Electronic Frontiers Australia Inc v Australian Broadcasting Authority - [2002] AATA 449

CATCHWORDS – FREEDOM OF INFORMATION – Whether Universal Resource Locaters and Internet Protocols of Internet content that is prohibited content or potentially prohibited content are exempt – whether disclosure would, or could reasonably be expected to, have an international adverse effect on the proper and efficient conduct of the ABA's operations – decision affirmed.

Freedom of Information Act 1982 ss. 3, 4, 11, 12, 13, 24, 24A, 37, 40, 41, 43 and 112
Broadcasting Services Act 1992 ss. 3, 4, 5, 40, 158, 159 and 216B, Schedule 5, Clauses 1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 to 21, 24, 24A, 27, 30, 40, 58, 59, 60, 62, 63, 66, 68, 69, 70, 71, 76, 79, 82, 83, 85, 92, 94 and 95
Broadcasting Services Amendment (Online Services) Act 1999
Crimes Act 1914 s. 85ZE
Classification (Publications Films and Computer Games) Act 1995 ss. 12 and 27
Censorship Act 1996 (WA) ss. 81, 99, 101, 102 and 105
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) s. 24
Classification (Publication, Films and Computer Games) Enforcement Act 1995 (Tas) ss. 71, 72 and 74
Classification of Publications, Films and Computer Games Act (NT) ss. 50Z, 50ZA and 50X
Classification (Publication, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss. 56, 58 and 59

Attorney-General's Department v Cockcroft (1986) 64 ALR 97
Re Bayliss and Department of Health and Family Services (AAT 12277, 10 October, 1997)
Re Connolly and Department of Finance (1994) 34 ALD 655
Re James and Australian National University (1984) 2 AAR 327
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 16 AAR 28
Re Booker and Department of Social Security (AAT 6189, 13 September 1990)

DECISION AND REASONS FOR DECISION [2002] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q2000/979
GENERAL ADMINISTRATIVE DIVISION     )

ReELECTRONIC FRONTIERS AUSTRALIA INC.
Applicant

AndAUSTRALIAN BROADCASTING AUTHORITY
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
  Mr I R Way (Member)
Date:  12 June, 2002
Place:  Brisbane

Decision:The Tribunal affirms the decision of the respondent dated 6 September, 2000 affirming its earlier decision dated 21 July, 2000

S A FORGIE
Deputy President

REASONS FOR DECISION

On 18 October, 2000, the applicant, Electronic Frontiers Australia Inc ("Electronic Frontiers"), applied for review of a decision of the respondent, the Australian Broadcasting Authority ("ABA") dated 6 September, 2000 affirming a decision dated 21 July, 2000 to refuse access to certain documents under the Freedom of Information Act 1982 ("FOI Act").

Electronic Frontiers' Executive Officer, Ms Graham, represented it at the hearing and Ms Campbell represented the ABA. The documents lodged pursuant s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with affidavits of Ms Andree Margaret Wright (the Director of Policy and Content Regulation at the ABA) and of Mr Richard James Fraser (the acting Manager of the Online Services Content Regulation Section of the ABA) and the Guidelines for the Classification of Films…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] AATA 449
Decision Date: 12 June 2002

CaseChat Overview and Summary

Electronic Frontiers Australia Inc (EFA) brought an application to the Federal Court of Australia seeking judicial review of a decision by the Australian Broadcasting Authority (ABA) concerning its regulation of Internet content. The primary issue before the Court was whether the ABA's regulatory scheme for online content was compliant with the Broadcasting Services Act 1992 (Cth) (the "Act"). The Court was tasked with determining if the ABA's approach to monitoring and regulating Internet content was consistent with the legislative framework established by the Act and its amendments.

The Court examined the statutory provisions and the regulatory scheme introduced by the Broadcasting Services Amendment (Online Services) Act 1999. It was crucial to assess whether the ABA's powers and functions, as outlined in the Act, were being exercised within the scope of the legislative intent. The Court considered the objectives of the regulatory scheme, particularly the self-regulatory model within a legislative framework, and whether the ABA's actions aligned with these objectives. Additionally, the Court scrutinized the definitions and scope of terms such as "ISP" and "Internet carriage service" to understand the extent of the ABA's regulatory reach.

The Court concluded that the ABA's regulatory scheme was consistent with the Act. It found that the ABA's approach to monitoring and regulating Internet content was within the powers granted to it by Parliament. The Court held that the ABA's functions and powers, as specified in the Act, were being exercised in accordance with the legislative intent, particularly regarding the self-regulatory model. The Court also determined that the definitions and scope of key terms were correctly applied by the ABA in its regulatory activities.

As a result, the Court dismissed the application by EFA for judicial review of the ABA's decision. The Court upheld the validity of the ABA's regulatory scheme for Internet content, affirming that the ABA's actions were in line with the legislative framework established by the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Internet content may be located and access gained to it in a number of ways. The first is to enter the Internet content's URL, when it is known, in the address window of the browser software. For example, entry of in the address window gains access to a page of text from the ABA's web site explaining the co-regulatory scheme for Internet content to be displayed. Entry of gains access to a AAT's decisions. The second means of locating and gaining access is through means of a search engine. Knowledge of the URL is not required if a search engine is used. Search engines include "Yahoo!", "Alta Vista" and "Google". Depending on the structure of the search engine, Internet content may be searched by reference to text in the body of a page, the title of a page or the name of a site. Among its other responsibilities, the ABA is responsible for monitoring the Internet Industry. That responsibility is given by the Act (ss. 5(1)(a) and see also s. 158(n)) among whose objects are: To enable the ABA to carry out its responsibility, Parliament has given it a range of functions and powers. They are found in the Act (ss. 158 and 159). In relation to the Internet Industry, they were given to the ABA when amendments to the Act were effected by the Broadcasting Services Amendment (Online Services) Act 1999 ("Amendment Act"). Those amendments came into operation on 16 July, 1999. In exercising its functions and powers, the ABA is required to use them in a manner that, in its opinion, will: The Amendment Act introduced a regulatory scheme based upon a model of Internet industry self-regulation within a legislative framework. There are three purposes that regulation is intended to achieve. These were set out in s. 4(3) of the Act: The regulatory scheme regarding Online services is set in Schedule 5 to the Act (s. 216B). Clause 1 of that Schedule sets out the three components comprising the scheme. The first regulates ISPs and Internet content hosts in Australia in relation to Internet content but does not impose any obligations upon the producers of content or the persons who upload content or who have access to content. The second comprises s. 85ZE of the Crimes Act 1914 ("Crimes Act") and State and Territory laws which impose obligations on producers of content and persons who upload content or who have access to content. The third comprises "a range of non-legislative initiatives" that are directed towards monitoring content on the Internet and educating and advising the public about content on the Internet. Before looking at the first of the three components in a little more detail, the terms used in Schedule 5 require some explanation. For the purposes of the Act, an ISP is a person who "… supplies, or proposes to supply, an Internet carriage service to the public …" (cll. 3 and 8(1)). An "Internet carriage service" means a "… listed carriage service that enables end-users to access the Internet" (cl. 3). What is meant by "supply to the public" is set out in clause 9:

Ratio Decidendi

Legal Principle Established

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