

(b)       activities, carried on by an agency, that may reasonably be expected                    in the foreseeable future to be carried on by the agency on a   commercial basis in competition with persons other than governments               or authorities of governments.

(4)       In subsection (2AA) and Part II of Schedule 2, 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.

22  Deletion of exempt matter or irrelevant material

(1)       Where:

(a)       an agency or Minister decides:

(i)        not to grant a request for access to a document on the ground   that it is an exempt document; or

(ii)       that to grant a request for access to a document would   disclose information that would reasonably be regarded as   irrelevant to that request; and

(b)       it is possible for the agency or Minister to make a copy of the   document with such deletions that the copy:

(i)        would not be an exempt document; and

(ii)       would not disclose such information; and

(c)       it is reasonably practicable for the agency or Minister, having regard to                 the nature and extent of the work involved in deciding on and making              those deletions and the resources available for that work, to make   such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

…

24  Requests may be refused in certain cases

…

(5)       An agency or Minister may refuse to grant access to the documents in      accordance with the request without having identified any or all of the      documents to which the request relates and without specifying, in respect of        each document, the provision or provisions of this Act under which that      document is claimed to be an exempt document if:

(a)       it is apparent from the nature of the documents as described in the   request that all of the documents to which the request is expressed to                   relate are exempt documents; and

(b)       either:

(i)        it is apparent from the nature of the documents as so   described that no obligation would arise under section 22 in   relation to any of those documents to grant access to an edited   copy of the document; or

(ii)       it is apparent, from the request or as a result of consultation by   the agency or Minister with the person making the request, that   the person would not wish to have access to an edited copy of   the document.

Schedule 2

Part II—Agencies exempt in respect of particular documents

Division 1

Albury‑Wodonga Development Corporation, in relation to documents in respect of its commercial activities

Attorney‑General’s Department, in relation to documents in respect of commercial activities it undertakes and in relation to documents in respect of commercial activities undertaken by the Australian Government Solicitor

…..

Comcare, in relation to documents in respect of its commercial activities

Commonwealth Scientific and Industrial Research Organisation, in relation to documents in respect of its commercial activities

Department of the Treasury in relation to documents in respect of activities of the Australian Loan Council and in respect of the commercial activities of the Royal Australian Mint

…..”

CONSIDERATION OF THE EVIDENCE AND LEGISLATION

10.     

As already stated above, the application of Delagarde for access to certain documents listed at T3, was refused on the basis that the documents are exempt pursuant to section 24(5) of the Act, and taking into account sections 7(2) and 7(3), as well as Schedule 2 of the Act. Pursuant to Part II of Schedule 2 of the

Act, CSIRO is an exempt agency in relation to documents in respect of its commercial activities. To be exempt, the activities must be carried on by an agency on a commercial basis in competition with persons other than governments or authorities of government or may reasonably be expected to do so in the future.

11. The terms of section 24(5) of the Act make it clear that the refusal to grant access to documents in accordance with a request is justified, not where the exempt character of the documents to which the request is expressed to relate is established by examination of documents, but where that exempt character is apparent from the nature of the documents as described in the request. I am mindful that if the exempt character of even one document to which the request is expressed to relate is in question, then there can be no application of section 24(5) of the Act (Papps v Australian Postal Corporation (2004) 83 ALD 132).

12. Section 24(5) of the Act also permits the Respondent, and therefore the Tribunal, to refuse to grant access to documents without having identified any or all of the documents to which the request relates, and without identifying the provisions in the Act which make the document an exempt document. In that regard I respectfully adopt the views of Senior Member Dwyer as she then was, in Re Papps [40] and [41] which provide as follows:

“40. Thus, Australia Post may only rely on s 24(5) of the Act if it is apparent, from the nature of the documents covered by the request in numbered paragraph (1) of the letter of 27 August 2003, “that all of the documents to which the request is expressed to relate are exempt documents” by virtue of being documents in respect of Australia Post’s commercial activities, bearing in mind the definition of “commercial activities” in s 7(3) of the Act and the effect of s 7(4) of the Act.

41. The request in numbered paragraph (1)* is not expressly restricted to documents in respect of Australia Posts’ commercial activities. It could cover documents in relation to the activities of the Corporate Group summarising alleged crimes involving the letter service or standard postal service. It is therefore necessary to decide whether or not the letter service or standard postal service is conducted by Australia Post as one of its commercial activities. In order to decide that issue, reference must be made to the Australian Postal Corporation Act 1989 (“the Postal Act”) and to the evidence at the hearing”

*I noted that the request in paragraph (1) was as follows:

“I am requesting documents in relation to the activities of the Corporate Security Group, specifically summaries or documents summarising alleged crimes investigated by the group in the last three years and the outcomes of those investigations. …”

13. I note that an exempt document means, (a) a document which, by virtue of a provision of Part IV, is an exempt document; (b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act.

14.     It was not in contention and I was satisfied that the Applicant lodged one request only for information.

15. The Applicant argued that when I consider the nature of the documents as described in the request, it is not at all apparent from the way in which the documents are described that any exemption applies to them. Mr Lloyd submitted at paragraphs 20 – 29 of the Applicant’s Outline of Submissions, for example, that it was not apparent from the requests as described referring to funding for research into WLAN technology or for research that led to the issuance of a patent that they fell to the commercial activities exemption as invoked by the Respondent. He submitted it was not apparent form the nature of the documents as described. He submitted that even if it could be established that the research into the technology was a commercial project, that may not apply to the funding. Mr Lloyd submitted that this uncertainty applied to several of the requests, and that if only one could not be identified from the description of the request as a commercial project, then section 24(5) could not apply.

THE CSIRO

16. I have found it necessary in order to make the correct or preferable decision, to consider the request in context and therefore consider the functions and powers of the CSIRO. The CSIRO was established by section 8(1) of the Science and Industry Research Act 1949, and section 9 is relevant in so far as it details its functions.

“9(1)    The functions of the Organisation are:

(a)       to carry out scientific research for any of the following purposes:

(i)        assisting Australian industry;

…

(iv)      any other purpose determined by the Minister;

(b)       to encourage or facilitate the application or utilization of the results of                    such research;

(ba)     to encourage or facilitate the application or utilisation of the results of                    any other scientific research;

(bb)     to carry out services, and make available facilities, in relation to                  science;

(c)       to act as a means of liaison between Australia and other countries in         matters connected with scientific research;

….

(2)       The Organisation shall:

(a)       treat the functions referred to in paragraphs (1)(a) and (b) as    its primary functions; and

(b)       treat the other functions referred to in subsection (1) as its    secondary functions.”

17. By way of example I noted that section 9(1)(a)(i) indicates that one of the functions of the Organisation is to carry out scientific research to assist Australian industry, and in section 9(1)(b) it is to encourage or facilitate the application or utilization of the results of such research. Section 9(2), mandates that the Organisation shall treat the functions referred to in paragraphs (1)(a) and (b) as its primary functions.

18. Section 9AA(1)(a), (b), and (c), as well as the other sub-sections, indicate that the Organisation has the power to arrange for scientific research or other work to be undertaken and that the CSIRO may join in the formation of a partnership or company. On the basis of the above, and other sub-sections which I have not specifically detailed, I was satisfied that the CSIRO’S functions and powers permit it to engage in commercial activities.

Powers of the Organisation

“9AA. (1) The Organisation has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and, in particular, may:

(a) arrange for scientific research or other work to be undertaken, on behalf of the Organisation, by any person or body;

(b) join in the formation of a partnership or company;

(c) make available to a person, on such conditions and on payment of such fees or royalties, or otherwise, as the Chief Executive determines, a discovery, invention or improvement the property of the Organisation;

…

(e) charge such fees, and agree to such conditions, as the Chief Executive determines for research and other services carried out, or facilities made available, by the Organisation at the request of any person.

(2) The Organisation shall not, without the written approval of the Minister, hold a controlling interest in a company.

…”

19. Mr Lloyd submitted that Dr Cooper’s evidence was not relevant to my decision making. However, I considered that, although I was restricted by section 24(5) of the Act to decide whether it was apparent from the nature of the documents as described in the request that all of the documents to which the request was expressed to relate were documents received or brought into existence by CSIRO in the course of, or for the purposes of activities carried on by CSIRO on a commercial basis in competition with persons other than governments or authorities of governments, I should hear from Dr Cooper.

20.     Accordingly Dr Cooper gave oral evidence, and I also had his affidavits (Exhibits R3 and R4). His evidence was centred around the WLAN project being a commercial project to develop high-speed WLANs as funded by CSIRO under its Priorities Program.  The challenge, he said, was to come up with a way of achieving high-speed data communication within buildings by overcoming the effects, of so-called “multipath” caused by the indoor environment.

21.     The Priorities Program Dr Cooper said, was a commercial venture to fund projects that would have significant applicability in the market place and provide commercial returns, being monetary returns, to CSIRO.  He indicated that CSIRO could sell the technology outright, or licence it, or take equity in a small company using the technology.

22.     Dr Cooper said that when he was the director in 1988, 40% of the revenue for the division came from external sources. He said that everything they did aimed at having a commercial return. The additional funding came from the Commonwealth, he said.

23.     Dr Cooper said that CSIRO was competing with the research laboratories of IBM, Hewlett Packard, Lucent, NCR, Motorola and others, and it aimed to create intellectual property which could be licensed or used in the creation of new companies. He pointed to a US Patent as one of the outcomes, and said that the intellectual outcomes of  Program for Local Area Networks and Services (“PLANS”), were licensed to Radiata Communications Pty Ltd.  Radiata was, he said, an Australian start-up company founded by one of the WLAN inventors, Dr Percival and two Macquarie University professors. He told me that Radiata was the first company in the world to publicly demonstrate a 50Mb/s+ WLAN and was subsequently acquired by Cisco Systems for $A595M. These licenses for the patents and chip design continue to earn royalties for CSIRO he said.

24. I was satisfied from a reading of section 9(i) and in particular of sections 9(1)(a) and 9(1)(b) and 9(2) of the Science and Industry Research Act 1949, that the functions of CSIRO particularly those in sections 9(1)(a) and 9(1)(b) are its primary functions, and that they include commercial functions, I noted that Senior Member Allen held similarly in Johnsons Creek Conservation Committee v CSIRO [2000] AATA 1161.I was satisfied that CSIRO does not have a statutory monopoly on scientific or industrial research.

25. Mr Gunning’s statement, (Exhibit A1), and its voluminous annexures related to litigation between CSIRO and Intel Corporation, Dell Inc, Hewlett-Packard Company and Netgear Inc. It was held by the US Court of Appeals for the Federal Circuit that CSIRO could not claim foreign state immunity because of its commercial activities in relation to a US patent. Mr Gunning submitted that not all of the documents in the Applicant’s request were received or brought into existence in the course of, or for purposes of, the carrying on by CSIRO of its commercial activities, and emphasised that CSIRO had argued in the US proceedings that certain documents related to non-commercial activities. He submitted that it was neither apparent from the nature of the documents to which the FOI request related that no obligation would arise to grant access to an edited copy of the document pursuant to section 22 of the Act, nor was it apparent from the request and discussions, that the Applicant would not wish to have access to an edited copy of the document.

26.     Mr Hanks submitted that the conclusion reached by the US Court that obtaining and asserting a US patent is a commercial activity supported CSIRO’s position in this matter.

27. I have noted the submissions made in regard to the US Court’s findings. They do not however bind me to any extent, and commercial activities may well have a different definition in that context. We are here concerned with commercial activities pursuant to sections 7(3) and 7(4) of the Act.

CONSIDERATION OF THE DOCUMENTS

28. I have already stated that I am satisfied that the functions of CSIRO particularly those detailed in sections 9(1)(a) and 9(1)(b) Science and Industry Research Act 1949, are its primary functions, and that they include commercial functions. The Applicant has made submissions about CSIRO’s functions, and accordingly, I have considered the whole of section 9, noting that it appears from various sub-sections of section 9, that not all of CSIRO’s functions are commercial. I note for example section 9(1)(d) which indicates that CSIRO is “to train and assist in the training of research workers in the field of science and to co-operate with tertiary-education institutions in relation to education in that field”. Whilst that may be a commercial function or lead to commercial functions, it need not. Similarly section 9(1)(e) “to establish and award fellowships and studentships for research …”  may lead to commercial functions but is not a priori a commercial function. However that does not take away from the fact that the CSIRO has commercial functions and that the development and licensing of WLAN technology is part of those commercial functions. 

29. Mr Lloyd submitted that sections 50 and 53 of the Act provide for executive control, and that CSIRO’s activities are accordingly not commercial. Mr Hanks submitted that sections 50 and 53 suggested approval by the Minister for commercial activity, seeking threshold permissions. In the light of consideration of section 9 of the Act, and the functions and powers of CSIRO, I find Mr Hanks’ argument more persuasive.

30.     I must however consider whether it is apparent from the nature of the documents as described in the request that all of the documents to which the request was expressed to relate, were documents received or brought into existence by CSIRO in the course of, or for the purposes of activities carried on by CSIRO on a commercial basis in competition with persons other than governments or authorities of governments.

31.     Returning then to consideration of the documents; I was satisfied the Applicant lodged only one request for information.

32.     The documents sought by the Applicant are at T3, Exhibit R1, (the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975).  The request was as follows: 

“1.       Funding for research into wireless LAN technology including but not limited to      the source(s), amount and restriction(s) on the use of such funding;

2.        Funding for research that led to the issuance of United States Patent No. 5,487,069, including but not limited to the source(s), amount and restriction(s)    on the use of such funding;

3.        Collaboration agreements, including Material Transfer Agreements, between       CSIRO and Macquarie University relating to the development of wireless LAN technology;

4.        Funding for any collaborative program(s) between CSIRO and Macquarie University related to development of wireless LAN technology, including but      not limited to the source(s), amount and restriction(s) on the use of such        funding;

5.        CSIRO’s license of wireless LAN technology to Radiata Communications Pty       Ltd in 1997;

6.        Agreements by and between the Commonwealth of Australia and CSIRO related to wireless LAN technology, United States Patent No. 5,487,069,         and/or patent applications, prosecution, issuance, enforcement and/or           licensing of United States patent No. 5,487,069;

7.        The rights of the Commonwealth of Australia in United States Patent No.   5,487,069, including but not limited to any licensing, enforcement, royalty           and/or use rights;

8.        The rights of Macquarie University in United States Patent No. 5,487,069,            including but not limited to any licensing, enforcement, royalty and/or use           rights;

9.        Funding for CSIRO’s efforts to license United States Patent No. 5,487,069,          including the source(s) and amount of funding for costs incurred in targeting,      negotiating and meeting with potential licensees;

10.      Funding for CSIRO’s efforts to enforce and/or litigate United States Patent           No. 5,487,069, including the source(s) and amount of funding for costs            incurred in the action Commonwealth Scientific and Investigative Research         Organisation v. Buffalo Technology USA, Case No. 2:05-CV-53 (E.D. Tex.).

11.      Attempts to license, and any licenses granted to, U.S. Patent No. 5,487,069;

12.      Attempts to license, and any licenses granted to, any Australian patents    and/or patent applications related to wireless LAN technology, including but        not limited to patent/application nos. AU5180693A1 and AU0666411B2;

13.      Attempts to license, and any licenses granted to, any Japanese patents     and/or patent application nos. JP06296176A2 and JP03438918B2;

14.      Board meetings, minutes and approvals relating to any efforts to license U.S.       Patent No. 5,487,069; and

15.      Board meetings, minutes, and approvals relating to any effort to enforce    and/or litigate U.S. Patent No. 5,487,069.

As set forth in Freedom of Information Act 1982 (Cth), “document” includes any of, or any part 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 produced with or without the aid of any other article or device; (v) any article on which information has been sorted or recorded, either mechanically or electronically; (vi) any other record of information; or any copy, reproduction of (sic) duplication of such a thing; or any part of such a copy, reproduction or duplicate.”

33.     In paragraph 8 of his written closing submissions, Mr Hanks  summarised the request by the Applicant essentially into CSIRO’S development of WLAN technology, licensing that technology, and the steps taken by CSIRO to obtain and exploit patent rights with various countries for that technology. He submitted that the nature of the activities in exploiting the technology was commercial, and that CSIRO was competing with other non-government entities in carrying on business for a profit. He referred to Pye v Australian Postal Corporation (2004) 87 ALD 204, where I noted Senior Member Beddoe, as he then was, held that Australia Post’s property transactions were in the commercial real estate market and a commercial activity with a view to making profits, in competition with persons other than governments. I accept that occurs with certain of CSIRO’s activities, including the WLAN technology.

34. I am mindful that CSIRO is not given a statutory monopoly on scientific or industrial research, noting that Senior Member Dwyer discussed the monopoly in Australia Post in regard to the reserved letter service which she found was not a commercial activity as defined in section 7(3) of the Act, because it was not carried on in competition with persons other than governments or authorities of governments and could not reasonably be expected to be doing so in the forseeable future. (Papps (supra))

35. Mr Lloyd argued first that Dr Cooper’s evidence would be irrelevant, and in the alternative that there were matters not covered in his evidence which would preclude me being satisfied that the documents as requested would all be exempt documents. He referred in particular to funding under the Priorities Program, in particular in relation to the public component, submitting that it was reasonable to infer that there may be documents relating to the public funding which would not fall within the exemption. Mr Lloyd submitted that Dr Cooper mentioned 40% of the funding in his time coming from commercial activities, but did not mention profits. He also submitted that requesting funding from the Government which CSIRO had to do to supplement its income could not be a commercial activity. Mr Lloyd submitted that if any documents relating to the source of funding dealt with other commercial activities, it would be an instance where the document could usefully be edited pursuant to section 22 of the Act. The fact of public funding, he submitted, put the exemption pursuant to section 24(5) into doubt. Accordingly the Respondent had not discharged its onus, and thus the Tribunal could not be satisfied that the conditions for section 24(5) had been satisfied.

36.     I did not accept the Applicant’s argument with regard to funding as it appeared to me from the face of the documents and the whole purpose of developing and marketing WLAN technology and obtaining patents was with a view to commercial activity which was within the functions and powers of CSIRO. I find the fact that part of its funding is through the Government does not alter that. In that regard I noted Dr Cooper’s evidence that CSIRO does not pay direct taxes, but that it does pay GST.

37. Mr Lloyd also argued that there was no evidence in Dr Cooper’s affidavits about any agreements between CSIRO and the Commonwealth, (Requests 6. and 7.) and if there were, they would not be part of CSIRO’s commercial activities. He submitted further that if there were no such agreements then section 24(5) could not be satisfied because it applies only where it is apparent from the nature of the documents as described that the documents are exempt.

38.     I accepted Mr Hanks’ argument in response with regard to agreements with the Commonwealth. I accepted that agreements are part of commercial activity, and the very acts of licensing, exploiting patents and protection of patent rights with regard to the WLAN technology would need to involve agreements.

39. As to markets; I accepted that the market in this area is the market for the rights in the technology, and it was the same market in which Intel, Dell, Hewlett-Packard, Microsoft and others operated in competition with each other. In that regard I noted at DNC-2 annexure to Dr Cooper’s affidavit (Exhibit R3), a declaration of David Bantz filed in the Buffalo litigation where he refers to IBM, its expenditure of $20 million (I assume he meant US dollars), between 1990 and 1994, and the competition in the area of wireless projects. Annexure DCN-1 also detailed developments in LAN technology. The companies I have mentioned and others are the non-government organisations who are CSIRO’s competitors and markets, and contemplated in the definition of commercial activity in section 7 of the Act.

40.     I have considered the request for the documents, and I am satisfied that each of the 15 items relate in their entirety to the developing and exploiting of WLAN technology by CSIRO. I am satisfied from the face of the request made that the documents to which the request was expressed to relate were documents received or brought into existence by CSIRO in the course of, or for the purposes of activities carried on by it on a commercial basis. I am satisfied that those activities were, and continue to be conducted with a view to profit or financial benefit to CSIRO, whose powers and functions provide for  commercial activity, and that these activities are conducted in competition with non- government entities. As seen in the US litigation, these could be Intel Corporation, Dell Inc, Microsoft Corporation, Hewlett-Packard Company and Netgear Inc, and perhaps others.

APPLICATION OF SECTION 22 OF THE ACT

41. The Respondent has submitted that this is not a case where section 22 applies, and where an edited copy of a document could be supplied. Mr Hanks submitted that if it is apparent from the nature of the documents as described in the request that CSIRO is exempt from the operation of the Act in relation to the documents then it can only be apparent from the nature of the documents as described in the request that no obligation would arise under section 22.

42. The Applicant submitted that section 22 of the Act creates an obligation on an agency in certain circumstances to provide documents that have been requested, with deletions.

43. As I am satisfied that each document in full in the request as described in the request is exempt , the application of section 22 of the Act does not arise.

CONCLUSION

44. I am satisfied that it is apparent from the nature of the documents as described in the request that all of the documents to which the request was expressed to relate, were documents received or brought into existence by CSIRO in the course of, or for the purposes of activities carried on by CSIRO on a commercial basis in competition with persons other than governments or authorities of governments. Accordingly the exemption pursuant to section 24(5) of the Act applies.

45.     I exercise the discretion to refuse to grant access to the documents as described in the request.

DECISION

46.     The decision under review is affirmed.

I certify that the 46  preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:          .....................................................................................
  Associate

Date of Hearing  4 August 2006
Date of Decision  21 August 2006
Counsel for the Applicant          Mr S Lloyd
Solicitor for the Applicant           Mallesons Stephen Jaques
Counsel for the Respondent     Mr P Hanks QC
Solicitor for the Respondent     Australian Government Solicitor