Papps and Australian Postal Corporation
[2004] AATA 833
•10 August 2004
DECISION AND REASONS FOR DECISION [2004] AATA 833
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) № V2003/1248
)
GENERAL ADMINISTRATIVE DIVISION ) Re NICK PAPPS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Date10 August 2004
PlaceMelbourne
Decision 1. The Tribunal sets aside the decision under review.
2. The matter is remitted to Australia Post for reconsideration in accordance with the directions:
(i) that access be given in accordance with s 18 of the Freedom of Information Act 1982 (“the Act”), to documents requested by Mr Papps in paragraph (1) of his letter of 27 August 2003;
(ii) that s 24(5) of the Act does not apply to the request, as it is not apparent from the nature of the documents, as described in the request, that all of the documents to which the request relates are exempt documents under s 7 of the Act.
[sgd] Joan Dwyer
Senior Member
FREEDOM OF INFORMATION – request for access to documents – request refused in reliance on s 24(5) Freedom of Information Act 1982 ("the Act") – requirement that for s 24(5) to apply it must be apparent from nature of documents requested that all documents to which request relates be exempt documents – whether letter containing four numbered requests is one request or four separate requests – finding that letter contained four separate requests – Australia Post entitled to rely on s 24(5) in relation to each request– whether apparent from nature of documents requested that all documents are exempt under s 7(2) and 7(4) of the Act – whether all documents requested in relation to the Corporate Security Group are documents in respect of Australia Post’s commercial activities – finding that reserved letter services are not commercial activities – finding that Corporate Security Group activities are not commercial activities when they relate to reserved letter services – decision under review set aside.
Acts Interpretation Act 1901 s 23
Australian Postal Corporation Act 1989 ss 25, 26, 27, 29, 30.
Freedom of Information Act 1982 ss 7(2), 7(4), 15, 16, 24(5), 37(2)(b), 40(1)(d), 55
Freedom of Information Act 1982 (Vic) s 25A(5)Freedom of Information Amendment Act 1991 s 11
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Ellison v Vukocevic (1986) 7 NSWLR 104
Re Olexander and Department of Premier and Cabinet [2002] VCAT 497
Re Wilson and Department of Premier and Cabinet (2001) 16 VAR 455
Wallis v Downard Pickford (North Queensland) Pty Ltd (1993‑1994) 179 CLR 388Young v Wicks (1986) 79 ALR 448
REASONS FOR DECISION
10 August 2004
Senior Member Dwyer
1. This is an application under s 55 of the Freedom of Information Act 1982 (“the Act”) for review of a reviewable decision made on 28 October 2003 (T13).
2. At the hearing, Mr Pizer of Counsel appeared for Mr Papps. Mr Hanks QC appeared with Mr Batskos for Australian Postal Corporation (“Australia Post”). The Tribunal had before it the documents (“the T Documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the exhibits tendered during the hearing. Evidence for Australia Post was given by two of its employees – Mr Sharp, the Manager, Security Operations, Corporate Security Group, and Mr Pollack, the Manager, Letters Strategy and Planning. After the hearing, the parties by consent by letter of 26 May 2004, sought leave to provide the Tribunal with further material, as follows:
(1)section 24 of the Act as it stood before the 1992 amendments;
(2)pages 95-97 and 111-113 of the Senate Committee Report (1987);
(3)the second reading speech for the 1991 Bill – House of Representatives Debates, 3 September 1991, pages 505 – 507; and
(4)the explanatory memorandum for the 1991 Bill.
That material was received in evidence as further material tendered by consent.
3. On 7 August 2003, Australia Post received a request from Mr Papps, a Herald Sun journalist, for access to documents in accordance with the Act. After some communication between Mr Papps and Mr Caprackas, the Australia Post Freedom of Information (“FOI”) officer, an amended request was sent by Mr Papps on 27 August 2003 and received by Australia Post on 29 August 2003.
4. The amended request read as follows:
(1) I am requesting documents in relation to the activities of the Corporate Security Group, specifically summaries or documents summarising alleged crimes investigated by the group in the last three years and the outcomes of those investigations.
I am content with the documents excluding the identity of the complainants, suspects, witnesses and informants.
This request would include summaries of investigations of individuals employed by Australia Post and those external to the organisation.
(2) As part of my request I am also seeking details on the number (not percentage) of letters and parcels received by Australia Post that were not delivered to the intended recipient in the past three years. The detail I am requesting would include any statistics on the number of parcels and envelopes believed to have been stolen by Australia Post employees in the past 36 months.
(3) I am also seeking records or reports in relation to screening of mail by Australia Post. Specifically, how many overseas letters and parcels were screened by Australia Post in the last 12 months, what form did the screening take and what was found, ie. a breakdown of the illicit imports into categories such as drugs, restricted imports, weapons etc.
I understand the above request (3) has now been forwarded to AQIS and Customs and am happy for Australia Post to respond separately to this request when a reply is received from the aforementioned agencies within a reasonable time frame or for the agencies to contact the writer directly to deal with these requests, whichever is more expeditious.
(4) I am also seeking details on the number and nature of prohibited or dangerous goods found by Australia Post during screening operations in the past three years.
5. The primary decision of 5 September 2003 (T11, p19) did not release any documents. Nor did it identify the documents held by Australia Post, to which the request applied. It did however claim exemptions in general terms under ss 37(2)(b), 7(2), 7(4) and 40(1)(d) of the Act.
6. On 26 September 2003, Corrs Chambers Westgarth, lawyers acting on behalf of the Herald and Weekly Times Limited, sought internal review of the primary decision.
7. Insofar as relevant to this hearing, the decision on internal review provided as follows (T13):
I have determined that the provisions of Section 24, subsection 5, of The Act have application to the request in this case, and on the basis of that Section, I have determined that identification of any or all of the documents to which the original request of the modified quest [sic] relates is not required.
8. At the commencement of the hearing, Counsel told me that the only category of the request as to which there was an issue requiring determination was that numbered (1) in the request of 27 August 2003:
Documents in relation to the activities of the Corporate Security Group, specifically summaries or documents summarising alleged crimes investigated by the group in the last three years and the outcomes of those investigations.
9. I was informed that paragraph (3) of the request had been referred to AQUIS and Customs, and that there was agreement between the parties as to paragraphs (2) and (4).
THE ISSUE AS TO s 24(5) OF THE ACT
10. Mr Pizer’s first submission was that s 24(5) of the Act can only be relied on where it applies to the whole of a request. Section 24(5) provides as follows:
24(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if:
(a)it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and
(b)either:
(i)it is apparent from the nature of the documents as so described that no obligation would arise under section 22 in relation to any of those documents to grant access to an edited copy of the document; or
(ii)it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.
11. Australia Post contends that the documents are exempt documents under paragraph (b) of the definition of “exempt document” in s 4(1) of the Act, because of the operation of s 7(2) and (4) of the Act. Those provisions provide:
4(1) In this Act, unless the contrary intention appears:
…
exempt document means:
…
(b)a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
…
7(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.
…
(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.
12. Part II of Schedule 2 is headed “Agencies exempt in respect of particular documents”. Division 1 includes “Australian Postal Corporation, in relation to documents in respect of its commercial activities”. Section 7(3) of the Act contains a definition of the term “commercial activities.” It provides:
(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.
13. Mr Pizer submitted in the applicant’s Statement of Facts and Contentions:
12. The decision under review was made under section 24(5) of the Act. That section provides that, if two conditions are satisfied, an agency may refuse to grant access to the documents in accordance with the request:
(a) without having identified any or all of the documents to which the request relates; and
(b) without specifying, in respect of each document, the provision or provisions of the Act under which that document is claimed to be an exempt document.
13. The first condition is that it must be apparent from the face of the request that all of the documents sought are exempt. It follows that, if it is apparent from the face of the request that at least one of the documents sought may not be exempt, the first condition is not satisfied and the agency cannot refuse access under section 24(5).
See Re Eaton and CORE — The Public Correctional Enterprise (unreported, VCAT, Judge Strong VP, 3 July 2002).
14. The second condition is that it must be apparent from the face of the request that there would be no obligation to provide the Applicant with an edited copy of any of the documents sought (unless it is clear from the face of the request or from consultation with the Applicant that the Applicant would not wish to have access to such a copy).
15. It is not permissible to refuse to process part of a request under section 24(5). The word “request” in section 24(5) means the whole of the request, so that an agency cannot refuse to process part of a request under the provision.
See Re Olexander and Department of Premier & Cabinet (unreported, VCAT, Judge Strong VP, 23 May 2002). See also section 16(3 A) of the Act.
16. In the present case, Australia Post seeks to rely upon section 24(5) in respect of part of the Applicant’s amended request (namely, the documents falling within Category 1). Section 24(5) cannot be relied upon in that manner. For this reason alone, the decision under review ought be set aside.
14. In answer, Mr Batskos submitted, at paras 3.1-3.5 of the respondent’s Statement of Facts and Contentions in Reply:
3.1 The reference, in s 24(5)(a) of the Fol Act, to “all of the documents to which the request is expressed to relate” is not (as the Applicant claims in paragraph 16 of his Statement) a reference to all of the documents included in the four categories of document included in the Applicant’s amended request (at T10).
3.2 In his amended request, the Applicant identified four distinct categories of documents to which access was sought. Only category 1 remains in dispute between the parties (paragraph 1.4 of Australia Post’s First Statement; paragraph 6 of the Applicant’s Statement).
3.3 For the purposes of s 24(5)(a), the only request before the Tribunal is the request for access to the category 1 documents; and, if s 24(5)(a) requires that all of the documents included in a request appear to be exempt documents, the only documents that are relevant are the category 1 documents.
3.4 In answering the questions posed by s 24(5)(a) and (b) of the Fol Act, the Tribunal need not be satisfied absolutely or beyond reasonable doubt that there is a [sic] logical possibility that:
(a) some part of the documents requested may not be exempt; or
(b)some part of the documents requested may be apt for edited release under s 22 of the FoI Act.
Re Wilson and Department of Premier and Cabinet (2001) 16 VAR 455 at [24).
3.5 Further, the Respondent contends that, whatever the effect of the Victorian equivalent considered in Re Olexander and Department of Premier and Cabinet [2002) VCAT 497, the Fol Act permits an agency to invoke s 24(5) in respect of a particular category of documents that are the subject of a request for access; the operation of s 24(5) cannot be neutralised by an applicant for access including, in his or her request, a category of documents that could not fall within s 24(5).
15. In support of his argument that one request can not be characterised as containing several requests unless the Act so provides, Mr Pizer referred to the Freedom of Information Amendment Act 1991 (“the Amendment Act”). The Amendment Act inserted a new section, s 16(3A), and, at the same time, inserted s 24(5) in its current form. Section 11 of the Amendment Act provided as follows:
11 Section 16 of the Principal Act is amended:
(a) by inserting after subsection (3) the following subsection:
"(3A) Where:
(a)a request is made to an agency for access to more than one document; and
(b)one or more of those documents is a document to which subsection (1), (2) or (3) applies;
this section applies to each of those documents as if separate requests for access had been made to the agency in respect of each of those documents.";
(b)by omitting subsection (5) and substituting the following subsection:
"(5) Where a request is transferred to an agency in accordance with this section, the request is to be taken to be a request
(a)made to the agency for access to the document that is the subject of the transfer; and
(b)received by the agency at the time at which it was first received by an agency." [emphasis added]
16. Mr Pizer submitted that, in the absence of a specific provision such as that in s 16(3A), a request may not be treated, “as if separate requests for access had been made to the agency in respect of each of [the] documents” covered by a request.
17. Mr Hanks, in reply, referred to various sections of the Act which show that the terminology in the Act is imprecise as to whether a request can cover only one document, or as to whether one request may cover many documents. Section 15 refers to “a request” for access “to a document”. Section 18 refers to access being given to “the document” in response to “a request”. Section 24(1) refers to access to “documents” being granted in accordance with a “request”. Section 24(5)(a) refers to “access to the documents in accordance with the request”.
18. Some sections, such as s 15, are consistent with a request covering only one document, other sections, such as s 24, clearly accept that one request may cover many documents. As Mr Hanks pointed out, that is not surprising, bearing in mind s 23 of the Acts Interpretation Act 1901, which provides:
In any Act, unless the contrary intention appears:
…
(b)words in the singular number include the plural and words in the plural number include the singular.
THE ISSUE AS TO SECTION 24(5) OF THE ACT
19. The question in this hearing is not whether a request for access may be refused under s 24(5)(a) of the Act in relation to one class of document within a request which is claimed to be exempt. That is clearly not allowed by s 24(5)(a). The question here is rather whether the one letter of request sent by Mr Papps on 27 August 2003 may be characterised as including four separate numbered requests for access to different categories of documents.
20. In Young v Wicks (1986) 79 ALR 448, there was a request made by letter to the Department of Aviation. It stated:
…
I would like to make three separate requests for information and documents under the Freedom of Information Act.
The letter then sets out the three requests under headings Request 1, Request 2, Request 3.
21. Unfortunately, Mr Papps did not expressly state whether he was making one request with four parts or four separate requests. It seems that he did not turn his mind to that question, as his letter of 27 August 2003 is ambiguous as to that issue. He used the singular term "request" as if the letter was one request, but also at times wrote as if the letter contained more than one request. He used the word “request” as follows:
1st paragraph: ...I have modified the FOI request.
2nd paragraph: Please find below the modified request … I have taken on board your concerns over the potentially voluminous nature of the request…
3rd paragraph: (1) I am requesting documents in relation to the activities of the Corporate Security Group, specifically…
5th paragraph: This request would include…
6th paragraph: (2) As part of my request I am also seeking…
7th paragraph: (3) I am also seeking records or reports in relation to screening of mail by Australia Post. Specifically, how many overseas letters and parcels were screened by Australia Post in the last 12 months…
8th paragraph: I understand the above request (3) has now been forwarded to AQIS and Customs and am happy for Australia Post to respond separately to this request when a reply is received from the aforementioned agencies …these requests …
9th paragraph: (4) I am also seeking details on the number and nature of prohibited or dangerous goods found by Australia Post during screening operations in the past three years…
10th paragraph: …this new modified request…
(Emphasis added to show where Mr Papps characterised his letter as containing more than one request.)
22. Thus, Mr Papps, in his letter of request of 27 August 2003, at times wrote as though the whole letter was one request with a number of parts. At other times, he referred to the request he numbered (3) as a separate request. By implication, it would seem that he also regarded the request in numbered paragraph (4) as a separate request.
23. The question is whether the letter of 27 August 2003 should be construed as containing one request with four parts, or as three or four separate requests. It is clear from the language used that the numbered paragraphs contain requests for different types of documents, although numbered paragraph (2) states that the request contained in that paragraph is “part of my request.” It cannot be part of the request in paragraph (1), because the subject matter of the numbered paragraphs (1) and (2) is different, although related. Paragraph (1) requests documents in relation to the activities of the Corporate Security Group. Paragraph (2) seeks details on the number of letters and parcels not delivered to the intended recipient, including statistics on the number believed to have been stolen.
24. Mr Pizer submitted that I should follow the decision of Judge Strong, Vice President of the Victorian Civil and Administrative Tribunal (“VCAT”) in Re Olexander v Department of Premier and Cabinet [2002] VCAT 497, delivered 23 May 2002. Judge Strong held that s25A(5) of the Freedom of Information Act 1982 (Vic) (“the Victorian Act”), which is in identical terms to s 24(5) of the Act, could not be relied on unless “all of the documents” covered by the whole request are exempt documents. His Honour pointed out that it would be “eminently sensible” to construe the provision as if each class of documents covered by the request were a separate request, but he held that he could not give effect to “this sensible construction”.
25. Judge Strong in Olexander was referred to the VCAT decision of Deputy President MacNamara in Re Wilson and Department of Premier and Cabinet (2001) 16 VAR 455. In Wilson, a claim based on s 25A(5) of the Victorian Act was upheld, notwithstanding the fact that the claim of exemption was made with respect to only part of the original request. Judge Strong, in Olexander, said (at para 13):
I can but assume that the parties in Re Wilson were content to conduct the review on the basis that the request could be split and that Deputy President Macnamara – sensibly, if I may say so with respect – was agreeable to that course. Many things can be done by consent.
26. His Honour continued at paras 14 to 16:
14. But in this case Mr Williams, for the applicant, has taken the point and it therefore falls to me to determine whether “the request” in paragraph (b) can be given the meaning for which Mr Morris contends.
15. The answer, in my opinion, is “no”. Section 25A, together with s24A, were added to the Act in 1993. They differ from other provisions inasmuch as they refer to a request for access to a document. But to my knowledge there has never been a requirement, or practice, that a separate request be made for every document to which access is sought. A request for multiple documents has always been treated as a single request. Sections 24A and 25A assume this practice. Looking only at the original sections of the Act, and ignoring the long-standing practice to which I have referred, it might be argued that a request for access to ten documents is in fact ten requests. It could not, however, be argued that the number of requests is to be determined by the number of classes of document. Then when one looks at the different language of ss 24A and 25A, it is evident that the ‘one request/one document’ argument is totally untenable and the ‘one request/one class’ argument even less so.
16. Amendment of s 25A is worthy of consideration.
27. With respect, although I agree with Judge Strong that the language of the Act shows that the “one request/one document” argument is “totally untenable”, I do not understand how the language led him to conclude that the “one request/one class” argument is “even less so”.
28. However, there are two respects in which this matter is distinguishable on the facts from Olexander. The request in that matter is set out in paragraph 1 of the reasons for decision. The request “as refined” was as follows:
Final Reports/Summary Documents for all Polling, Attitudinal Research Local Area Research, Adhoc Research and Consumer Research completed by, or completed for the Department of Premier and Cabinet or the Officers of the Ministers in the Department of Premier and Cabinet since 20 October 1999.
29. In Olexander there was one request for a number of classes of documents. In the matter currently before me, the one letter of 27 August 2003 contains four separately numbered requests. They seek documents related to different matters investigated by Australia Post:
(1)Summaries of alleged crimes investigated by the Corporate Security Group in the last 3 years.
(2)Number of letters and parcels not delivered to the intended recipient in the last three years, including statistics as to the number believed to have been stolen.
(3)Number of letters and parcels screened in last 12 months and results of screenings.
(4)Number and nature of prohibited or dangerous goods found during screenings in past three years.
30. With respect, I share the view of Judge Strong that it would be “eminently sensible” to construe s 24(5) so as to allow a respondent to rely on it as to a class or category of request. His Honour held that was not permissible in reference to the request which was before him. However, I find that the letter of request of 27 August 2003 in this matter contains four separate numbered requests.
31. The second point of distinction is that, as Mr Hanks pointed out, when the four requests in this matter were received by the respondent on 29 August 2003, there were a number of potential documents to which the requests related. However, by the time the matter came on for hearing, one request (3) had been dealt with by referral to two other agencies, and the requests for documents (2) and (4) had been resolved between the parties. At the commencement of the hearing, the only request in issue was that in numbered paragraph (1).
32. In my view, s 16(3A) of the Act, which was inserted by the Amendment Act, does not imply that, apart from under s 16(3A), each document containing a request for documents must, for all purposes under the Act, be treated as containing only one request for access to documents under the Act. What s 16(3A) does is address the specific situation where a request for documents applies to some documents which are in the possession or control of agencies other than the one to which the request has been made. It provides a mechanism so that, when an agency receives a request for documents, some of which are in the possession of different agencies, the one request is notionally divided into different requests. That allows each sub‑request to notionally be transferred to the agency holding that document. Section 16(5) then imposes obligations on each agency to make its own response to the request in accordance with the Act, and the time limit for a decision runs from when the request was first received by an agency.
33. If the Act had not been amended by inserting s 16(3A), the agency which received the request would have had either to hold the request and deal with it, or else send the whole request to the other agency. The terms of s 16(1), (2) and (3) did not provide a process for dealing with a request where some but not all of the documents covered by the request were, to the knowledge of the agency receiving the request, in the possession of another agency, or where the subject matter of one or more of the requested documents was more closely connected with the functions of another body.
34. I decide that in this matter Australia Post may rely on s 24(5) of the Act in relation to the request contained in numbered paragraph (1) of the letter of 27 August 2003, so long as it is apparent from the nature of the documents as described in request numbered (1), that all of the documents to which that request relates are exempt documents.
THE ISSUE AS TO s 7 OF THE ACT – DOCUMENTS IN RESPECT OF
AUSTRALIA POST’S COMMERCIAL ACTIVITIES
35. Before considering whether all of the documents to which request (1) relates are exempt under s 7 of the Act, it is necessary to refer to the role of Australia Post and the nature of its activities.
36. The respondent's Statement of Facts and Contentions dated 25 March 2004 acknowledged that, when Australia Post carries out some of its activities, it is not carrying on an activity on a commercial basis in competition with private sector organisations. Paragraphs 3.1–3.5 of Australia Post’s Statement of Facts and Contentions, dated 25 March 2004 state:
3.1Almost all activities carried on by Australia Post (apart from providing its reserved mail service and production of stamps) are carried on in competition with private sector organisations. Those activities include:
3.2As a major organisation with an exceptional corporate reputation, providing resources in mails and parcels, retail, transport, banking and finance, electronic commerce, philately, and property handling a high volume of attractive items, Australia Post’s operations must be protected by an effective crime risk management program.
3.3Australia Post relies on the Corporate Security Group to maintain its image and reputation in the market place (and therefore its competitive position) by providing an effective and professional unit capable of both pro-active crime prevention operation and effective response capabilities to successfully investigate incidents of allegations of crime and, where appropriate, to prosecute offenders.
3.4To the extent that there exist within Australia Post any summaries or documents summarising alleged crimes investigated by the Corporate Security Group, those documents would have been created as part of the risk management process within Australia Post and are directly in respect of the various aspects of Australia Post’s commercially competitive activities. (emphasis added)
37. The applicant’s Statement of Facts and Contentions dated 8 April 2004, in paragraphs 8 to 11 set out the facts as follows:
8.It is common ground that Australia Post carries on a number of activities on a commercial basis in competition with private sector organisations. These activities include:
(a)the delivery of letters and parcels nationally (with the exception of the delivery of standard postal articles by ordinary post1);
(b)the delivery of letters and parcels internationally;
(c)the provision of stationery and other general office supplies;
(d)the provision of billing and financial services; and
(e)the provision of “integrated logistics and fulfilment services”.
9.It also appears to be common ground that, when it performs a “Community Service Obligation”, Australia Post is not carrying on an activity on a commercial basis in competition with private sector organisations. One of Australia Post’s community service obligations is to deliver standard postal articles at a uniform price (currently 50 cents) from any place in Australia to any other place in Australia.
10.Australia Post has a Corporate Security Group (“the CSG”). The CSG is responsible for investigation allegations of wrongdoing “in any and all parts” of Australia Post.
11.The CSG “refers results of investigations under the Commonwealth Criminal Code Act 1995, the Commonwealth Crimes Act 1914, the Australian Postal Corporation Act 1989 and other relevant statutes to either the Director of Public Prosecutions or such other relevant authorities eg Federal or State Police. (emphasis added)
…
38. Australia Post responded with a document dated 20 April 2004, headed "Respondent's Statement of Facts and Contentions in Reply". It asserted it was not common ground that, when Australia Post delivers standard postal articles by ordinary post, it is not carrying on an activity on a commercial basis. Paragraphs 2.1‑2.5 state:
2.1It is not common ground (as claimed in paragraphs 8 and 9 of the Applicant’s Statement) that, when Australia Post delivers standard postal articles by ordinary post, it is not carrying on an activity on a commercial basis in competition with private sector organisations.
2.2That activity is carried on in competition with document exchange services: see s 30(1)(ma) of the Australian Postal Act 1989 (the APC Act); cf Pac-Rim Printing Pty Ltd v Australia Post (2000) 97 FCR 445 at [9], [18].
(a)The services provided by document exchange services pursuant to s 30(1)(ma) of the APC are services in competition with Australia Post’s standard postal article service.
(b)There is “at least one private sector supplier of the … services in the market …and consumers have a genuine choice between the private sector supplier(s) and Australia Post” (paragraph 23 of the Applicant’s Statement).
2.3The delivery of standard postal articles by ordinary post is carried on “on a commercial basis” (contrary to the claim in paragraph 25 of the Applicant’s Statement).
(a)Although Australia Post is required, by s 27 of the APC Act, to provide a letter service at a single uniform rate of postage within Australia, the performance of that function is subject to the requirement (imposed by s 26 of the APC Act) that as far as practicable, Australia Post perform its function in a manner consistent with sound commercial practice.
(b)The cost of providing the standard letter service is funded by earnings from the provision of that service: see paragraph 9 of Mr Sharp’s second affidavit.
2.4To the extent that paragraph 3.1 of Australia Post’s Statement stated that the reserved mail service was not carried on in competition with private sector organisations, that statement was incorrect.
2.5Further, it may reasonably be expected that in the foreseeable future Australia Post will face increased competition in the carrying on of its community service activities: see Postal Services Legislation Amendment Bill 2003, Schedule 1, clauses 12, 14. (emphasis added)
39. Under Part II of Schedule 2 of the Act, Australia Post is exempt “in relation to documents in respect of its commercial activities”. Section 7(3) of the Act, as set out in paragraph 12 of these reasons, defines “commercial activities”. The definition contains two alternatives. Either the activities must be carried on by an agency on a commercial basis “in competition with persons other than governments or authorities of government”, or the term can cover activities “that may reasonably be expected in the foreseeable future to be carried on…on a commercial basis in competition with persons other than governments or authorities of governments”.
40. Thus, Australia Post may only rely on s 24(5) of the Act if it is apparent, from the nature of the documents covered by the request in numbered paragraph (1) of the letter of 27 August 2003, “that all of the documents to which the request is expressed to relate are exempt documents” by virtue of being documents in respect of Australia Post’s commercial activities, bearing in mind the definition of "commercial activities" in s 7(3) of the Act and the effect of s 7(4) of the Act.
41. The request in numbered paragraph (1) is not expressly restricted to documents in respect of Australia Post’s commercial activities. It could cover documents in relation to the activities of the Corporate Group summarising alleged crimes involving the letter service or standard postal service. It is therefore necessary to decide whether or not the letter service or standard postal service is conducted by Australia Post as one of its commercial activities. In order to decide that issue, reference must be made to the Australian Postal Corporation Act 1989 (“the Postal Act”) and to the evidence at the hearing.
42. Part 3 of the Postal Act deals with Australia Post’s obligations and reserved services. Sections 25, 26 and 27 provide:
25 Obligations generally
Australia Post has the following obligations:
(a) its commercial obligation under section 26;
(b)its community service obligations under section 27;
(c)its general governmental obligations under section 28.
26 Commercial obligation
Australia Post shall, as far as practicable, perform its functions in a manner consistent with sound commercial practice.
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.
…
43. Division 1A of Part 3 of the Postal Act provides for performance standards. Section 28C provides:
(1) The regulations may prescribe performance standards (the prescribed performance standards) to be met by Australia Post.
(2) The prescribed performance standards must relate to:
(a)the frequency, speed or accuracy of mail delivery; or
(b)the availability or accessibility of:
(i)post-boxes or other mail lodgement points; or
(ii)offices of Australia Post or other places from which Australia Post products or services may be purchased.
44. Division 2 of Part 3 of the Postal Act is headed “Reserved services”. It provides, in s 29:
(1) Subject to section 30, Australia Post has the exclusive right to carry letters within Australia, whether the letters originated within or outside Australia.
(2) The reservation of services to Australia Post under subsection (1) extends to:
(a)the collection, within Australia, of letters for delivery within Australia; and
(b)the delivery of letters within Australia.
(3) Australia Post also has the exclusive right to issue postage stamps within Australia.
45. Section 30 is headed “Exceptions to reserved services”. It provides in s 30(1), so far as relevant:
(1) The reserved services do not include any of the following:
(a)the carriage of a letter weighing more than 250 grams unless the letter consists of an envelope, packet, parcel, container or wrapper containing 2 or more separate letters;
(b)the carriage of a letter relating to goods that is sent and delivered with the goods;
(c)the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover;
(d)the carriage of a letter otherwise than for reward;
(e)the carriage of a letter within Australia for a charge or fee that is at least 4 times the then rate of postage for the carriage within Australia of a standard postal article by ordinary post;
…
46. Two Australia Post employees swore affidavits and gave evidence intended to establish the factual basis for paragraphs 3.2‑3.5 of Australia Post's Statement of Facts and Contentions dated 25 March 2004, as set out in paragraph 36 of these reasons. As set out in paragraph 38 above, Australia Post, in its Statement of Facts and Contentions in Reply, advanced a different view to that in paragraph 3.1 of its Statement of Facts and Contentions. It no longer accepted that the reserved services were not carried on in competition with private sector organisations.
47. Mr Sharp is the Manager, Security Operation in the Corporate Security Group of Australia Post. In his affidavit (R1), Mr Sharp referred to the powers of Australia Post under the Postal Act. It is not in issue that many of those powers relate to commercial activities. In paragraphs 9 and 10 of his affidavit, Mr Sharp stated as to the reserved mail service:
9.As stated in Australia Post’s service charter …, Australia Post is required by law to provide a universal letter service which is accessible to all Australians and, in addition, to provide a standard letter service at a uniform price (currently 50 cents) from anywhere to anywhere in the country. This means that the cost of delivering some letters can be many times higher than the postage charged. A community service obligation (CSO) cost occurs when the real cost of delivery of that service exceeds the charge for the service. The cost of meeting Australia Post’s CSOs, currently estimated to be around $80 million each year, is funded by earnings from the reserved services (letters up to 250 grams) within Australia Post’s letters business. It does not receive any taxpayer money from the Government to meet the cost of its CSOs. To the extent that there is any shortfall, Australia Post must meet this from the commercially competitive aspects of its business operations.
10.Apart from that reserved service which Australia Post must provide and provision of stamps, generally all other activities engaged in by Australia Post in provision of goods or services is [sic] conducted in competition with private sector bodies. This is explained in more detail below. This is reiterated in the Service Charter, which provides:
“Other Services
Through our network of retail outlets, where commercially viable, we will meet customer needs for parcels, bill payment, bank deposits and withdrawals and like services. In addition, we will supply your stationery, packaging and similar product needs.
Conveniently located, suitably equipped and adequately staffed retail outlets will be provided to ensure that service is prompt and of the high quality you expect.”
48. Mr Sharp in his affidavit stated that Australia Post’s letter and parcel deliveries are in direct competition with services such as the Ausdoc Document Exchange Service (DX). He pointed out that Australia Post Retail Outlets compete with other similar suppliers such as Officeworks. He also discussed various other commercial activities undertaken by Australia Post in direct competition with private enterprise.
49. The concluding paragraphs of the affidavit (paragraphs 24 and 26) read:
24.As a major organisation with exceptional corporate reputation, and providing services in mails and parcels, retail, transport, banking and finance, electronic commerce, philately and property, and which handles a high volume of attractive items, Australia Post’s operations must be protected by an effective crime risk management program. A risk management strategy of having a unit or body to investigate allegations of wrongdoing in any and all parts of Australia Post is part of normal corporate practice in any large organisation in order to maintain reputation, integrity, efficiency and profitability. Australia Post relies on the Corporate Security Group to maintain its image and reputation in the market place by providing an effective and professional unit capable of both pro-active crime prevention operation and effective response capabilities to successfully investigate incidents of allegations of crime and, where appropriate, to prosecute offenders. The Corporate Security Group Charter is:
“To deliver highest quality security/investigation solutions and services to anticipate, and meet, our customer needs, and ensure a safer, more profitable, and innovative business.”
…
26.To the extent that there exist within Australia Post any summaries or documents summarising alleged crimes investigated by the Corporate Security Group, those documents would have been created as part of the risk management process within Australia Post and are directly in respect of the various aspects of Australia Post’s commercially competitive activities. That is, those documents would have been brought into existence in the course of (and for the purposes of) the carrying on by Australia Post of its commercial activities conducted in competition with private sector bodies as described above. The risk management function is an integral part of the normal commercial and competitive operation of a corporate entity such as Australia Post and enables Australia Post to operate efficiently and consistently with its corporate objectives and functions, and enhances Australia Post’s capacity to compete for business in the commercial environment in which Australia Post operates.
50. In his evidence, Mr Sharp said that the Crime Risk Management Program does not draw any distinction between the community service obligation aspects of Australia Post, which include the reserved services, and the other commercial activities of Australia Post. He said the business as a whole is covered by the Crime Risk Management Program. He explained that if issues arise which “damage our brand”, such as the theft of postal articles, that will flow to the commercial activities and will have an impact on the brand as a whole.
51. The Charter of the Corporate Security Group includes a description of the “Role” of that group. It includes paragraphs 2.4 and 2.5 which provide:
2. ROLE
In order to carry out its Charter, the Corporate Security Group (CSG), will:
…
2.4investigate postal offences legislated in the Commonwealth Criminal Code Act 1995, the Commonwealth Crimes Act, 1914, the Australian Postal Corporation Act 1989 and other relevant statutes.
2.5refer the results of investigations, including where necessary, Briefs of Evidence, to either the Director of Public Prosecutions or such other relevant authority, eg Federal or State Polices; (such referral in accordance with CSG's 100% referral policy on all investigations where prima facie evidence exists);
52. Mr Sharp said that, as set out in the Charter, the theft of an item of standard C (reserved services) mail would be investigated, reported on and referred to the Director of Public Prosecutions. He said the Corporate Security Group would keep copies of its report which would summarise the alleged crime and the result of the Group’s investigation.
53. Mr Sharp said that, although the primary purpose of the reserved letter service is to provide a letter service as part of Australia Post’s community service obligations, the aim is for that service to be commercially viable.
54. Mr Sharp discussed the general process of handling standard mail. He said investigation of any allegation of theft or tampering is not part of the general process. Such matters would probably be referred to the Corporate Security Group. He said that it makes no difference to the Corporate Security Group’s Crime Prevention Program whether the incident being investigated relates to reserved services or to other activities of Australia Post.
55. The other witness for Australia Post was Mr Pollack. He is Australia Post’s Manager, Letters Strategy and Planning. He has worked with Australia Post for almost 20 years. Mr Pollack swore an affidavit (R2) in which he explained that it is his responsibility to analyse the market for Australia Post’s letter business, including planning in relation to future letter volumes.
56. In paragraphs 6, 7, 8 and 9 of his affidavit, Mr Pollack stated that the reserved letter service is conducted on a commercial basis. He said it is carried on in order to, and does, make a profit. He stated:
6.The reserved service is conducted on a commercial basis in that it is carried on in order to make a profit. This is evidenced by the fact that, in the 2002/2003 financial year, Australia Post made a profit before interest and income tax of $148.2 million solely from its reserved service activities. Now produced to me and marked "MGP 1" is a copy of an extract of the 2002/2003 Annual Report showing the profit on reserved services.
7.The letter service is conducted on a commercial basis in that it is carried on in order to make a profit. That is, there is an element of profit in the charges imposed by Australia Post in the provision of the letter service. This is evidenced by the fact that in the 2002/2003 financial year, Australia Post made a profit before interest and income tax of $176.4 million solely from its letter services activities. Now produced to me and marked "MGP2" is a copy of an extract of the 2002/2003 Annual Report showing the profit on the letter service.
8. The letter service (which includes the reserved service) is conducted in competition with at least one private sector organisation. This is reflected in the numerous exceptions to the reserved service set out in section 30 of the APC Act. For example, section 30(1)(ma) of the APC Act enables a document exchange service such as that conducted by Toll Holdings and known as DX to be conducted. DX is able to carry letters in the course of a document exchange service and this activity can include letters otherwise falling within Australia Post's reserved service.
9.Competition is also faced by Australia Post's reserved service because of the different mediums that can carry written communications. For example, fax, email and sms text messages can and do provide direct competition to the letter service (see section 30(1)(n) of the APC Act). Communications using those mediums are provided on a commercial basis by a wide variety of private sector enterprises.
57. When Mr Pollack gave evidence, he was asked about the discrepancy between his evidence in his affidavit, to the effect that Australia Post makes a profit from its reserved services and Mr Sharp’s reference, in paragraph 9 of his affidavit, to Australia Post making up any shortfall in meeting the costs of community service obligations.
58. Mr Pollack said that Australia Post is required by s 26 of the Postal Act to “as far as practicable, perform its functions in a manner consistent with sound commercial practice”. He said consistently with that requirement, the letter service is run at a profit, but there is some cross-subsidisation from cheaper to more expensive standard letter deliveries.
59. He explained that the term “reserved services” covers the letters that Australia Post has an exclusive right to carry. All letter delivery is covered by the term “letter service”. The carriage of reserved letters is in his words “a subset” of the letter service.
60. Mr Pollack explained that a community service obligation cost arises when the revenue received for an activity is less than the cost of the activity. He said a purely commercial enterprise might not choose to run that cost, but Australia Post is obliged to do so. He gave the rural post service, which is required under s 27(4) of the Postal Act, as an example of such an activity. Mr Pollack did, however, point out that the advantage of having the Australia Post brand everywhere may balance the issue of cost.
61. Mr Pollack said that Australia Post recognises substitution of services as a form of competition. He gave examples of alternatives to direct mail services, such as email and some forms of advertising.
62. Mr Pollack explained that the reservation of services gives Australia Post some protection against competitors who might come in and compete on the more profitable routes, leaving Australia Post to carry the cost of the obligation in respect of the less profitable areas of reserved services, such as rural mail and rural post offices.
SUBMISSIONS
63. Mr Hanks submitted that, although the services reserved to Australia Post by s 29 of the Act appeared to grant a monopoly to Australia Post, that was of “appearance rather than substance”, where there are other means of delivering the same services.
64. Mr Hanks referred to s 26 of the Postal Act. He submitted that the standard letter service and the wider letter service, which are both community service obligations, are also required, under s 26, to be carried out as far as practicable in accordance with sound commercial practice. He claimed that the s 26 requirement included a requirement that they be carried out, as far as practicable, in competition with private enterprise.
65. In respect of documents meeting the description in paragraph (1) of the letter of 27 August 2003, being documents summarising alleged crimes where the alleged crime related to the suspected theft of letters, the delivery of which is a reserved service, Mr Hanks submitted that documents brought into existence by the Corporate Security Group should be characterised as having been brought into existence for the purpose of carrying on commercial business in competition with private enterprise, even where the crime being investigated relates to a reserved service.
66. Mr Hanks explained that it was his submission that the protection of the Australia Post brand depends on maintaining the confidence of the community. That requires that the activities of Australia Post are not compromised by criminal activity. He submitted that the activities of the Corporate Security Group are designed to protect Australia Post’s competitive position.
67. Mr Pizer submitted that, even if I did not uphold his argument that s 25 does not empower Australia Post to refuse to grant access to the documents covered by the request in paragraph (1) of the letter of 27 August 2003, I should find that Australia Post has failed to discharge the onus of showing that all the documents covered by that request (or in his submission part of a request) are exempt documents under s 7(2) of the Act.
68. Mr Pizer submitted that it is not correct to say that Australia Post carries on all its activities on a commercial basis in competition with private sector organisations. He addressed the meaning of the term “commercial activities.” He submitted that it might mean activities carried on primarily or chiefly for profit. He said the Postal Act provides that, when Australia Post supplies the letter service required by s 27 of the Act, it is not done primarily or chiefly for profit, but primarily because of its social importance and because Australia Post has a community service obligation to provide that service.
69. Mr Pizer said that the Tribunal should interpret the term "documents in respect of its commercial activities" narrowly, rather than in the wide way suggested by Mr Hanks. He explained that, if the Tribunal found that all activities, even in respect of the reserved letter service, were commercial activities of Australia Post, because of the desire to maintain the reputation of the Australia Post brand, then Australia Post would be excluded completely from the operation of the Act.
70. It was Mr Pizer's submission that the words "commercial activities" should be interpreted in such a way as to give some meaning and effect to the description of Australia Post in Schedule 2 Part II of the Act. He pointed to the fact that Australia Post is not an "Exempt agency" under Schedule 2 Part I, but is an agency "exempt in respect of particular documents" under Schedule 2 Part II. He said it would be circumventing the intention of Parliament to find that Australia Post was an exempt agency in respect of all its documents, because of Australia Post's commercial obligation under s 26 of the Postal Act.
71. Counsel referred me to a number of authorities on the issue of the interpretation of the words used in s 7(4) of the Act. The authorities referred to included Commonwealth of Australia v Lyon (1979) 24 ALR 300, as to the term "in the course of", and Ellison v Vukocevic (1986) 7 NSWLR 104 and Wallis v Downard Pickford (North Queensland) Pty Ltd (1993‑1994) 179 CLR 388, which consider the meaning of "for the purpose of” and “for the purpose of which", respectively.
72. I have decided that the factual situations in those decisions are so different that they are not of real assistance in this matter. The words "in relation to documents in respect of its commercial activities" in Schedule 2 Part II are easily enough understood using the definition of "commercial activities" in s 7(3) of the Act and the ordinary meaning of the words in s 7(4) of the Act.
73. It is necessary to consider the evidence as to the nature of the reserved letter services. Mr Pollack explained they are reserved to Australia Post in the sense that Australia Post has an exclusive right to carry those items and provide those services, in order to protect Australia Post against competitors who may come in and compete on the more profitable routes. That would leave Australia Post to carry the cost of the community service obligations in respect of the less profitable areas of the reserved services, such as rural mail and rural post offices.
74. On that evidence the reserved services are not activities "carried on by [Australia Post]…in competition with" private enterprise. They are activities in respect of which Australia Post is protected against competitors. That analysis is supported by reference to s 29 and s 30 of the Postal Act which set out the reserved services (s 29) and the exceptions to reserved services (s 30). During the hearing, I drew Counsels' attention to s 30(1)(e) of the Postal Act, which excludes from the reserved letter service:
(e)the carriage of a letter within Australia for a charge or fee that is at least 4 times the then rate of postage for the carriage within Australia of a standard postal article by ordinary post;
75. Clearly, s 30(1)(e) protects Australia Post from competition with private enterprise in respect of the carriage of a standard postal article by ordinary post within Australia. As Mr Hanks conceded, it gives Australia Post a monopoly. He submitted it was not a true monopoly, as there can be other forms of delivery for standard letters such as DX, facsimile and email. I find that those are alternative services to the service as to which Australia Post does have a monopoly. But that does not alter the fact that, in respect of the services as to which it has a monopoly, Australia Post cannot be said to be carrying on activities in competition with private enterprise. The alternative services, such as DX, facsimile and email, do not mean that Australia Post does not have protection from competition in respect of the reserved letter service within Australia.
76. I find that the reserved letter service is not a "commercial activity" as defined in s 7(3)(a), as it is not an activity carried on by Australia Post "on a commercial basis in competition with persons other than governments or authorities of governments".
77. The next question is whether the reserved letter service is "a commercial activity" under the definition in s 7(3)(b) of the Act. That covers an activity "that may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis in competition with private enterprise". Mr Pollack, in paragraph 9 of his affidavit, referred to competition faced by Australia Post's reserved services, because of different mediums that can carry written communications. There was no evidence that the reserved letter service may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis in competition with private enterprise.
78. I find the reserved letter service is not a "commercial activity" under either paragraph (a) or paragraph (b) of the definition in s 7(3) of the Act. I agree with Mr Pizer's submission that, if the reserved letter service were characterised as a "commercial activity" of Australia Post, it would be hard to imagine what activities of Australia Post would not be "commercial activities". If Australia Post were completely excluded from the Act, one would wonder why it was an Agency exempt under Schedule 2 Part II, rather than an "Exempt agency" under Schedule 2 Part I of the Act.
79. It was not in dispute that the documents to which access was requested in paragraph 1 of Mr Papp's letter of 27 August 2003, being documents of the Corporate Security Group, summarising alleged crimes, may include documents summarising alleged crimes investigated by the Group relating to the reserved letter services. Such crimes could be, for example, the theft of letters or of items in letters. In respect of those documents Mr Hanks contended that I should find that the investigations by the Corporate Security Group were commercial activities, on the basis that they were intended to protect the Australia Post brand.
80. There was evidence that in accordance with the Corporate Security Group, Charter, the Group must investigate all postal offences and refer the results of investigations to the DPP or other relevant authorities such as Federal or State police. The Corporate Security Group has a 100% referral policy on all investigations where prima facie evidence exists. The evidence was that such investigations could relate to reserved services, or to other services, which are not reserved to Australia Post.
81. I do not accept that Corporate Security Group documents relating to investigations of offences arising in respect of the reserved letter service are documents in respect of the commercial activities of Australia Post. I find they are documents in respect of Australia Post's reserved services under s 29 of the Act and its community service obligations under s 27 of the Act. Australia Post's commercial activities are not the sole reason why Australia Post monitors its performance and investigates areas where crimes may have been committed. Australia Post also has obligations with which it must comply in respect of its community services, such as the reserved letter service. Under s 27(4) of the Act, the performance standards for the letter service must reasonably meet the social, industrial and commercial needs of the Australian community. If there is a problem with alleged crimes, such as thefts or losses of reserved service letters, that problem must be investigated to ensure the maintenance of satisfactory performance of the reserved letter service, so that Australia Post meets the community service obligations in respect of the reserved letter service.
82. I find that documents brought into existence in the course of, or for the purpose of, Australia Post's reserved letter service are not documents brought into existence in the course of, or for the purposes of, the carrying on of commercial activities".
CONCLUSION
83. I find that the documents covered by the request in paragraph (1) of the letter of 27 August 2003 may include documents which are not exempt documents under paragraph (b) of the definition of "exempt documents" in the Act, because they are not documents in respect of the "commercial activities" of Australia Post as defined in s 7(3) and (4) of the Act. Thus, I find that it is not apparent from the nature of the documents, as described in request (1), that all of the documents to which the request relates are exempt documents. I find that s 24(5) does not apply so as to allow Australia Post to refuse to grant access to the documents covered by the request in paragraph (1) of the letter of 27 August 2003, without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document.
84. The decision under review will be set aside. The matter will be remitted to Australia Post for reconsideration in accordance with the directions:
(i)that access be given in accordance with s 18 of the Act, to documents requested by Mr Papps in paragraph (1) of his letter of 27 August 2003;
(ii)that s 24(5) of the Act does not apply to the request, as it is not apparent from the nature of the documents, as described in the request, that all of the documents to which the request relates are exempt documents under s 7 of the Act.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer
Signed: Josephine McKay
AssociateDate/s of Hearing 22 April 2004
Date of Decision 10 August 2004
Counsel for the Applicant Mr Pizer
Solicitors for the Applicant Corrs Chambers Westgarth
Counsel for the Respondent Mr Hanks QC,
Representative of Respondent Mr Batskos, FOI solutions
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