Johnston and Australian Postal Corporation
[2006] AATA 144
•22 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 144
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/546
GENERAL ADMINISTRATIVE DIVISION )
Re ALAN JOHNSTON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date22 February 2006
PlaceBrisbane
Decision § The Tribunal decides, in accordance with the purpose of the Freedom of Information Act 1982 and the provisions considered, to vary the decision. Subsequently the applicant is entitled to the following information
(a) the name of the LPO (the first column);
(b) the official street address of the LPO (the third column);
(c) the suburb and State of the LPO (the fourth column); and
(d) the postcode of the LPO (the fifth column).
§ The Tribunal affirms the decision in respect of the following material, and hence the following are exempt –
(a) the name of the licensee (the second column on the Australia Post list);
(b) the telephone numbers (the sixth and seventh columns on the Australia Post list);
(c) exhibits A and B of the Affidavit of Michael John Leonard Keen dated 8 December 2005.
§ The Tribunal orders that the documents provided to the Tribunal disclosing the full information, and which are the property of Australia Post, should remain sealed at the Tribunal and should be returned to the respondent intact upon publication of this decision.
. .........[Sgd].......
KS Levy
Member
CATCHWORDS
FREEDOM OF INFORMATION – licensed postal office – request for details regarding contact details for – whether documents relating to commercial activities of government corporations exempt – collateral purpose between essential services and commercial activity – public right to information – decision varied.
Freedom of Information Act 1982 ss 7, 64(1), Part II of Schedule 2
Administrative Appeals Tribunal Act 1975 ss 35(2)
Australian Postal Corporations Act 1989 ss 14, 15, 16, 26, 27, 28
Acts Interpretation Act 1901 ss 15AA
Statute Law Revision Act 1981
Constitution of Australia Act 1901
Postal Services Act 1975
Commonwealth Authorities and Companies Act 1997News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64
Arnold v State of Queensland (1987) 13 ALD 195
Re Pye and Australian Postal Corporation [2004] AATA 1097
Re Papps and Australian Postal Corporation [2004] AATA 833
Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169
Adamson v West Perth Football Club (1979) 39 FLR 199
Ellison v Vukicevic (1986) 7 NSWLR 104
Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388
Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCFCA 221
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Project Blue Sky v ABA (1998)153 ALR 490
Ross v R (1979) 141 CLR 432
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28
Searle v Public Interest Advocacy Centre 36 FCR 111REASONS FOR DECISION
22 February 2006 Dr KS Levy, Member 1. This application was received in this Tribunal on 22 August 2005 and was made under Section 29(1) of the Administrative Appeals Tribunal Act 1975. It is an application for review of a decision made by the Australian Postal Corporation on 15 August 2005 which refused access to certain documents pursuant to the Freedom of Information Act 1982. That refusal was made on the ground that Australian Postal Corporation is exempt from the operation of the Act in respect of the documents requested, pursuant to Section 7, and Part II of Schedule 2 of the Act.
2. The application was heard in Brisbane on 19 December 2005. Mr Johnston was self-represented. The respondent was represented by Mr M Batskos of FOI Solutions, instructed by Mr A Caprackas, Legal Officer/National FOI Officer, Legal Services Group, Australian Postal Corporation.
Background
3. The applicant originally applied by letter dated 12 July 2005 for access to:
“….a current and up to date list of every ‘Licensed Post Office’ existing in Australia. I would like the information to contain the following
1. Licensees Full name
2. Post office name
3. Post office street address and suburb
4. Licensees business address including postcode
5. Licensee’s business phone number.” [See T3, Folio 8 (Exhibit 4)]
4. Documentary evidence was admitted as follows:
Exhibit 1Submission to Australian Competition and Consumer Commission (ACCC) by Australian Newsagents’ Federation Limited – December 2005
Exhibit 2Letter to ACCC from United Newsagents of Australia dated 1 December 2005
Exhibit 3Affidavit of Michael John Leonard Keen sworn 8 December 2005
Exhibit 4On 8 November 2005 lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents).
Confidentiality Orders
5. At the commencement of the hearing a number of preliminary issues were dealt with, including documents which the respondent claimed were exempt under the Act. There were two such documents which were referred to and subsequently, during the course of the hearing, the respondent produced a further list of information which the applicant specifically sought, and which, it was claimed, was exempt under the Act. In respect of those three documents, I made preliminary orders under Section 64(1) of the Act that those documents were to be restricted to the Tribunal only, until further order. I also made an order in respect to the same documents under Section 35(2)(c) of the Administrative Appeals Tribunal Act 1975 that the documents remained sealed with the Tribunal until further order.
Evidence
6. There was only one witness who provided evidence. This was Mr Michael John Leonard Keen who is the National Manager, Licensed Post Office Policy and Procedure, of the Australian Postal Corporation (“Australia Post”).
7. Mr Keen gave evidence that he was responsible for determining policy associated with the establishment and operation of Licensed Post Offices (“LPOs”). LPOs are commercial entities which operate under contractual arrangement with Centrelink for the provision of services and products, some of which are mandatory and some of which are at the election of the licensee of the LPO. Mr Keen stated that there were approximately 3,000 LPOs operating in Australia. In relation to the mandatory products, his evidence, both orally and in an affidavit, outlines that mandatory products involve postage stamps, pre-stamped envelopes and aerogrammes.
8. There are also mandatory services which include money orders, reply paid postal services, change of address, registered post, bill payment services, certain banking services, and other services. All of those products and services are provided under license which is formally agreed between Australia Post and the licensee. The requirements placed on licensees is specified in a detailed document which is a manual of practices and procedures for LPOs. This forms part of the written agreement between the licensee and Australia Post.
9. There are also other products and services which LPOs can, at their own election, stock and sell to the public. These are subject to separate agreement with Australia Post. Such an arrangement was said to allow for flexibility by licensees, depending on the size, location, and the demand for various products and services.
10. Licensees are authorised to sell Australia Post products and services on their premises. The non-Australia Post products and services can be marketed, displayed and stocked on the premises of LPOs also, unless they compete with protected products or services available through the Australia Post network. These would include –
(i)the acceptance and/or delivery of domestic and international postage items;
(ii)the provision of manual or electronic banking services;
(iii)the provision of a post office box service for any organisation other than Australia Post;
(iv)the sale of products which compete with Australia Post philatelic products (as per Mr Keen’s affidavit).
11. In relation to the non-mandatory products provided by Australia Post to LPOs, Australia Post essentially acts as a wholesaler. It purchases various products in bulk and are warehoused and supplied to LPOs as and when ordered. Because of the economies of scale in Australia Post’s large buying power, it buys at the most competitive prices which are then passed on to LPOs. One attraction of these products to LPOs is that Australia Post provides products to the LPO and makes no charge for delivery of the order.
12. Australia Post authorises LPOs to conduct mandatory services as well as some optional postal services. These require the approval of Australia Post and include the use of franking machines, bulk postage, post office boxes, private and locked bags, and electronic postal services, for example, fax and document services.
13. With respect to many of the optional services provided by Australia Post, which are provided either through its corporate post offices or LPOs, these are offered in direct competition with the private sector. These include bill payment services, banking agency services, post office boxes and private or locked bags in competition with private post box services and document exchange services, parcel post and express post (in competition with organisations such as Toll, Ipec and other couriers), and recharge credit for mobile phones in competition with other retailers.
14. In terms of the proportion of business contributing to Australia Post’s profit, Mr Keen stated that for the financial year ending 30 June 2005, approximately 25% of Australia Post’s profit was derived from its core business or postal services as authorised by the Australian Postal Corporations Act 1989 (the “APC Act”) (that is, its reserved services) while 75% of its profit is derived from commercial activities.
15. In relation to the information sought by the applicant, Mr Keen stated that the information kept on its list of LPOs was maintained for a number of purposes and functions. These include the reimbursement of fees and commissions to LPOs; to supply products requested by LPOs; to communicate changes of products and services with current licensees. His evidence was also that this list changes constantly and that 30 to 40 of these licensees change each month.
Issue for Determination
16. The issue for determination by the Tribunal is whether the document sought by the applicant is a document in respect of the commercial activities of the Australian Postal Corporation and whether it is therefore exempt (see Section 7(2) and Part II of Schedule 2 of the Act).
Legislative Framework
17. The relevant provisions of the statutes involved are as follows –
§ Freedom of Information Act 1982
“SECTION 3
Object(1)The object of this Act is to extend as far as possible the right of the Australian
community to access to information in the possession of the Government of the Commonwealth by:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b)creating 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; and
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
….
SECTION 7
Exemption of certain persons and bodies
(1) The bodies specified in Division 1 of Part I of Schedule 2, and a person holding and performing the duties of an office specified in that Division, are to be deemed not to be prescribed authorities for the purposes of this Act.
(2) The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them.
(2AA)A body corporate established by or under an Act specified in Part III of Schedule 2 is exempt from the operation of this Act in relation to documents in respect of the commercial activities of the body corporate.
(2A) An agency is exempt from the operation of this Act in relation to a document that has originated with, or has been received from, the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Inspector-General of Intelligence and Security or the Office of National Assessments, or the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation or the Defence Signals Directorate of the Department of Defence.
(3) In subsection (2AA) and Part II of Schedule 2, commercial activities means:
(a)activities carried on by an agency on a commercial basis in competition with persons other than governments or authorities of governments; or
(b) activities, carried on by an agency, that may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis in competition with persons other than governments or authorities of governments.
(4) In subsection (2AA) and Part II of Schedule 2, a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities.
….
SECTION 11
Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
….
SECTION 64
Production of exempt documents
(1)Where there are proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the document but the Tribunal, for the purpose of deciding whether the document is an exempt document, may require the document to be produced for inspection by members of the Tribunal only and if, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding, or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff, to have access to the document or disclosing the contents of the document to any such person.
Schedule 2
Section 7
Part I—Exempt agencies
….
Part II—Agencies exempt in respect of particular documents
Division 1….
Australian Postal Corporation, in relation to documents in respect of its commercial activities.
….”
§ Australian Postal Corporation Act 1989
“SECTION 26
Commercial obligation
Australia Post shall, as far as practicable, perform its functions in a manner consistent with sound commercial practice.
SECTION 27
Community service obligations
(1) Australia Post shall supply a letter service.
(2) The principal purpose of the letter service is, by physical means:
(a)to carry, within Australia, letters that Australia Post has the exclusive right to carry; and
(b) to carry letters between Australia and places outside Australia.
(3)Australia Post shall make the letter service available at a single uniform rate of postage for the carriage within Australia, by ordinary post, of letters that are standard postal articles.
(4) Australia Post shall ensure:
(a)that, in view of the social importance of the letter service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b)that the performance standards (including delivery times) for the letter service reasonably meet the social, industrial and commercial needs of the Australian community.
(5) In this section:
Australia includes Christmas Island and Cocos (Keeling) Islands, but does not include any other external Territory to which this Act extends.
SECTION 28
General governmental obligations
Australia Post shall perform its functions in a way consistent with:
(a)any general policies of the Commonwealth Government of which the directors are notified under section 28 of the Commonwealth Authorities and Companies Act 1997;
(b) any directions given by the Minister under section 49; and
(c) Australia's obligations under any convention.”
§ Administrative Appeals Tribunal Act 1975
SECTION 35
Hearings to be in public except in special circumstances
….
“(2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
….
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”
Consideration
18. The respondent argued, correctly I might say, that this matter is concerned wholly with statutory interpretation. It submitted that Sections 7(3) and 7(4) of the Act govern resolution of the issues in question These provisions amplify the fundamental provision in Section 7(2) and Part II of Schedule 2 of the Act about whether the document requested is a document in respect of “commercial activities”. The latter term is defined in Section 7(3) and “documents” is amplified in Section 7(4). It is also clear that other principles of statutory interpretation involving the object of the Act (Section 3) and various provisions of the APC Act in relation to the effect of Australia Post’s “reserved services” and its “commercial activities”, are relevant to resolution of this application.
19. The respondent argued that if the documents sought are part of the “commercial activities” of Australia Post, then the document is exempt from the operation of the Act. The respondent also informed the Tribunal it did not intend to argue the relevance of any specific exemption under Part IV (“Exempt Documents”) of the Act.
20. Specifically, the respondent has sub-divided the issue for the Tribunal into three subsidiary questions as follows:
(a) Does Australia Post carry on activities on a commercial basis?
(b)Are those activities carried on in competition with persons other than governments or authorities of governments (i.e. the private sector)?
(c)Was the document received or brought into existence in the course of, or for the purposes of, the carrying on of those activities?
21. It is convenient to deal with the issue for determination through those three questions proposed above.
22. Before considering with those issues specifically, it is appropriate to deal with some issues of statutory interpretation which underpin the resolution of this issue for the Tribunal as there are two interacting statutes involved – the Freedom of Information Act 1982 and the APC Act.
23. With respect to the Freedom of Information Act 1982 (“the Act”), and in the context of the contemporary approach to statutory interpretation, it is clear that using a purposive approach reveals a general right of access which is “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….”. (Section 3(1) of the Act).
24. The intention of the general right in relation to exemptions is reinforced in Section 3(2) of the Act which states:
“(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.”
25. The interpretation of this foundation section of the Act is important as it sets the basis for determining the relationship between the provisions dealing with the principal objects of the Act and the exemptions. Any suggestion of a preference for reading any exemption narrowly and thereby widening the information which might be released, has been rejected (see e.g. News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66). However, the Full Federal Court in Arnold v State of Queensland (1987) 13 ALD 195 at 205 highlighted that:
“…Parliament regarded the principle of facilitating and promoting the disclosure of that information as itself constituting a weighty factor to be taken into account in making a judgment as to the public interest in any decision whether to disclose particular documents….”
26. In Searle v Public Interest Advocacy Centre (1992) 36 FCR 111 at 115, the Full Federal Court also emphasised in a clear rejection of any “leaning” approach to interpretation, that the plain meaning of the words of the statute shall be strongly influential in determining any general and object provisions. Within this context, the three questions submitted by the respondent are now dealt with below.
Question 1: Does Australia Post Carry On Activities On A Commercial Basis?
27. The respondent argued that it carries on its activities on a commercial basis as there is an element of profit in its charges (see Re Pye and Australian Postal Corporation [2004] AATA 1097). The respondent’s Counsel also submitted arguments similar to the evidence of Mr Keen. His submission was:
“Australia Post is engaged in numerous activities of a commercial nature and all have a focus on generation of profit.”
28. This referred to the mandatory and non-mandatory products and services provided through its corporate post offices (known as PostShops) and through the respondent’s extensive network of LPOs. It submitted also that in respect of each licensee of an LPO, Australia Post is both the licensor and a supplier of retail goods and services through those agents.
§ Are Those Activities Commercial Activities”?
29. “Commerce” is defined as:
“the exchange of goods and services, esp. on a large scale involving transportation between cities, states and nations”. (Macquarie Dictionary Revised 3rd Edition)
“Commercial” is defined as:
“1. Of, engaged in, or concerned with, commerce.
2. Having profit as a primary aim rather than artistic etc value;
…” (The Australian Concise Oxford Dictionary 3rd Edition).
“Activity” is defined as:
“….an exercise of energy or force; an active movement or operation.”
(Macquarie Dictionary Revised 3rd Edition)
30. “Commercial activity” therefore can be regarded as a business venture with a profit-making objective and, strictly speaking, will involve activity to generate trade and sales with a view to profit. This is particularly so when the volume of activity is on a large scale.
31. The respondent also referred to the decision of this Tribunal in Re Papps and Australian Postal Corporation [2004] AATA 833 at paragraph 78 where Senior Member Dwyer suggested that apart from the reserved letter service, “it would be hard to imagine what activities of Australia Post would not be ‘commercial activities’”. That statement was made in the context that if the reserved letter service would be regarded as a “commercial activity”, then all of its activities would have to be regarded as “commercial activities”. In that case, Senior Member Dwyer held that the reserved letter service was not a “commercial activity” of Australia Post.
32. The size of the Australia Post operation described by Mr Keen in his evidence and in his affidavit could undeniably be said to fit within the definition of “commercial activity”. Therefore, I find that Australia Post does carry on some of its activities on a commercial basis. It is noted that the reserved letter service is not a “commercial activity” of Australia Post.
Question 2: Is Australia Post Engaged In Activities “In Competition With” Private Sector Bodies?
33. Counsel for the respondent submitted that the words “in competition with” as contained in Section 7(3)(a) connotes interaction in a market where the behaviour of those participating is motivated by maximising exchange of goods and services and differentiating products and sources of supply (Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 188; Adamson v West Perth Football Club (1979) 39 FLR 199 at 224). It was also submitted that Australia Post competes with other suppliers of products which LPOs may choose to stock. Other optional services are also offered in a competitive environment.
34. Examples of products and services offered were stationery items, computer consumables, packaging materials, bill paying services, and parcel acceptance services. These examples are by no means exhaustive. However, profit-making is central to the operation of Australia Post and LPOs in their provision of these goods and services. I accept that the examples given are convincing evidence that Australia Post and LPOs compete with private sector bodies. I therefore find that Australia Post is engaged in activities which are “in competition with” private sector bodies.
Question 3: Was The Document Received Or Brought Into Existence “In The Course Of Or For The Purposes Of” The Carrying On Of Those Activities?
35. The respondent argued that:
“(a)a document will be received or brought into existence ‘in the course of’ carrying on of an activity if it was received or brought into existence during the carrying on of those activities; and
(b) a document will be received or brought into existence ‘for the purposes of’ the carrying on of an activity if it was received or brought into existence ‘as an ordinary incident’ of the carrying on of that activity.” (Re Pye and Australian Postal Corporation (supra); Ellison v Vukicevic (1986) 7 NSWLR 104 at 111; Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388 at 4000.
36. The respondent also submitted that the document sought by the applicant, that is, the list of LPOs, was created and maintained to enable Australia Post to –
“(a)pay LPOs the fees and commissions built into the LPO network in respect of the products and services provided by LPOs;
(b)to market new products and new services which are non-mandatory and which are available from the Australia Post approved range;
(c)to be able to notify current LPOs of changes in products;
(d)to be able to communicate with LPOs generally as part of the management of the LPO network including, for example, sending the licensee bulletin providing update information.”
37. The respondent also made various submissions in relation to the words “in respect of” as contained in Part II of Schedule 2 and Section 7(4) of the Act. Various authorities were provided to indicate the term is of broad application and that “…the question is whether there is a relevant sufficient or material connection or relationship, rather than merely a causal connection or relationship” (Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCFCA 221).
38. In considering the submissions made by the respondent, I accept that the document which contains the information sought was brought into existence and is maintained at least to undertake the four functions mentioned in paragraph 36 (a) to (d) above.
39. However, there is one further matter which needs to be considered in evaluating these submissions. That pertains to the fact that the corporate post offices and LPOs carry out a concurrent function of providing a “reserved service” and “commercial activities” as provided for by the APC Act. The “reserved service” involves a statutory obligation. The question therefore in relation to this additional consideration is, does that obligation impinge upon the purpose of the document sought and does it affect any exempt status under the Act.
40. Consideration of this issue is clearly a matter of statutory interpretation. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
“SECT 15AA
Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
41. This section enacted by means of the Statute Law Revision Act 1981 commenced a departure from the practice of interpreting a statute literally unless an ambiguity of meaning was evident. The contemporary approach is provided in the following words of the High Court of Australia:
“…the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.”(CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ).
42. Therefore, it is apparent that the context must be considered at the outset in clarifying the statutory meaning. Consideration of context must also be construed on the basis that the provisions of an Act “are intended to give effect to harmonious goals” (Project Blue Sky v ABA (1998)153 ALR 490 at 590 per McHugh J, citing Ross v R (1979) 141 CLR 432 at 440 per Gibbs J). This has now been consistently emphasised by the High Court. Recently, Kirby J said “…the purposive approach is the correct one to follow” (Palgo Holdings Pty Ltd v Gowans [2005] HCA 28 at paragraph 40). It is also one of the fundamental canons of statutory interpretation that all words in an Act should, prima facie, be given some meaning and effect (see DC Pearce and RS Geddes in “Statutory Interpretation in Australia” 5th Edition 2001).
43. Therefore, in considering the answer to Question 3 above, it is necessary to appreciate the context of both the Act and the APC Act. It is also useful to reflect on the context and development of the Australian Postal Corporation. At federation, postal and other communication services were seen to be essential services and were provided for under the Constitution of Australia Act 1901. Therefore, power to legislate for postal and telecommunications services is an “exclusive” power of the Commonwealth (see Section 51(v), Section 69 and Section 52(2) of the Australian Constitution).
44. At federation in 1901, a Department of the Commonwealth Government, the Post-Master General’s Department, was responsible for this function provided for in the Constitution. That remained the authorised provider of postal services until the Australian Postal Commission was established under the Postal Services Act 1975. The Australian Postal Commission was a statutory body with more flexibility in a business sense, than the former Post-Master General’s Department, which, as a department of the public service, was more regulated in its operations.
45. That Commission remained in force until a change in corporate practice and community expectations, as well as government’s desire to demand greater accountability from publicly funded bodies, which resulted in it creating the APC Act in 1989. This was not merely a statutory body controlled by government, but a new corporate entity with its own statute and a Board of Directors to govern its operations in a commercial sense.
46. The management and corporate governance of Australia Post are now far more modern and accountable, not only for the fundamental postal services which have been provided since federation, but also for the other commercial activities it undertakes and which relate to or are incidental to, the postal service.
47. These are contained in Part II of the APC Act. Section 14 of that Act deals with “the principal function” of Australia Post, which is “to supply postal services within Australia and between Australia and places outside Australia”. Section 15 provides that there is also a “subsidiary function” which is “to carry on, outside Australia, any business or activity relating to postal services”. Section 16 also provides that Australia Post can undertake other functions called “incidental businesses and activities”. These include any business or activity which is incidental to –
“(a) the supplying of postal services under section 14; or
(b) the carrying on of any business or activity under section 15.”
48. Therefore, supplying postal services (inside Australia, or outside Australia together with incidental businesses and activities related to supplying postal services) can be seen to be the core or central functions of Australia Post. But in Section 16(2) “without limiting” the incidental functions outlined above, Australia Post can carry on incidental businesses or activities either within or outside Australia which can be conveniently carried on by using “resources that are not immediately required in carrying out Australia Post’s principal or subsidiary functions” or where incidental businesses and activities can be carried on in the course of supplying postal services or carrying on a subsidiary function outside Australia.
49. It is clear that a number of the functions now performed are more in the form of commercial activities and are intended to be performed as a modern business with a profit-making objective (see Section 26 of APC Act).
50. However, it is also clear that the development of the postal service still maintains the essential function originally provided for in the Constitution. The commercial activities are provided alongside the postal services as specified in Sections 14 to 16. The notion of maintaining the public interest obligation is made explicit in Section 27 of the APC Act. That section refers to “community service obligations” in relation to the provision of a letter service. It specifies that the letter service must be made available at a single uniform rate of postage within Australia (Section 27(3)) and that, because of the “social importance” of the letter service, the service is to be provided to “all people in Australia on an equitable basis” [Tribunal emphasis] (Section 27(4)).
51. Australia Post and its Board of Directors must comply with any policies under Section 28 of the Commonwealth Authorities and Companies Act 1997 or any direction by the Minister (Section 28 APC Act). The separate community service obligation and the commercial obligations co-exist and do so consistently with the statutory requirements of that Act.
52. This is important as the service to the public as a whole may not necessarily be profit-making, while the commercial activities are intended to be profit-making and are managed on a purely commercial basis, and not because of a statutory obligation to provide postal services. Indeed, Mr Keen provided evidence orally and in his affidavit that Australia Post makes 75% of its profit from its commercial activities and only 25% from its statutory functions.
53. Therefore, it is apparent that the “reserved services” are a function of the Act (see Sections 29 and 30) and create a statutory right for members of the public and statutory obligations on Australia Post. However, the non-“reserved services” create no statutory rights. They are merely the commercial arm of Australia Post and it is more efficient and effective for carrying out the profit-making function. If Australia Post so decided and it was profitable for it to do so, it could perform all these services through Australia Post corporate offices. Indeed, it does offer the same commercial activities through its PostShops or corporate post offices, but chooses, as part of its commercial activities, to contract with persons to provide some of its services and/or products presumably where a larger infrastructure is not justifiable.
54. The Board of Directors of Australia Post must make decisions governing its operations and must be mindful of its statutory obligation with respect to “reserved services”, as well as having an eye to its commercial activities through PostShops and LPOs.
55. From the above I find that the “reserved services” are not “commercial activities” and are not carried on in competition with persons other than governments or authorities of governments. If that were not the case, then all of Australia Post’s activities would be exempt from the operation of the Act. Had that been the intention of Parliament, it would have been listed under Part I (Division 1 or Division 2) of Schedule 2 rather than Part II of Schedule 2. The only other conclusion that could otherwise have been put on the inclusion of Australia Post in Part II of Division 2 would be that the words “in relation to documents in respect of its commercial activities” were intended by Parliament to be meaningless. That would be an absurd interpretation and contrary to principles of statutory interpretation. A similar conclusion was reached by Senior Member Dwyer in Papps and Australian Postal Corporation (supra).
56. I understand the evidence of Mr Keen that Australia Post would wish to have control over the list purported to be exempt, in order that it maintains commercial viability and to control the brand of Australia Post. However, given the legal analysis above, and relating the statutory provisions to whether the applicant is entitled to the information he requests, I find that he should be entitled to be granted access to information on the list which relates to reserved services (which coincidentally is the same information as that which applies to commercial activities) although he should not be entitled to information where personal details are involved or which would only be relevant to the commercial activities which Australia Post undertakes with the LPOs. This latter information which relates to the names of licensees, and their phone numbers, where they would not otherwise be available in the telephone directory, should be exempt. In other words, in accordance with the purpose of the Act and the provisions considered, the applicant should be entitled to the following –
(a) the name of the LPO (the first column);
(b) the official street address of the LPO (the third column);
(c) the suburb and State of the LPO (the fourth column); and
(d) the postcode of the LPO (the fifth column).
57. The following material is exempt –
(a) the name of the licensee (the second column on the Australia Post list);
(b)the telephone numbers (the sixth and seventh columns on the Australia Post list);
(c)exhibits A and B of the Affidavit of Michael John Leonard Keen dated 8 December 2005.
58. Given that Australia Post is a very large organisation, and the document produced is a document prepared on a word processing or computerised system, the provision of the limited information above could not be regarded as an unreasonable burden. As stated at the hearing, this is essentially information that would be available to the public through the various phone books in Australia, albeit that this list is a more convenient summary than would otherwise be available to an applicant. I find that the provisions of the FOI Act authorise access to this convenient summary, at least to the subset of information contained in paragraph 56 above. It is further amplified in paragraph 60 below.
59. In conclusion, it is necessary to make a final determination on the preliminary orders made at the hearing under Section 64(1) of the Act and Section 35(2)(c) of the Administrative Appeals Tribunal Act 1975. In view of the decisions I have made above, I find that one document is partially exempt and the other two documents are fully exempt. I order that the documents provided to the Tribunal disclosing the full information and which are the property of Australia Post, should remain sealed at the Tribunal and should be returned to the respondent intact upon publication of this decision.
60. For the reasons outlined above The Tribunal decides, in accordance with the purpose of the Freedom of Information Act 1982 and the provisions considered, to vary the decision. Subsequently the applicant is entitled to the following information
(a) the name of the LPO (the first column);
(b) the official street address of the LPO (the third column);
(c) the suburb and State of the LPO (the fourth column); and
(d) the postcode of the LPO (the fifth column).
§ The Tribunal affirms the decision in respect of the following material, and hence the following are exempt –
(a) the name of the licensee (the second column on the Australia Post list);
(b)the telephone numbers (the sixth and seventh columns on the Australia Post list);
(c) exhibits A and B of the Affidavit of Michael John Leonard Keen dated 8 December 2005.
61. The Tribunal orders that the documents provided to the Tribunal disclosing the full information, and which are the property of Australia Post, should remain sealed at the Tribunal and should be returned to the respondent intact upon publication of this decision. Access to the more limited information decided as not exempt and contained in paragraph 60 above, should be made available to the applicant by the respondent within a reasonable period of time.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 19 December 2005
Date of Decision 22 February 2006
The Applicant was not represented
Solicitor for the Respondent Mr M Batskos
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