AAT decision in FOI case: EFA and ABA

Last Updated: 17 July 2002


The decision of the Administrative Appeals Tribunal ("AAT") in the Freedom of Information ("FOI") case, Electronic Frontiers Australia Incorporated and Australian Broadcasting Authority (Q2000/979), was handed down by Deputy President S.A. Forgie on 12 June 2002.

EFA had appealed the decision of the ABA to black out titles (e.g. names of web pages) and URLs of Internet content that had been the subject of a complaint to the ABA. Denied information included information about content classified MA15+, R18, X and RC.

As the ABA had consistently (incorrectly) implied EFA wanted identifying information about content involving child sexual abuse, EFA informed the AAT, during the hearing and in the presence of the ABA, that:

"We consider that the ABA should be required to point out clearly which documents, that they are seeking to deny access to, actually involve child pornography. ... Those documents should be specifically exempted and then we can deal with the matter of the information that EFA is really seeking access to which is not information that is illegal to possess. ..."

The AAT ruled that the documents requested by EFA were exempt from disclosure "in so far as they reveal URLs and IPs" on the ground that "revelation of the URLs and IPs to the public ... would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of [the ABA's] operations" and that the public interest in disclosure (s.40(2)) was outweighed by the adverse effect on the ABA's operations they considered would result from disclosure.

In essence, the AAT concluded that if the veil of secrecy over the ABA's censorship decisions was removed, the ABA would receive substantially less complaints about Internet content from the public and overseas hotlines and therefore the ABA's ability to undertake its functions would be "substantially hampered". In that regard, the AAT said:

"90. On the basis of the evidence of Ms Wright and Mr James (sic) [Mr Richard James Fraser], we are satisfied that it is reasonable to expect that, should the IPs and URLs of Internet content that is potentially prohibited content or prohibited content be revealed to the public, the number of complaints will be substantially reduced. That would follow from the perception, rightly or wrongly, that the list of IPs and URLs would encourage certain people to seek access to the Internet content complained about. We are satisfied that there is a reasonable likelihood that, once known, it is reasonably likely that such access could be gained even if a take-down notice has been issued to the Internet content host as it is reasonably likely that the Internet content could be moved to an overseas site.
...
95. ... Among [the objects of the BSA] is an important object of protecting children from exposure to Internet content that is regarded as unsuitable for them. It appears on its face that it may be an imperfect scheme but perhaps that is to be expected given the practical difficulties in regulating a medium that is more nebulous than film or print and in the context of very difficult social and technological issues. For all that, it is the scheme that Parliament has chosen and it is the only statute based scheme in existence at the moment. To undermine its effectiveness, as we consider is reasonably likely to happen were we to release the requested URLs and IPs, would be not only to take away its foundation but also to take away the effectiveness of steps taken voluntarily by parents to make use of an Approved Filter. That would follow from the ABA's reduced effectiveness in identifying content of which the filter software manufacturers are advised."

The AAT remarked:

"96. We have found the issues in this case to be of some difficulty. We have no reason to think that Electronic Frontiers seeks the information for anything other than the most honourable reasons. ... The difficulty that we have is that a person's right of access is not affected by his or her reasons for seeking it (FOI Act, s. 11(2)(a)). Access granted under the FOI Act must be considered as access to the world at large and the fact that Electronic Frontiers seeks it for a legitimate and indeed worthy purpose does not give it any greater right than a person who may seek it for reasons that are not legitimate and worthy."

The AAT made number of general observations that they considered:

"93 ... raise important issues relating to censorship, openness of government and even to the confidence that the public has in the agencies of government to implement and administer its schemes with integrity for secrecy can ultimately lead to the public's questioning integrity even where there is no need for such questioning. They also raise questions as to the effectiveness of the scheme to carry out the objects identified in s. 3(1)(k), (l) and (m) of the [Broadcasting Services] Act."

Observations made by the AAT included:

"78. The second relates to issues of censorship. Comparisons and contrasts can be drawn between what happens in the classification of film and video and what is said to be the position in relation to Internet content. In relation to the former, it is said, it is possible to know the material that is prohibited from being brought into Australia and so prohibited from being shown in Australia i.e. those films and videos that are colloquially said to be "banned". Although described as classification, this amounts to censorship of what the Australian public may see and of what it may bring into Australia. The public will have means to know what it is not permitted to see. Should a member of the Australian public wish to see the film or video, then he or she knows what it is and may seek it out overseas and view it overseas according to the laws of that overseas country. Those who do are able to form a view as to the manner in which the material that they may not see is assessed by reference to the standards set out in the Guidelines. They form a view as to whether the standards are being applied too rigorously. If they are thought to have been applied too leniently, that no doubt would be a matter already canvassed in Australia in public debate. That debate would have been conducted on the basis that the film and video material had been classified and so was available to be viewed. If the material were not classified and so not permitted to be viewed in Australia, many people would not, when they were outside Australia, want to take advantage of any opportunity (lawful or otherwise) to see film and video banned in Australia. The fact that an opportunity may assist to view film or video outside Australia could, however, be said to ensure the integrity of the classification system by ensuring that it is never open to abuse and used for purposes other than classification according to the Guidelines.

79. In contrast, if the URLs and IPs are exempt under the FOI Act then this effectively means that the Australian public may not know what it may not see. As a consequence, no member of the public has the opportunity to view the material at any time. That lack of opportunity born of a veil of non-disclosure could bring into question whether take-down notices are issued only in relation to Internet content that is prohibited content or potentially prohibited content and so bring into question the integrity of the scheme under the Act. We should say that we have no reason to question, and do not question, the integrity of the ABA. What we do say is that secrecy may of itself undermine the public's confidence. This was a matter addressed during the Second Reading debate (Hansard, Senate, 25 May, 1999, page 5271 (Exhibit A)).

80. Our third general comment relates to the scheme that is established under the Act and brings us to the manner in which we have undertaken the review of the ABA's decision. It seems to us that some of the evidence and particularly that given in cross-examination is directed to the effectiveness of the scheme of regulation of Internet content. Questions were raised, for example, as to how effectively the scheme protects children from gaining access to Internet content when the children's parents may choose, and lawfully choose, not to install an Approved Filter in order to block content hosted on an overseas site. There were questions as to how effectively it does so when the ABA does not consistently advise filtering software manufacturers of Internet content that it has investigated on overseas sites and that would be rated R if located on an Australian site. There were questions as to how effectively it could do so when it could not require the manufacturers of Approved Filters to upgrade their software to take account of take-down notices issued to Internet content hosts and to ISPs. All that it could do was remove them from the Schedule of Approved Filters. There are also questions as to how effectively any scheme may effectively regulate access to Internet content that may be easily charged and readily moved from one ICH to another."

In concluding remarks, the AAT said:

"97. ...we have concluded that disclosure under the FOI Act would not, on balance, be in the public interest within the meaning of s. 40(2). On this occasion, considerations favouring its disclosure are outweighed by the substantial adverse effect that we consider would result from disclosure. We note that the scheme is to be reviewed before 1 January 2003 and would hope that the review is able to incorporate issues of the type that have faced us in this case."

The AAT decision is available online at:
http://www.efa.org.au/FOI/AAT2000-979_dec.pdf (PDF 145 Kb).