Encel and Secretary, Department of Broadband, Communications and the Digital Economy - [2008] AATA 72

CATCHWORDS – FREEDOM OF INFORMATION – charges – estimate of charges - whether to reduce or not impose charges – matters to be taken into account – whether fact decision on request yet to be made influences those matters – distinguishing matters relevant to whether request should be granted and those relevant to imposition or reduction of charges – whether processing request and provision of access to any documents as a result would be in the public interest – relevance of information on similar subject already in public domain - decision set aside and substituted.

Broadcasting Services Act 1992 cl 64, Schedule 4
Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000
Freedom of Information Act 1982 ss 4(1), 11(2), 15(2)(e), 29, 29(5), 30A, 55(1)(d), 66(2) and 94
Freedom of Information Act (US)
Freedom of Information (Fees and Charges) Regulations ss 3, 4, 5, 6, 8, 9, 10, 11, 12 and 14
Television Broadcasting Services (Digital Conversion) Bill 1998
Television Licence Fees Act 1964

Cashman and Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Cazalas v US Department of Justice 709 F 2d 1051 (1983)
Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516
O’Sullivan v Farrer (1989) 168 CLR 210
Peatling v Department of Employment and Workplace Relations [2007] AATA 1011

Re Australian Privacy Foundation and Attorney-General’s Department [2005] AATA 1204

Re Herald & Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251
Re Lianos and Secretary, Department of Social Security (No 2)(1985) 9 ALD 43
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393
Re Shahin Enterprises Pty Ltd and Registrar of Trade Marks and Exxon Mobil Oil Corporation (2003) 76 ALD 272 [2003] AATA 765
Re van de Wiel and Civil Aviation Safety Authority (2006) 93 ALD 163
Re WAJ and Commonwealth Ombudsman (No 2) (1999) 53 ALD 700
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

DECISION AND REASONS FOR DECISION [2008] AATA 72

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2007/18
GENERAL ADMINISTRATIVE DIVISION )
Re:ALEX ENCEL
Applicant

And:SECRETARY, DEPARTMENT OF BROADBAND, COMMUNICATIONS AND THE DIGITAL ECONOMY
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  25 January 2008
Place:  Melbourne

Decision: The Tribunal:

1.sets aside the decision of the respondent dated 10 August 2006; and
2.substitutes a decision that:
the charges imposed in respect of the processing of the request and the provision of any access to any documents as a result are not to be imposed except in so far as they relate to documents already available to the public through other means.
SA Forgie

Deputy President
REASONS FOR DECISION

Under the Freedom of Information Act 1982 (FOI Act), Mr Alex Encel asked what is now the Department of Broadband, Communications and the Digital Economy (Department), for access to documents revealing, in broad terms, the Commonwealth Government’s expenditure on supporting digital television and simulcasting as a global amount and as separate amounts addressed to each of digital and analogue television and the projected costs of continuing to support both in the future. Mr Encel paid the appropriate application fee. The Department is yet to make a decision whether or not it will grant his request for access.

It did, though, decide that Mr Encel was liable to pay a charge in respect of his request and in respect of the provision of access under it. It made an estimate of those charges, advised him of it and asked that he pay a deposit of 25% amounting to $157.53. Mr Encel asked that the charges be reduced on the basis that giving access to the documents he requested is in the general public interest or in the interest of a substantial section of the public. After balancing the considerations in s 29(5) of the FOI Act, I have decided that charges should not be imposed in respect of the processing of the request and the provision of any access to any documents as a result unless the documents identified in that process are already available to the public through, for example the Department’s or another agency’s website.

THE REQUEST and ESTIMATE OF CHARGES

On 11 May 2006, Mr Encel sent the Department $30 in payment of the application fee together with a request for access to

“… information in whatever form it is available [regarding]:
…
1)The total costs of Government expenditure to the closest practical time involved with supporting digital TV and simulcasting. Apart from direct financial assistance this includes support in terms of indirect contributions made such as licenses being forgiven, inquiries etc. This is to cover commercial and non-commercial participants.
2)The most recent total costs per annum of supporting (on the same terms as above) the following provided separately:
a.Analog TV
b.Digital TV

3)The projected costs until closedown of analog …”.[1]

[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 15

There was some email discussion between Mr Encel and the Department and, as a result of that, the Department excluded from the scope of his request draft versions of documents where a final version is available, multiple sources of the same information, information relating to costs regarding departmental staffing and overheads other than consultancy costs and the Australian National Audit Report on Management Conversion to Digital Broadcasting.

The Department identified seven groups of documents relating to Mr Encel’s request and advised him of them in a letter dated 9 June 2006:
“(a) extracts from explanatory memoranda accompanying digital television legislation that discusses costs (6 pages);
(b)briefing regarding payments made to regional and remote broadcasters under the Regional Equalisation Plan (2 pages);
(c)a spreadsheet comparing ABC and SBS digital funding and analogue funding (1 page);
(d)spreadsheets setting out simulcast costs for the ABC and SBS (2 pages);
(e)a spreadsheet setting out payments made to reimburse national broadcasters (1 page);
(f)departmental purchase orders detailing payments for consultancies regarding digital television issues (14 pages); and
(g)invoices and other correspondence in relation to consultancies (4 pages).”[2]
[2] T documents at 19

The letter went on to advise that a decision had been made that Mr Encel was liable to pay a charge in respect of processing his request. An assessment of the work involved in the processing had been made and the charges estimated. The estimate was presented in this form:[3]
[3] T Documents at 23

BASIC DATA ESTIMATE
Number of relevant files	20
Number of relevant pages *See Note below	30
Number of relevant documents	25
Number of exempt pages	0
Number of pages released with deletions	4
Number of third parties to consult	6
TASK	TIME (in hours)	COST @ $15 per hr
Search and retrieval @ 10 mins per file	3.33	$50.00
Search files and tag relevant pages (45 mins average per file)	15.00	$225.00
preparing schedules detailing all relevant documents (1 hour per 10 documents)	2.50	$37.50
Search and Retrieval Subtotal	20.83	$312.50
COST @ $20 per hr
examine relevant pages for decision making (5 mins per relevant page)	2.50	$50.00
exempted pages (5 mins extra per page).	0.00	$0.00
pages released with deletions (10 mins extra per page)	0.67	$13.33
consult third parties (2 hours per consultation)	12.00	$240.00
preparation and notification of decision (4 hours per 250 relevant pages) – NB if several exemptions are involved, further time may be required.	0.54	$10.88
*Note: Where there are a large number of duplicate/similar documents or pages it will not be appropriate to allow the same amount of time for each succeeding document. A reduction in time or document or page numbers should be made to take account of this.
Examine, Consult & Preparation Subtotal	$15.71	$314.21
PAGES	COST @ 10c a page
Photocopies of estimated released documents (including those with deletions)	34	$3.40
Packaging and postage – actual cost	N/A
Photocopying & Postage Subtotal	$3.40
ESTIMATED TOTALS
NUMBER OF RELEASED PAGES	30
TIME (in hours)	36.54
TOTAL COST	$630.11
DEPOSIT REQUIRED (if over $25)	$157.53

THE CONTENTION THAT THE CHARGES NOT BE IMPOSED

On 15 June 2006, Mr Encel asked that the charges be reduced on the basis that access to the documents he had requested is in the general public interest for the following reasons:
“1. It concerns a substantial amount of government expenditure that may prove unnecessary plus the potential realisable value of a public asset currently under government management.
2.A ration decision on the most appropriate closedown sate for analogue cannot be made without clearly knowing the cost incurred each year to maintain analogue transmission.
3.The Age recently ran a large article [one of three from me] because of the interest being generated on the subject. This Article is attached.^[[4] As a result of these articles appearing I have received many comments from the public both by phone and e-mail and letters expressing their interest in the subject. The ABC program that broadcast my opinions nationally and their web site received comments from the public on the matter… Judging from the reaction via both media, the public are expressing a lot of interest.
4.Others certainly regard such information as fundamental to sensible decision making. After they read the article I was asked by the international company doing consultancy work on the introduction of digital TV for South Africa to provide them with advice and to make myself available for discussions.
5.My 3 billion dollar ballpark estimate of the costs of maintaining the simulcast until the likely closedown period under present policies may be incorrect in either direction. Whatever the information provided might reveal I still expect the all up costs to be measured in billons.
However with the required information I can amend my 3 billion-dollar estimate accordingly. This will make a figure already in the public arena more accurate.”[5]
[4] In that article, published on 8 June 2006, Mr Encel argued that the Government should provide, free of charge, a reliable digital set-top box for each Australian television not already equipped to receive digital transmission. He estimated the cost to be $150 million compared with an estimated cost of $3 billion to maintain analog transmission until what will be, in his view, 2015 rather than 2009 as suggested by the then Government: T documents at 29.
[5] T documents at 27-28

In a letter that included a document dated 28 June 2006 setting out its reasons, the Department advised Mr Encel of its decision to impose the “processing charge without reduction”.[6]

[6] T documents at 31-38

LEGISLATIVE FRAMEWORK

Subject to its provisions, the FOI Act provides that every person has, in accordance with its provisions, a legally enforceable right to obtain access to a document in the possession of an agency or a Minister. An agency includes the Department.[7] One of the provisions with which an applicant must comply is s 15. It requires a request to be in writing and to specify certain information as well as to “be accompanied by the fee payable under the regulations in respect of the request.”[8] Section 4(8) provides that there is “an application fee in respect of the application” when regulations made for its purposes declare that an application fee is applicable in respect of an application under s 15(1).
[7] FOI Act, s 4(1)
[8] FOI Act, s 15(2)(e)

Deciding applicant has a liability to pay a charge

Section 29(1) of the FOI Act is concerned with charges and it is clear from the opening words that a distinction is being made between them and an application fee. An application fee is not the subject of s 29. Section 29(1) provides that:
“Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge (not being an application fee) in respect of a request for access to a document, or the provision of access to a document, the agency or Minister must give to the applicant a written notice stating:
(a)that the applicant is liable to pay a charge; and
(b)the agency’s or Minister’s preliminary assessment of the amount of the charge, and the basis on which the assessment is made; and
(c)that the applicant may contend that the charge has been wrongly assessed, or should be reduced or not imposed; and
(d)the matters that the agency or Minister must take into account under subsection (5) in deciding whether or not to reduce, or not impose, the charge; and
(e)the amount of any deposit that the agency or Minister has determined, under the regulations, that the applicant will be required to pay if the charge is imposed; and
(f)that the applicant must, within the period of 30 days, or such further period as the agency or Minister allows, after the notice was given, notify the agency or Minister in writing:
(i)of the applicant’s agreement to pay the charge; or
(ii)if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both – that the applicant contends, giving the applicant’s reasons for so contending; or
(iii)that the applicant withdraws the request for access to the document concerned; and
(g)that if the applicant fails to give the agency or Minister such a notice within that period or further period, the request for access to the document will be taken to have been withdrawn.”

Section 94 provides that the regulations may make provision for or in relation to the making of charges “… in respect of requests for access to documents or in respect of the provision of access to documents …”.[9] Regulation 3(1) of the Freedom of Information (Fees and Charges) Regulations (Regulations). It provides that, where an applicant has made a request for access to a document, the Department:
“… may make a decision whether the applicant is liable to pay, in respect of the request or in respect of the provision to the applicant of access to the document, any of the charges applicable under these Regulations, other than the application fee.”[10]
[9] FOI Act, s 94(1)(a)
[10] Remission of the application fee is the subject of s 30A of the FOI Act.

Where a charge is levied, it must be paid before the Department grants access to the requested documents.[11] They must be paid within 30 days[12] unless the applicant contests the amount of the charge or its imposition.
[11] Regulations, r 11
[12] FOI Act, s 29(1)(f)

Documents in respect of which charges and fees not applicable

The effect of rr 4, 5 and 6 is that requests for certain types of documents and the provision of access to those certain types of documents will not generally attract either a fee or a charge. The types of documents are those containing information relating to a claim for, or a decision in relation to, the payment to the applicant of a benefit under the Seamen’s War Pensions and Allowances Act 1940, the Social Security Act 1991, the Student Assistance Act 1973 or the Veterans’ Entitlements Act 1986 or of a “… payment of a like nature the purpose of which is to provide income support to persons of inadequate means.”[13]
[13] r 6(1)

Assessing the charge applicant is liable to pay

If the Department decides that an applicant is liable to pay a charge, then, except in those instances where rr 8, 9 or 10 applies, the charge is payable by the applicant in the amount or at the rate fixed by, or in accordance with, the Schedule to the Regulations.[14] Regulations 8, 9 and 10 are concerned with liability for charges where access may be provided in more than one form, instances in which charges based on estimates may be fixed and readjustment of liability for charges based on estimates.
[14] r 3(2)

Subject to those qualifications and to the Regulations generally, the charges applicable in respect of a request for access to a document are those set out in Part I of the Schedule to the Regulations.[15] Those applicable in respect of the provision of access to a document to which a request relates are those set out in Part II of the Schedule.[16]
[15] r 4(a)
[16] r 4(b)

Estimating the charges in some cases

Regulation 9(1) applies to the situation in which an agency or Minister has decided that the applicant is liable to pay a charge in respect of a request for access to a document but has not yet taken all or any of the steps necessary to make a decision on the request. It permits the agency or Minister to fix, as the amount of the charge, the amount that would be the amount of the charge if it or the Minister had taken all steps necessary to enable a decision to be made on the request. That amount is assessed according to the Schedule to the Regulations.

Regulation 9(2) is to similar effect in relation to the provision of access to a document. Regulation 9(3) is concerned with the situation in which an applicant is given access to a document in the form of an opportunity to inspect it under the supervision of an officer and the agency or Minister decides that the applicant is liable to pay a charge in respect of the period of supervision. The charge is based on the time that the agency or Minister considers a reasonable time for inspection.

Readjusting liability for charges where an estimate of charges has been made

Regulation 10 applies where an agency or a Minister has estimated the charges under rr 9(1), (2) and (3) and one of three things happens. The first of those three things is that a charge has been estimated in respect of a request and the agency or Minister has made a decision on the request. The second and third both relate to estimates of charges in respect of the provision of access to a document and either the agency or Minister has taken all steps to give the applicant access to the document requested or the applicant has had access. If, in any of those three circumstances exist, the charge does not equal the amount that, but for r 9, the applicant would have had to pay under the Regulations (the prescribed amount), the agency or Minister must fix the amount of the charge at an amount equal to the prescribed amount. That is the effect of r 10(1).

Where an agency or Minister decides not to grant a request for access to a document, the agency or Minister must not fix an amount in respect of a charge under r 10(1) unless it is an amount less than the amount fixed in respect of the charge in accordance with rr 9(1), (2) and (3).[17]
[17] r 10(2)

Deposits

Where a decision has been made that an applicant is liable to pay a charge, in respect of a request or in respect of the provision of access to a document to which the request relates and the amount of the charge or an estimate of the charge exceeds $25, the Department may, in the circumstances that exist in this case, decide whether an applicant is required to pay a deposit on account of them. Where the charge is or is estimated to be between $25 and $100, the amount of the deposit must not exceed $20.[18] Where the charge is, or estimated to exceed $100, the amount of the deposit must not exceed 25% of that amount.[19]
[18] r 12(2)(a)
[19] r 12(2)(b)

If an applicant pays a deposit, no part of it may be refunded to him or her unless a refund is required to comply with a decision to reduce the charges either in whole or in part. That is the effect of r 14.

A decision to reduce a charge or not to impose a charge

Section 29(4) provides that:
“Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed.”

I note that s 29(4) makes no reference to the possibility that the applicant may contend that the charge has been wrongly assessed and yet reference is made to that possibility in s 29(1)(f)(ii) and it is a reference that is quite separate from that to a contention that the charges should be reduced or not imposed. No express reference is made to a possible contention that the charges have been wrongly assessed in any of the other provisions of s 29. Perhaps s 29(4) is predicated on an assumption that an applicant would calculate the charges for him or her self and would only raise an incorrect assessment in connection with a contention that the charge should be reduced and not otherwise. If that were so, there would be no need to make any reference to a wrong assessment. That interpretation would be consistent with s 55(1)(d), which permits an application to be made to the Tribunal for review of “a decision under section 29 relating to imposition of a charge or the amount of a charge”. I merely note that this is so and will not consider whether it has any ramifications for to do so is not relevant to this case.

Returning to the power given to the Department to reduce or not to impose a charge, s 29(5) guides it in determining an applicant’s liability by providing that:
“Without limiting the matters the agency or Minister may take into account in determining whether or not to reduce or not to impose the charge, the agency or Minister may take into account:
(a)whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and
(b)whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public.”

When the agency of Minister must make a decision when charge contested

When an applicant has contended that the charge is wrongly assessed or should not be imposed, s 29(6) provides that the agency or Minister must take all reasonable steps to enable an applicant to be notified of a decision. In any event, the agency or Minister must do so within 30 days of the applicant’s notifying of the contention. If the agency or Minister should fail to do so, the agency or Minister is taken to have made a decision that the charge payable is the amount in the preliminary assessment.

THE EVIDENCE

The witnesses

Since April 2006, Mr Simon Pelling has been acting as the Chief General Manager, Content and Media, of the Department. Among his responsibilities in that position are those relating to the regulatory framework for converting television broadcasting to digital. Mr Pelling had previously worked on the development of the original digital television regulatory framework in the late 1990s and again from 2003 as the General Manager of the Digital Broadcasting Branch in the same Department.

Ms Margaret Jean Simons is a freelance author and journalist who is a Visiting Fellow at the Institute of Social Research, which is part of the Swinburne University. In that role, she is researching journalistic applications of new media. She has written seven books, including both fiction and non-fiction, and regularly has her articles published. One aspect of her work is to report and commentate on the media including the introduction of digital broadcasting in Australia. She writes a media commentary for Crikey.com.au, which has approximately 14,000 subscribers and for Creative Economy Online, which is an internet based policy newsletter run by the Institute of Social Research at Swinburne University. In the past, Ms Simons has written a monthly column on media issues for The Age. Penguin recently published her book entitled, The Content Makers – Understanding the Media in Australia.

Professor Francesco Giovanni Papandrea is the Professor of Communications at the University of Canberra. Mr Terry Lane is a journalist and Mr Short is also a journalist. Mr Encel produced written evidence from each of them.

The public interest in digital broadcasting

Ms Simons said that the introduction of digital broadcasting is one of the most important issues in current media policy. In her view, there is a paucity of reliable costing information on the public record. She said that she has been aware of the position taken by Mr Encel regarding the costs of the then Government’s policy on the introduction of digital broadcasting and has reported on them. In addition, she has written to the office of the then Minister for a response to his claims.

Ms Simons considers that:
“… it is significant that, whether or not Mr Encel’s claims are correct, the Government either cannot or does not wish to rebut them. I have been left thinking that either Mr Encel is correct, or else that the costing that should have been done by Government has not been done. However, there is not enough information on the public record for me to draw firm conclusions.
I think there is a clear public interest in getting more information about this crucial and contentious area of public policy into the public realm, so that various alternative policy approaches can properly be debated.”[20]
[20] Exhibit A at [6]-[7]

Professor Papandrea said that it is his:
“… assessment that there is a public interest in the publication of information on the cost and benefits of simultaneous transmissions of television signals in both analog and digital format. Without such information it is not possible to assess whether the government’s digital television policy is generating a net benefit to society and whether alternative policy options would be likely to make more efficient use of public resources such as the radio frequency spectrum.”[21]
[21] Exhibit A

Mr Short said in his affirmation that the “… evolution of digital TV in Australia is self-evidently a matter of public interest and ought to be fully debated.”[22] Mr Lane had the same view but developed it in his affidavit. He said that he supported Mr Encel’s application request under the FOI Act and gave his reasons for doing so:
“2.      … This information is in the public interest and ought to be released in order that the public might be informed of the situation and in a position to participate fully in the political arguments that are bound to occur about the timing and cost of switching off the analogue system.
3.        I believe that witholding [sic] the requested information cannot be justified on either national security or commercial grounds and as it bears on the considerable imposition of citizens when they are forced to purchase digital television equipment we are all entitled to be fully informed.
4.        If the cost of maintaining both analogue and digital systems simultaneously is shown to be greater than the cost of providing digital receivers to those households that do not have them then there is no justification for continuing to underwrite the television networks’ dual transmissions, occupying valuable space in the broadcast spectrum that could be used for other purposes and, in the process, generate revenue for the Commonwealth.”[23]
[22] Exhibit A
[23] Exhibit A

The cost to Government of the conversion to digital television

Mr Pelling said that the conversion to digital television in Australia involves the following costs to the Commonwealth Government:
“5.1 direct financial assistance to regional commercial broadcasters under the Regional Equalisation Plan through licence fee rebates and grants where relevant; and
5.2Government contributions towards the capital costs of the national broadcasters in converting to digital TV and towards their digital distribution and transmission costs.”[24]
[24] Exhibit 1 at [5]

The Government has also provided funding to the national broadcasters for their contribution to the interference management scheme related to the introduction of digital services. It provides no direct financial assistance or direct funding to metropolitan commercial television broadcasting licensees. It does, however, lend spectrum to free to air television broadcasters, both commercial and national, during the simulcast period. Those television broadcasters must return that spectrum to the Commonwealth after the switch over from analogue to digital.[25]
[25] Exhibit 1 at [5]

In November 2006, the Government announced a Digital Action Plan to facilitate the conversion from analogue to digital television and it may incur some costs as a result, Mr Pelling said. It has also agreed to contribute some funds to the establishment of Digital Australia as well as for some work of the Australian Communications and Media Authority (ACMA).

As at April 2007, Mr Pelling said, the Department had not developed aggregate figures regarding the total of the direct and indirect cost to Government of the switchover from analogue to digital television. Furthermore, the costs and benefits of the switchover depend on a range of factors but those factors were yet to be identified and analysed. They would include factors such as the value of the spectrum made available to by the eventual closure of the analogue television system. Further consideration may be given to them in the context of the Digital Action Plan.[26]
[26] Exhibit 1 at [9]

The public interest

In his first affirmation, Mr Pelling set out a detailed passage related to the factors that he considered to be relevant to the public interest:
“12. I have examined the documents described in paragraph 6^[[27]] above in the context of reaching my 10 August decision [not to reduce or not to impose the processing charge]. The documents contain information concerning the costing of certain limited aspects of digital television conversion. The documents do not provide a complete picture of digital television costs or digital conversion costs. I do not believe the information in the documents, such as payments for consultancies regarding digital television issues, concern matters of significant public interest. Given the nature of the documents, and the apparent intention of the applicant to provide aggregated figures, I do not consider that there is a reasonable likelihood that the applicant would make the particular documents available to the public.
13.I believe that the applicant seeks the information in order to assist him to put together aggregate figures representing the total costs of digital conversion. I consider that the information in the documents cannot be used in this way because of the limited and incomplete nature of the information sought by Mr Encel, and the series of documents located will not cumulatively provide that level of detail.
14.There are a range of documents that deal with aspects of the costs of digital conversion that are available to the public in relation to costings for some aspects of digital conversion. Such documents include budget papers, an ANAO [Australian National Audit Office] report entitled ‘Report on Management of Digital conversion – Australian Broadcasting Corporation Special Broadcasting Service Corporation’, a discussion paper entitled ‘Meeting the Digital Challenge: Reforming Australia’s media in the digital age’, various documents relating to legislation and explanatory memoranda. I understand that the applicant has been provided with copies of these documents free of charge as well as documents relating to Government expenditure on the ABC and SBS, support for regional broadcasters and other administrative matters.
15.I believe the information contained in the public documents already available to the applicant provides a range of additional information to that in the documents described in paragraph 8^[[28]] above. However, considered together, it is still unlikely that the information would provide a complete or comprehensive picture of the cost of digital conversion, even if combined with the information that has already been provided. As noted above, there is a range of information which is not able to be determined at present, which will influence the overall costs and benefits of digital conversion.
16.Hence, even if the applicant is able to produce aggregate figures from the material available to him, these figures would be unlikely to provide an accurate and complete figure of digital conversion costs. I consider that the documents provided to the applicant, if disclosed more widely to the public, are unlikely to contribute meaningfully to the public debate or add to the public’s knowledge on the topic of costs associated with conversion to digital television.”[29]
[27] See [5] above
[28] See [5] above
[29] Exhibit 1

Is information in documents to which access sought already in the public domain?

In his second affidavit, Mr Pelling addressed the public availability of the documents the Department had identified as meeting Mr Encel’s request. He did so in the order in which I have described them in [5] above.

Of the first category, Mr Pelling said that those documents are extracts from Explanatory Memoranda accompanying the Television Broadcasting Services (Digital Conversion) Bill 1998 (pages 4 and 9-11) and Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 (pages 8 and 9). He understood that the documents could be found on the ComLaw website ( and Parliament House’s website ( Mr Pelling understood that Ms Patricia Barnes, the Acting General Manager, Digital Broadcasting & Spectrum Management, in the Department, had told Mr Encel of the availability on those websites.
[30] I note that the Explanatory Memorandum and Supplementary Explanatory Memorandum for the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000 is found on the ComLaw website but no Explanatory Memorandum for the Television Broadcasting Services (Digital Conversion) Bill 1998 is found there. An Explanatory Memorandum, which takes into account the amendments that were the subject of a Supplementary Explanatory Memorandum, is found at for the Television Broadcasting Services (Digital Conversion) Bill 1998.
[31] I note that an Explanatory Memorandum and a Supplementary Explanatory Memorandum can be found for the Television Broadcasting Services (Digital Conversion) Bill 1998 on the Parliament House website. That website, however, has only the Explanatory Memorandum for the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000. On its face, that Explanatory Memorandum does not appear to refer to the Supplementary Explanatory Memorandum for that Bill that appears on the Comlaw site.

The second document is a supplementary brief prepared by the Department for the Senate Legislation Committee 2006-07 Budget Estimates Hearing concerning the Regional Equalisation Plan (REP). The REP is a plan that cl 64 of Part 11 of Schedule 4 of the Broadcasting Services Act 1992 (BS Act) requires the Minister to formulate to facilitate the transmission of digital commercial television and datacasting services in regional licence areas. Clause 64(2) of the BS Act required the Minister to have regard to the objectives of maximising the diversity of choice in television services provided in the regional licence areas, of providing a similar range of entertainment and information services to both regional and metropolitan licence areas, of maintaining the financial viability of the commercial television broadcasting industry in regional licence areas, of providing commercial television broadcasting services in regional licence areas that are relevant to, and responsive to, local needs in those areas and of discouraging the concentration of media ownership in regional licence areas.[32]
[32] Exhibit 2 at SP-2

Mr Pelling said that the brief outlines the assistance provided to regional and remote commercial television broadcasters including estimates. He believes that the information about grants and assistance provided to regional broadcasters can be found in the Department’s Portfolio Budget Statements (PBS). As an example, he referred to the 2007-2008 version of the Department’s PBS containing estimates for REP grants administered by the Department. Mr Pelling continued:
“… It should be noted that only a small amount of REP funding is provided as cash grants by the Department (and therefore reported in the Department’s PBS). The majority is provided by means of a rebate against the licence fees paid by the commercial broadcasters concerned …”.[33]
[33] Exhibit 2 at [5]

Mr Pelling annexed to his affirmation a copy of page 49 of the 2007-2008 PBS. It shows the estimated actual expenditure for 2006-2007 and the Budget estimate for five categories of expenditure: administered annual appropriations, special accounts, expenses not funded by current year’s appropriations, departmental appropriations and other resources available to be used.

Information regarding regional broadcasters, Mr Pelling continued, is also included in the Explanatory Statement – Broadcasting Services Act 1992 – Regional Equalisation Plan (Explanatory Statement).[34] It can be found at:
statement broadcasting_services act_1992.[35]

The Explanatory Statement said that there had been an announcement in the 2000-2001 Budget of financial assistance package of up to $260 million over 13 years to assist regional and remote broadcasters with the introduction of digital broadcasting and datacasting services. Under the REP, assistance would be available from 2001-2001 with individual broadcasters able to have access to assistance in the form of licence fee rebates in the fiscal year in which the broadcaster commences digital transmission. Regulations would be made under the Television Licence Fees Act 1964 to allow for the rebate of licence fees. Levels of assistance were set for particular regional areas and arrangements would be made for individual broadcasters in remote markets once the Australian Broadcasting Authority (ABA) had completed a digital conversion scheme for remote licence areas. The level of assistance to be provided to remote broadcasters was estimated at more than $30 million.

[34] Exhibit 2, SP-2

[35] I note that, since the changes to the Administrative Arrangements Order, the website address is now type="1">

Mr Pelling said that the REP licence fee rebates were administered by the Australian Communications and Media Authority (ACMA). He believes that the ACMA’s Annual Reports include accurate and authoritative information about REP licence fee rebates. They are available at Annexed to his affirmation was a copy of page 20 of ACMA’s 2005-2006 Annual Report. That page contains a statement that the fees imposed during 2005-2006 were calculated as a percentage of each licensee’s gross earnings earned by the commercial television and radio licensees during the previous financial year. There then follows a passage about rebates of those fees:

“Regional television licensees claimed rebates of $23.6 million in 2005-06 under the Regional Equalisation Plan, which recognises that regional television licensees face higher per capita costs in converting to digital broadcasting than their metropolitan counterparts. ACMA administered the plan, a disallowable instrument under the Broadcasting Services Act.”[36]

[36] Exhibit 2, SP-3

The third document, which is a spreadsheet created in February 2006, sets out the working estimates of the analogue television costs for the ABC and for SBS. Mr Pelling said in his affirmation:
“8. … I believe that the Portfolio Budget Statements generally deal with ABC and SBS analogue transmission funding, as do additional budget estimates statements. For example, the 2007-08 Portfolio Budget Statements on pages 114 and 117 provide details of expenditure by the ABC on analogue (television and radio) and digital television rollout costs and page 376 provides details of analogue and digital transmission and distribution costs for SBS. These figures relate to 2006-07 and 2007-08. Now produced and marked ‘SP-4’ are copies of pages 114, 117 and 376 of the 2007-08 Portfolio Budget Statements. I believe that the Statements are available on the Department’s website ( As noted below, annual reports tabled by the ABC and SBS also contain reliable and accurate information about analogue television costs for the ABC and SBS.
9.The analogue television costs for the ABC and SBS are also contained in documents such as the answers to Senate Standing Committee on the Environment Communications, Information Technology and the Arts which can be found on the Parliament House website ( I note that the website address is now Exhibit 2

Mr Pelling referred to an answer that the Department had prepared in response to a question asked by Senator Conroy as a member of the Senate Standing Committee on the Environment, Communications, Information, Technology and the Arts. Senator Conroy’s question had referred to the amounts that the ABC and SBS each spent on analogue transmission costs and to the then Minister’s statement that the Government already spent some $75 million annually in contributing to simulcasting costs of the national broadcasters and supporting the digital rollout for commercial operators in regional Australia. The answer was that:
“In 2005-06 the ABC spent $80.2 million on analogue transmission and distribution costs. Of this amount approximately $25 million was for analogue TV, the balance was for radio.
As noted in the question referred to, SBS spent $23 million on analogue transmission and distribution in 2005-06. The vast majority of this funding was for TV. SBS’s costs for radio transmission and distribution are small.
The figure of ‘around $75 million’ from 14 March 2006 speech is the sum of the two amounts for analogue TV, above, and the amount the Government pays for the Regional Equalisation Program (REP) which assists commercial broadcasters with the rollout of digital services in regional areas.”[39]
[39] Exhibit 2, SP-5

The fourth category of documents includes a spreadsheet created on 12 April 2005 setting out the analogue television costs for the ABC and SBS. It also contains digital funding costs for the ABC and SBS. Mr Pelling believes that the annual reports of each of them contains accurate and authoritative information on their expenditure of the funding provided to them. Those annual reports are found at and The funding includes returns made to Consolidated Revenue in relation to unexpended funds. Mr Pelling attached copies of pages 85, 96-97, 100-101, 118 and 122 of the SBS Annual Report.

Mr Pelling understood that Mr Encel’s attention had been drawn to the availability of the Auditor-General’s Report entitled Digital conversion expenditure and sources of funding as at June 2004[40] and to the fact that it could be found at http:/ He annexed a copy of the report to his affirmation.[41]
[40] Management of the Conversion to Digital Broadcasting: Australian Broadcasting Corporation and Special Broadcasting Corporation, Auditor General, ANAO Audit Report No 27, 2004-2005
[41] Exhibit 2, SP-7

The fifth document identified by the Department as coming within Mr Encel’s request is described in its letter of 9 June 2006 as a spreadsheet setting out payments made to reimburse national broadcasters. Mr Pelling adds that the reimbursements are made under the Interference Management Scheme (IMS), which is:
“… a program under which the Government provides funding to assist with the cooperative efforts established by free to air broadcasters to manage interference to analogue television services caused by the commencement of digital services. Commercial free to air broadcasters have implemented a comprehensive scheme to deal with such interference matters (eg through telephone hotlines) and the Government contributes financially to the scheme on an ‘as required’ basis on behalf of national broadcasters. …”[42]

Mr Pelling said that the Departmental appropriations to national broadcasters for digital transmission and distribution is set out in the PBS that he had already discussed[43] and in the Annual Reports for the ABC and SBS as described above.[44]

[42] Exhibit 2 at [14]

[43] See [40-41] above

[44] See [46] above

The sixth and seventh categories of documents all concern payments, invoices and correspondence relating to consultancies. Of purchase orders and consultancies generally, Mr Pelling said:
“While the purchase orders are not published, the Department’s Annual Reports contains [sic] a summary of the Department’s consultancy services contracts let by the Department during the reporting period to the value of $10 000 or more (inclusive of GST). The summary includes the names of the consultant; a summary description of the nature and purpose of the consultancy; the originally agreed GST-inclusive total fixed contract price for the consultancy (or in some cases, actual expenditure for the financial year …); the selection process used, including whether the consultancy was publicly advertised; and the justification for the decision to employ consultancy services.”[45]
[45] Exhibit 2 at [16]

Mr Pelling went on to deal with those consultancies that related to the costs of digital conversion and drew attention to the information to be found in the Department’s Annual Reports:
“… the 2005-2006 Annual Report, for example, includes details on a number of consultancies including a consultancy regarding costings for the digital conversion of self-help retransmission and direct-to-home facilities. Similarly, the 2002-2003 Annual report includes details on several consultancies regarding digital signal input testing, and the cost of digital conversion in remote Western Australia. The 2001-2002 annual report includes details on consultancies regarding digital transmission by SBS and community broadcasters. The 2000-2001 annual report includes details on consultancies regarding digital TV receivers, and interactive TV services. The 1999-2000 annual report includes details on consultancies regarding strategies and costs of national broadcasters’ conversion to digital TV. The supplement to the 1998-1999 annual report also includes some relevant details about consultancies.”[46]
[46] Exhibit 2 at [17]

He went on to set out the website links to the relevant parts of the Department’s Annual Reports containing information about the consultancies that were in the internal documents that it had identified as coming within Mr Encel’s request:
“ note that the first three website addresses are no longer accurate but may need to be updated due to the changes made to the Administrative Arrangements Order in December 2007. In any event, Mr Pelling attached hard copies of the documents.[51]
[47] I note that the website address is now I note that the website address is now http: I note that the website address is now Exhibit 2 at [18] I note that the website address is now Exhibit 2, SP-8

Mr Pelling referred to two emails written by Ms Barnes to Mr Encel. In that dated 13 April 2006, Ms Barnes had written:
“We are only in a position to provide the following information:
1.The cost per year to Government of maintaining the analogue system for ABC and SBS is of the order of $50m per year. It is not possible, for a number of reasons (including commercial confidentiality to be more specific about past and future expenditure).
2.The Government expects to spend over $1250 million over around 10 years on conversion of national broadcasters and providing funding to assist regional broadcasters in converting to digital transmission.”[52]
[52] Exhibit 2, SP-9

Mr Encel queried what was meant by Ms Barnes’ reference to “commercial confidentiality”. She replied:
“The Department has provided a range of data and a general estimate of costings, in additional [sic] to material which I understand has been provided by the Minister’s Office. The Department does not have the resources to conduct a detailed analysis of the annual budget papers and other material which may be available an make the necessary adjustments to annual figures to provide the level of specificity that you sought. Moreover, it is not normal practice for the Department to undertake significant research activities on behalf of members of the public who wish to make submissions to Government inquiries, and potentially a conflict of interest for us to do so given our role in advising the Minister on matters related to media and digital broadcasting policies. Some indication of the types of calculations and estimates which need to be made are exemplified in the following ANAO report (the link for which I understand was provided to you):
http: addition, in relation to REP funding, this is calculated on an annual basis and is sometimes provided by grants and sometimes by licence fee rebate (or both) for a range of different broadcasters, depending on the revenue earned by each broadcaster. Revenue information in relation to each broadcaster could be regarded as confidential. REP amounts for remote area broadcasters have yet to be determined.
Some of the future expenditure, including any under any future Digital Action plan, has not yet been decided by Government. Other future expenditure eg. In relation to transmission, may be regarded as commercial in confidence because of contractual arrangements.”[53]
[53] Exhibit 2, SP-10

On 23 November 2006, the then Minister for Communications, Information Technology and the Arts released a $20m Digital Action Plan concerning Australia’s transition to digital television. The Plan, which was accompanied by a Press Release, is called Ready, Get Set, Go Digital – A Digital Action Plan for Australia. It can be found at Mr Pelling noted.
[54] I note that the website address is now type="1">
On 21 September 1999, the ANAO released its audit of the ABC and SBS regarding the introduction of digital broadcasting and the shift in communications technology away from the analogue system. It considers the costs associated with various phases of digital conversion and the Government’s funding of those costs. The report is entitled Financial Aspects of the Conversion to Digital Broadcasting and can be found at Mr Pelling attached a copy to his affirmation.[55]
[55] Exhibit 2, SP 13

On March 2006, the Government released its discussion paper on media reform entitled Meeting the Digital Challenge: Reforming Australia’s media in the digital age. The paper, Mr Pelling said, considers the planning process concerning the switchover from analogue to digital and invites submissions from members of the public. He attached it to his affirmation[56] and noted that it could also be found on the Department’s website.
[56] Exhibit 2, SP 14

THE GUIDELINES

From the earliest days of the administration of the FOI Act, the Attorney-General’s Department issued a series of memoranda intending to guide decision-makers in making decisions under the FOI Act. Over the years, they have been amended and reissued to take account of interpretations applied in Federal Court and Tribunal authorities.

Freedom of Information Memorandum 29 (FOI Memorandum 29) has now been replaced by the FOI Guidelines – Fees and Charges (FOI Guidelines). In it, attention is drawn to the fact that the remission of application fees and the reduction or non-imposition of charges depends on whether “the giving of access” is in the public interest and not on whether “the granting of remission” is in the public interest. The expression of “in the public interest” is used in the sense of something which is of benefit to the public.[57] Factors that favour a conclusion that there is a public interest in disclosure should be weighed against those that there is none.[58] That leads, the FOI Guidelines observe, to two questions:
“. whether the benefit from the release of the information contained in the particular documents will flow to the public at large, or a substantial section of the public, as well as to the applicant who requested the documents (the question of end use). If no benefit flows to the public from access, because the information will not be made publicly available, the public interest ground for remission or reduction has clearly not been satisfied, and
whether, in the light of all the circumstances, would making the specific information in the particular documents more widely available would be ‘in the public interest’ in the above sense. This requires a consideration of both the contents of the documents as a whole and of the context of their release. Mere curiosity on the part of a person or a substantial section of the public would not constitute a public interest ground. On the other hand, if a disclosure would contribute valuable material to an existing public debate, the disclosure would be in the public interest.”[59]
[57] FOI Guidelines at 6
[58] FOI Guidelines at 6
[59] FOI Guidelines at 6

A decision to reduce a charge or not impose a charge on public interest grounds is a decision that “some public benefit will flow from the giving access.”[60] Should the agency later decide to claim that the documents are, in whole or in part, exempt from disclosure because, where relevant, the public interest in disclosure is outweighed by the public interest in non-disclosure.[61] Such a consideration would be relevant in the context of s 36 of the FOI Act.
[60] FOI Guidelines at 6
[61] FOI Guidelines at 6

The FOI Guidelines also discuss other reasons that may be relevant to take into account when making decisions relating to remission and the reduction of fees and charges. They set out a list illustrating some of those reasons and they include the following:
“The number of documents to be released are small (Agencies should have a written policy as to what constitute a small number of documents.)
The documents are required for the purpose of procedural fairness.
The documents are required for research purposes for which no commercial benefit will be gained by the applicant.
…
The agency was able to retrieve the documents easily and at marginal cost.
The agency would, in different circumstances, make the information available under ‘standard access provisions’.
The request is simple and clear and will involve little work.
Where the cost of calculating charges and subsequent dealings with the applicant will be greater than the cost of processing the request quickly and efficiently.
…
The volume and complexity of the documents is to be considered.
…”[62]

CONSIDERATION

[62] FOI Guidelines at 8

Public interest, general public interest and interest of a substantial section of the public

Mr Encel has relied only on his argument that access to the documents he seeks will be in the “general public interest” or in the “interest of a substantial section of the public” within the meaning of s 29(5). I considered these terms in Re van de Wiel and Civil Aviation Safety Authority[63] in the context of s 29(5) and of previous authorities. Some of the principles that I identified in that case were:
“Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree.”[64]
“The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.”[65]
“… the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and the purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’”[66]
[63] (2006) 93 ALD 163
[64] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395 per Mason CJ, Wilson and Dawson JJ
[65] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 59 per Lockhart J
[66] O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ quoting from Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J
The way in which interests (including competing public interests) are balanced, was explained by Gleeson CJ and Kirby J in McKinnon v Secretary, Department of the Treasury.[67] They did so in the context of a claim for exemption under s 36 of the FOI Act and began by reference to a different:
“… context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, or example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of the documents …. The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a ‘general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]’: (s 3(1)(b)). That is the context in which a minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to ‘balancing’ create a danger of losing sight of that context. …”[68]

I am not concerned with a claim for exemption but the principles in this passage are equally applicable to a consideration of the public interest under s 29(5)(b).

[67] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516

[68] (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516 at 433; 193; 522 [19]

Ignoring for the moment the word “general” in s 29(5) of the FOI Act, these authorities require me to look to the object of the FOI Act and the way in which Parliament has chosen to achieve that object in that legislation. Its object is well known being to create:
“… a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; …”[69]

Parliament has identified the essential public interests and the private and business affairs that it has decided should be protected from disclosure. It has done so by means of the exemptions set out in Part IV of the FOI Act. Apart from those documents that it has decided should be protected, Parliament has clearly intended that documents in the possession of an agency such as the Department be made available to the public in accordance with the remaining provisions of the FOI Act. Among the remaining provisions are those that enable an agency or Minister to refuse a request for access on the basis of what I will broadly describe as workload considerations. They are found in Part III of the FOI Act.

[69] FOI Act, s 3(1)(b)

When regard is had to the structure of the FOI Act, it follows that the reference in s 29(5) to the public interest must mean something more than the mere giving of access under the FOI Act to the documents sought. In other words, it must be a reference to something more than a person’s obtaining what is that person’s right to have.

Section 29(5) does not refer simply to the “public interest” but to the “general public interest”. In Re van de Wiel, I had regard to the ordinary meanings of the word “general” and concluded that its qualification of the expression “public interest” meant that “… s 29(5) is intended to apply to the public interest that relates to most people. That this is so is reinforced by the alternative requirement in s 29(5) i.e. that regard be had to whether access is in ‘the interest of a substantial section of the public.’”[70]
[70] (2006) 93 ALD 163 at 173

I have also had regard to s 66(2)(b) of the FOI Act. It does not refer to the “general public interest” but to the “benefit of the general public”. Section 66(2)(b) requires the Tribunal to have regard to “the question whether the decision of the Tribunal on review will be of benefit to the general public” in deciding whether to recommend to the Attorney-General that an applicant’s costs be paid by the Commonwealth. Other provisions of s 66(2) require the Tribunal to have regard also to the question whether the payment of the costs, or any part of them, would cause the applicant financial hardship, whether the Tribunal’s decision on review would be of commercial benefit to that person and the reasonableness of the decision reviewed by the Tribunal. In Cashman and Partners v Secretary, Department of Human Services and Health,[71] Beazley J said of s 66(2)(b):
“The Tribunal has consistently, and in my view correctly, accepted that the proper approach to the question of benefit to the general public is that stated in Cazalas v US Department of Justice (1983) 709 F 2d 1051 at 1053. In Cazalas, it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community. In other words, the question is concerned with the consequences or result of the application for review, not with the Tribunal’s reasons for decision: see also Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 48; Re Jacobs and Department of Defence (1988) 9 AAR 446 at 455.”[72]
[71] (1995) 61 FCR 301
[72] (1995) 61 FCR 301

The question for the United States Court of Appeal, 5^th Circuit, in Cazalas had been whether Ms Cazalas was entitled to attorney fees under the criteria for suits under the Freedom of Information Act (US) as had been set out in previous authorities adopted by the court. Under the criteria, a court had to consider: the benefit to the public from disclosing the requested information; the commercial benefit to the person requesting the records; the nature of that person’s interest in the records sought; and whether the government had a reasonable basis in law for withholding the records sought. Ms Cazalas had requested documents revealing the reasons for her dismissal and had done so after she had lodged an equal employment opportunity complaint but before she lodged any legal proceedings. She submitted that her request had resulted in changes being made to the procedures adopted in dismissing non-veteran Assistant United States Attorneys. It had also resulted in revealing information helpful to the public in evaluating the wisdom of certain appointments to public positions.

The Court concluded that:
“… Surely it is in the ‘public interest’ to discover, if true, that the Department of Justice is less than entirely just in its dealings. …
… The public interest in open access to government is well illustrated by this case; if decisions of the Department of Justice on internal matters are shown to be premised on less than total justice but instead are based on an impermissible factor such as gender, it would be reasonable to believe that external matters, such as whether and with what vigor the Department of Justice prosecutes offenders of civil rights laws, could be based on problematical rationales as well. The public, as the beneficiary and the ultimate client of the Department of Justice’s efforts to insure compliance with federal laws, needs to know the type of information sought by the appellant in order to maintain effective oversight of its elected and appointed officials.”[73]
[73] 709 F.2d 1051 (1983) at 1053-1054

Deputy President Hotop referred to the passage I have quoted from Beazley J’s judgment in Cashman and to a similar view expressed by Deputy President Hall in Re Lianos and Secretary, Department of Social Security (No 2).[74] He did so in Re WAJ and Commonwealth Ombudsman (No 2)[75] and concluded, again in the context of s 66(2)(b), that:
“… the relevant question in this case, for the purpose of addressing the matter prescribed by s.66(2)(b) of the FOI Act, is whether the documentary information released by reason of the applicant’s application for review will be of benefit to the general public. … Even if the applicant’s application for review created a ‘test case’, the relevant question in relation to s. 66(2)(b) would be the same, but the release of information as a result of a ‘test case’ may be more likely, by virtue of the importance of, and public interest in, such information, to be of benefit to the general public.”[76]
[74] (1985) 9 ALD 43 at 49
[75] (1999) 53 ALD 700 at 707-8
[76] (1999) 53 ALD 700 at 708

How relevant is the interpretation of the words in s 66(2)(b) to the interpretation of those in s 29(5)(b)? The questions that the Tribunal must ask itself under those provisions are different. As I have said, the question under s 66(2)(b) is “whether the decision of the Tribunal on review will be of benefit to the general public”. That under s 29(b) is “whether the giving of access to the document in question is in the general public interest”. The outcome, however, may not be so different but I need to spend a moment explaining why that is so.

One difficulty that appears on the face of s 29(5) is the fact that the question that it asks may be decided before the request for access itself is decided. That is to say, it may be decided at a time when it is not known whether access will be given to a particular document or documents or whether they will be claimed to be exempt for one reason or another under Part IV. If that is so, how can the question posed by s 29(5)(b) be answered? I think that it can be answered when a decision has been made on the request and that decision is to grant access. When that is the decision, it would be thought that both s 29(5)(b) and s 66(2)(b) would be decided against a background of a decision to grant access. The only differences between the two lie in the formulation of the public interest or the public benefit and it is difficult to see differences of substance between the two in the context of the FOI Act.

If a decision has not been made on a request, I do not think that the question posed by s 29(5)(b) can be answered. The question whether giving access to the document in question is in the general public interest does not have any meaning if access is to be refused. Regulation 10(2) recognises that such situations can arise. It regulates a situation in which an estimate of charges has been given under r 9 and an agency or Minister decides not to grant access as requested. When the charges are recalculated under r 10(1), the amount of the estimated charge cannot be adjusted unless to do so would be to reduce the charge.

I do not think that s 29(5) requires the decision-maker or the Tribunal to decide whether access will be given before a decision is made to estimate the charges under the Regulations. In addition, it does not authorise the decision-maker or the Tribunal to consider whether access should be given. There are two reasons for this. The first is that, reading the FOI Act and the Regulations together, they contemplate a separation between deciding whether access to a document should be granted in accordance with a request and deciding whether to impose a charge or whether to reduce a charge. Regulations 9 and 10 are also drafted on the basis that this is so. They contemplate an estimate of the charges with an adjustment of that estimate after the decision on the request for access is confirmed. It is appropriate to have regard both to s 29 and to the Regulations. They both came into operation on 1 December 1982 and together set out the system of charges to be applied in respect of a request for access and the provision of access.[77]
[77] Re Shahin Enterprises Pty Ltd and Registrar of Trade Marks and Exxon Mobil Oil Corporation (2003) 76 ALD 272 [2003] AATA 765 at 289; [64] and see also Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 at 666-667 in which Heerey J decided that the Patents Act 1990 provided the framework on which the contemporaneously prepared Patents Regulations 1990 built a detailed regime.

My second reason is based on the very different issues that must be decided in considering the issues raised by s 29(5) and those raised by Parts III and IV of the Act. On the face of the FOI Act, the question whether the request will be granted, granted in part or not granted at all is clearly the subject of a separate decision as I have mentioned above.[78] The exemptions provided for in Part IV fall into various categories and by reference to the need to protect certain public and private interests. None is drafted by reference to the issues that are raised for consideration by s 29(5). It seems to me that is so because they are directed to different matters.
[78] See [63] above

The fact that the question posed by s 29(5)(b) cannot always be answered at the relevant time does not, in my view, pose a difficulty. The public interest consideration set out in s 29(5)(b) is but one of the matters to take into account in deciding whether to reduce or not to impose a charge. Certainly, it must be taken into account as must any financial hardship caused to an applicant for that is required by s 29(5) but the matters are not limited to the two matters specified in the subsection itself. Section 29(5) is begins with a clear intention that what follows is expressed “Without limiting the matters the agency or Minister may take into account …”. Thought needs to be given to what those other matters are. Although I will return to that issue a little later,[79] I would observe that those matters would, on my view, incorporate the matters that Parliament has sought to incorporate in s 29(5)(b),
[79] See [80]-[85] below

If I am correct in my interpretation, the difficulties that O’Connor J faced in Re Herald & Weekly Times and Secretary, Department of Finance and Administration[80] would be overcome. No decision had been made on the request and O’Connor J, who was then the President of the Tribunal, considered the matter on the basis of what would be the case if the documents were released. She said:
“ In exercising the discretion it is, in my view, important for the Tribunal to be satisfied that the documents, if released, would come to the attention of the public or a significant section of the public, and also come to a conclusion as to whether disclosure would add to that which is already publicly known. In my view there is a significant public interest in knowing the way in which public funds are being used by those holding public office and this seems to be acknowledged by the respondent in that since the period in which documents are sought in this application there has been a system of such disclosure set up by the government and complied with. However, as stated before the documents sought relate to travel undertaken some years ago and there is no guarantee of publication if released.”[81]
[80] (2000) 31 AAR 251
[81] (2000) 31 AAR 251 at 268

On this view of s 29(5), I find myself regretfully disagreeing with what I think may have been an assumption underpinning the reasoning of Senior Member Kelly in Re Australian Privacy Foundation and Attorney-General’s Department.[82] Competing constructions of s 29(5)(b) had been proposed in the parties’ submissions but she concluded that:
“It is unnecessary for me to determine this construction question. If I assume in favour of the APF [Australian Privacy Foundation] that its access to the documents satisfies s 29(5)(b), I am still not persuaded that the processing charge should be reduced or not imposed in the circumstances of this case. I have determined that the charge with which I am concerned is not going to cause the APF financial hardship. There was no evidence that if the charge were imposed the APF would not proceed with the application. It is appropriate that the processing fee be charged.”[83]
[82] [2005] AATA 1204
[83] [2005] AATA 1204 at [31]

For the reasons that I have given, I consider that regard must be had to both the public interest and financial hardship as set out in s 29(5). Contrary to what I understand may be the basis of the reasoning in Re Australian Privacy Foundation, s 29(5) does not require that both be satisfied before a charge may be reduced or not imposed. Either one, or another matter altogether, may lead the decision-maker to reduce or not to impose a charge.

It may be that I am incorrect in what I understand to be the assumption. If I am, I would still have difficulty with the approach adopted in the passage of Re Australian Privacy Foundation to which I have referred. As I read it, the passage assumes that the access is in the public interest but there is no further reference to that aspect in the assessment of the ultimate question of which s 29(5) requires an answer. Assuming that the matters raised by ss 29(5)(a) and (b) are the only relevant matters, they do not appear to have been balanced. An example of balancing is found in O’Connor J’s decision in Re Herald & Weekly Times and Secretary, Department of Finance and Administration:
“ In this case the applicant which runs a profitable business has, in my view, the financial resources to pay the charges imposed. No financial hardship has been demonstrated by the applicant. The fact that the cost has not been budgeted for is, at its highest, a commercial decision, not a matter of lack of funds. I conclude that the applicant would also receive a commercial benefit in disclosure, and when assessing the newsworthiness of the material such commercial benefit would be relevant. The application as it now stands will require a substantial number of resources to process it. If such resources were to be used and no part of the cost involved could be recouped from the applicant then this would, in my view, be inconsistent with the provisions of the Act. There does not seem to be, in my view, sufficient weight in the other arguments, particularly where there is no guarantee of publication, to outweigh this consideration.” [84]
[84] (2000) 31 AAR 251 at 268-269

There remain any other matters that may be relevant. Just as the public interest is confined only by reference to the subject matter, scope and purpose of the FOI Act, those matters must be ascertained by reference to them also. In van de Wiel, I attempted to identify them when I said:
“ The FOI Act presents what can be competing aims and I have some difficulty in finding a balance that reflects the right of access and the intention to recover some charges and their imposition. Apart from general public interest or the interest of a substantial section of the public and financial hardship, the FOI Act itself provides little guidance. Perhaps that is the guidance that it intends to provide. The circumstances of where the balance lies needs to be determined by what is a fair and appropriate thing in each case having regard to the use that is to be made of the documents, the cost to the public and the workload that cost reflects and the benefit that can be obtained by the public in granting access. At times, the benefit to the public may appear a little remote but there are occasions on which a benefit to the individual can be for the benefit of all.”[85]
[85] (2006) 93 ALD 163 at 176

I have had regard to the decision of Deputy President Walker in Peatling v Department of Employment and Workplace Relations.[86] Ms Peatling, a journalist employed by the publishers of the Sydney Morning Herald, requested access to documents relating to the formulation of the then Government’s Welfare-to-Work package and for a remission of half of any charges on the basis that access to the documents was in the public interest. It appears that no decision had been made on the request when the charges were estimated.
[86] [2007] AATA 1011

Deputy President Walker considered the application for review of that estimate on the basis that it raised the question regarding public interest put by s 29(5)(b). He assumed that many of the documents requested could be the subject of successful claims for exemption but said that fact should not disentitle an applicant under s 29(5)(b). In his consideration of the public interest, Deputy President Walker addressed matters under the following headings:
(1)“Whether the documents would come to the public’s attention and add to its knowledge”
(2)“Whether the information contained in the documents is potentially misleading or confusing”
(3)“Whether material parts of the information have been overtaken by events and are out-of-date”
(4)“Whether the information contains overtly, or embedded in it, in a way capable of being discerned by an appropriately qualified person, highly sensitive economic information which, if released, could cause persons or organisations to distort their behaviour, with potentially adverse impacts on personal, company or broader economic performance”
(5)“Whether there are any countervailing considerations to be weighed against the public interest in granting access”.

These are matters that are, in my view, very difficult to determine when the documents are not before the Tribunal as a decision on the request has not been made and is not being reviewed. They are not matters on which I was given any evidence but I have considered whether I should ask the parties to address them. I have decided against doing so as I have come to the view that the second, third and fourth are more appropriate to be addressed in the context of whether access should be given to documents rather than whether a charge should be reduced or not imposed. The task of Part IV of the Act is to enable an agency or Minister to refuse access to information in documentary form when it is of a certain description or its disclosure would have one or other of the consequences identified in that Part. To my mind, that does not seem to be a task assigned to s 29(5).

Whether the information is out of date may have an impact on whether the documents will come to the public’s attention and can be considered in that context in considering remission or the non-imposition of charges. Beyond that, I do not think I should venture. Section 29 appears in legislation that:
“… operates on the premise that there is a public interest in the public having access to Government information to facilitate the public’s ability to ‘discuss, review and criticize government action’: see The Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 52 per Mason J. This reflects the proposition in that ‘governments act, or ... are constitutionally required to act, in the public interest ... information is held, received and imparted by governments, their departments and agencies to further the public interest’: Attorney-General (UK) v Heinemann Publishers Pty Ltd [No 2] [1988] HCA 25; (1987) 10 NSWLR 86 at 191 per McHugh JA; see also Australian Capital Television Pty Ltd v Commonwealth (No 2) [1992] HCA 45; (1992) 177 CLR 106 at 137-140 per Mason CJ.”[87]
[87] General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [147] per McColl JA with whom Handley and Hodgson JJA agreed

The philosophical basis is one thing but the FOI Act finds itself in a world in which a system may be established and supported by public money but the person who seeks a benefit or an advantage offered by that system must pay for it. That is the philosophy underpinning s 29 but it is a philosophy qualified by the wider philosophy to which I have just referred. If the person can show that the benefit or advantage, in the form of access, will benefit a wider group of persons, that will be a relevant consideration. When a decision has not been made on a request, it will be relevant to consider whether the processing of the request and any provision of access to the documents as a result is in the interest of the general public or of a substantial section of the public. That will require a consideration of the request and of the types of documents that it encompasses. If the processing of the request is likely to be of benefit only the person making a request, that will be a matter weighing against remission or non-imposition of the charges as it was in Re Herald & Weekly Times and Secretary, Department of Finance and Administration above.[88]
[88] See [76] above

Should the charges be reduced?

In this case, the Department has taken the position that it has already provided a large number of documents to Mr Encel at no cost to him. In addition, it has provided him of various websites at which information is located. Much of the information sought by Mr Encel is available on those sites. These matters should be taken into account in considering what is fair and appropriate having regard to the use to be made of the documents, the cost to the public, the workload that the cost represents and the benefit that can be obtained by the public in granting access to the documents under the FOI Act. In doing so, the value to the public of the level of detail sought by Mr Encel and, in particular of the invoices, was questioned.

Mr Encel’s position is that the introduction of digital television in Australia is a matter of public interest and public importance. Figures relating to the costs of its introduction and the costs of maintaining analogue television at the same time must be available and they should be made available. Mr Encel did not want to be thought that he was claiming that the payment of the estimated charges would cause him financial hardship for it would not. His aim in seeking the information is to use it in his task of trying to get analogue television closed down because the costs of maintaining it are so high.

At the outset, I would mention that a consideration of whether to reduce or not to impose charges is not the occasion for a consideration of whether the documents sought by Mr Encel should be released or whether they can properly be the subject of a claim for exemption under Part IV of the FOI Act. That is an entirely separate question and one to which I feel that Mr Lane’s evidence was directed. Having said that, the evidence of Mr Lane, Ms Simons and Professor Papandrea leads me to conclude that the subject of digital television and its introduction into Australia is one that goes well beyond curiosity or passing interest. It is very much a matter of public interest. At the individual level, it is relevant in deciding what, if any, television set to buy. At the broader level, it is relevant in Australia’s managing its assets, of which the broadcast spectrum is one. It is relevant in assessing whether public funds are being used in the most efficient and cost effective way to manage that asset.

I understand that Mr Encel is engaged in the retail sale of various goods such as televisions and sound systems and I accept that he is deeply concerned about the costs of the transition from digital to analogue broadcasting. His concern is not connected with any commercial advantage that he might be thought to gain if a digital set-top box were provided for every Australian television not currently capable of receiving digital transmission. I make that finding having heard Mr Encel’s evidence and his evident passion in the subject and being aware that, if his proposal were accepted, the provision of digital set-top boxes would be a matter for tender. Mr Encel is but one of many who might have an interest in submitting a tender. The Department also contended that Mr Encel might gain a possible commercial benefit through the publication of any article in the media or in the public domain. I do not accept that. There is no evidence of any benefit to Mr Encel in the form of a fee for the publication of any such articles. If it is thought that he might be able to gain some added public exposure through the publication of his articles, it is difficult to see how any such exposure would give him any commercial advantage. I think that I can take judicial notice of the fact that his name is already known in the public arena through his retail enterprise. He has already published on the subject of digital broadcasting. I am not satisfied that any further publicity would give him any commercial advantage.

On behalf of the Department, Ms Arduca submitted that “The Tribunal must be satisfied that the documents, if released, will come to the attention of the public, or a significant portion of the public …”.[89] I do not think that this is so. Section 29(5)(b) requires me to take into account whether the giving of access to the document is in the general public interest or in the interest of a substantial section of the public. I do not think that requirement equates with a requirement that the documents will come to their attention. That is part of it but there is a wider issue that is raised by s 29(5)(b). It is the “giving of access” and the consequence of that giving of access that is relevant under that provision. The consequence that is sought from the giving of access is that it is in the public interest.
[89] Outline of Submissions of the Respondent at [9]

To my mind, an assessment of whether the giving of access is in the general public interest or in the interest of a substantial section of the public can be determined by reference to the part that it will play in the matters that have been identified as being of public interest. At first glance, this would seem contrary to s 11(2) which provides that a person’s right of access is not affected by that person’s reasons for seeking access or the agency’s or Minister’s belief as to what those reasons may be. The right of access is not affected for it is a right to obtain access “in accordance with this Act”.[90] The FOI Act provides for the imposition of charges. It provides for their reduction or non-imposition in terms of s 29(5). The notion that reasons are not relevant but that regard may be had to their use in the context of the provisions relating to charges is not inconsistent. Indeed, a consideration of private interests is essential in a consideration of the public interest in s 29(5)(b) if only to discount them.
[90] s 11(1)

I accept Mr Encel’s evidence that he will make any documents available on his website. They will then be available to the general public with an interest in the subject. They will also be available to people such as Mr Encel, Ms Simons, Professor Papandrea and Mr Lane who are interested in raising and exploring the various policy approaches that could be adopted. Such people, who have experience and a special interest in the field, are important in keeping issues of this sort alive so that, sooner or later, they are properly debated in the wider community. The availability of the documents and the debate they generate are in the public interest when they relate to the subject of the use that is made of the Australian broadcasting spectrum and the costs attending its use.

The matters I have identified favour Mr Encel’s request being processed free of charge. They are all directed to the public interest in having sufficient and appropriate information to facilitate the public’s ability to discuss, review and criticise government action. There are, however, other matters that are also relevant. The first is the general principle underpinning s 29 and described by O’Connor J in Re Herald & Weekly Times and Secretary, Department of Finance and Administration:
“Section 29 establishes the prima facie position that charges should be imposed so that the applicants contribute to the cost of processing all their requests and s 24 reflects parliamentary concern that it is not in the public interest for any department to be required to process requests which would substantially and unreasonably divert its resources from its other operations.[91]
[91] (2000) 31 AAR 251 at 268

In this case, I am satisfied that the documents identified in the Department’s first category of those meeting Mr Encel’s request – extracts from explanatory memoranda accompanying digital television legislation – are available on the internet. There is no evidence suggesting that Mr Encel is unable to gain access to the internet and so to those documents free of charge. The websites on which they are made available belong to the Commonwealth or a Commonwealth agency. The fact that the Commonwealth makes documentary information available through those websites recognises the public interest in knowing the law and the workings of government. The public interest does not require the same information to be given through other media without charge. It may be that Mr Encel has a reason for wanting the explanatory memoranda to be given to him in response to his request under the FOI Act. It is not for me to question any reason he may have but it seems to me that neither the public interest or any other consideration that is relevant in the FOI Act requires that he be given it without charge.

The FOI Act does not require an agency or Minister to create documents or to assemble information that was not previously assembled in order to respond to a request for access. The statutory right is to obtain access in accordance with the FOI Act to a document in the possession of the agency or Minister, other than an exempt document.[92] Therefore, when Mr Encel asked for access to “information in whatever form it is available”, he must be taken as asking for access to a document containing that information and in the Department’s possession. A “document”, of course, has a wide definition and extends well beyond the traditional paper version.[93] The Department was free to choose to go beyond the provision of the access of documents and to provide information. It appears to have done that in the email correspondence with Mr Encel, to which I have referred in relation to some information. It has also done that in relation to the website addresses that it has given to him. It is to be commended for doing so and for going beyond the bounds of the FOI Act. That legislation was never intended to set out a code for the provision of information and was never intended to limit that which was made available. What it did do was to prescribe what an agency or Minister must release. If it wants to provide more and it is not prevented from doing so by law or by what is appropriate in the context of public administration, it is not prevented from doing so.
[92] ss 11(1) and 3(1)
[93] s 3(1)

On the basis of the evidence given by Mr Pelling, I find that the website addresses lead to information relating to the same subject as that sought by Mr Encel. I also find that, apart from the explanatory memoranda, none of the websites leads to the documents identified by the Department as being in its possession and as coming within the terms of Mr Encel’s request.

I also find that, at least to some extent, the information contained in the documents on those websites does not necessarily include all of the information in the documents that the Department has identified as coming within Mr Encel’s request. I refer, for example, to the departmental purchase orders detailing payments for consultancies regarding digital television. Mr Pelling referred to the summary of the Department’s consultancy services contracts let by the Department during the reporting period to the value of $10,000 or more.That summary may, or may not, include more information about particular consultancies than Mr Encel contemplated when he sought documents setting out certain costs or it may not. What it may not include is information that Mr Encel did seek when he asked for documents about costs. That information relates to any consultancies to a value less than $10,000. There may be none but that is not something on which I have any evidence.

As I do not have the documents identified as coming within Mr Encel’s request, I cannot compare the extent to which the information they contain is mirrored in those to which Mr Pelling has referred as containing relevant information. Taking the spreadsheet created on 12 April 2005 as an example, Mr Pelling has said that it contains the analogue costs for each of the ABC and SBS and some digital costs. Accurate and authoritative information on their expenditure and of the funding provided to them is to be found in their annual reports. He attached copies of the relevant passages from the annual reports but, given that the passages from the two annual reports must be in a different format from that in a spreadsheet, it is open to wonder whether the information is the same or, if it is the same, whether anything is to be drawn from the way in which it is presented in a spreadsheet.

In some circumstances, it would be appropriate to conclude that the information that is likely to be disclosed in the documents encompassed within an FOI request is not likely to add to the body of information already available to the public. In those circumstances, it may be that making it available will not add to the public’s knowledge or consideration of the subject. On the material that I have, I do not consider that this is such a case. I have referred to only two examples, but I am persuaded that, except for the explanatory memoranda, the information in the documents identified as coming within Mr Encel’s request or the terms in which it is presented can be expected to add to the base of information already publicly available.
Given my earlier conclusion that the subject of digital television and its introduction into Australia is one that is very much a matter of public interest, I have concluded that, apart from the explanatory memoranda, the processing of the request and any provision of access to the documents as a result of that processing is in the interest of the general public or of a substantial section of the public.

I have also had regard to the workload that will be imposed on the Department in processing and determining the request. The number of pages located and to be considered is small being only some 34 in all. The most significant single cost in the estimate of charges is that relating to consultation with third parties. Given the importance of the topic of digital and analogue broadcasting to the public and the public interest that lies in its being properly debated, I do not consider that the non-imposition of charges in the amount estimated by the Department is disproportionate to the public benefit that I have found will attend the giving of access to any documents as a result of processing the request.

Taking all of these matters into account, I have decided that charges should not be imposed in relation to the documents identified as coming within the scope of Mr Encel’s request unless they are documents already freely available through other means such as Commonwealth websites. Therefore, for the reasons I have given, I:
1.set aside the decision of the respondent dated 10 August 2006; and
2.substitute a decision that:
the charges imposed in respect of the processing of the request and the provision of any access to any documents as a result are not to be imposed except in so far as they relate to documents already available to the public through other means.
I certify that the one hundred and one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: .......................................................................
Jayne Haydon Associate

Date of Hearing  20 September 2007
Date of Decision  25 January 2008
Solicitor for the Applicant            unrepresented

Solicitor for the Respondent Ms E Arduca
Australian Government Solicitor