FAQ re FOI Request to ABA

Last Updated: 20 June 2002

In July 2001 the FOI review case, Electronic Frontiers Australia Incorporated and Australian Broadcasting Authority (No Q2000/979), was heard by Administrative Appeals Tribunal.

On 12 June 2002, the AAT handed down its decision.

This document provides answers to frequently asked questions about the case.

(Note: This page was placed online in January 2002, and has not been updated with information about the AAT decision on 12 June 2002. For information in that regard, see section "AAT Decision" on EFA's main page about the FOI application and the case.)


Why did EFA lodge an FOI application?

In introducing the Commonwealth Internet censorship regime, effective 1 January 2000, the Government stated their intent was to implement a system whereby on-line content regulation was equivalent to off-line regulation, that is, what is illegal off-line should be illegal online.

For many years the censorship/classification scheme for off-line media has operated with full public disclosure of details about classifications decisions. As Federal Attorney General, Darryl Williams, remarked during a speech in May 2001:

“As soon as a classification decision is made it is in the public domain and it is immediately open to question and scrutiny by the community. ... we need to have an independent and transparent decision making process.”

The Office of Film and Literature Classification (“OFLC”) makes information about its classification decisions in relation to movies, videos, publications and computer games available in its free, publicly accessible classification database on the Internet. It is reasonable to expect that in an equivalent regulation regime for online content, information about classification of online content would also be made available to the public.

However, two months after the Internet censorship regime commenced on 1 January 2000, EFA observed that neither the Australian Broadcasting Authority (“ABA”) nor the OFLC was making information about online content classification decisions available to the public (nor have they commenced doing so in the subsequent 2 years).

In refusing to make details about classification decisions publicly available the ABA have placed a layer of censorship on censorship itself. The potential for layers on layers of censorship was raised during the Senate debate on the Internet censorship Bill by Senator Bob Brown on 25 May 1999. In response to Senator Brown’s remarks, the Communications Minister Senator Richard Alston said:

“[A] legitimate concern is to ensure that a description of the material does not disappear from public view. There could not be any offence taken by being able to access a site that described the material or gave details of any take-down orders or the whole circumstances in which the material had found its way onto the classified lists. So there is no intention to somehow ensure that people are unaware. I am not quite sure why they would have such an interest in being aware of what had been banned. Obviously the stakeholders would have a direct interest and immediate knowledge from the outset. There probably is some legitimate interest in the general community in knowing the description...”

Senator Brown asked Senator Alston to repeat his assurance and Senator Alston said:

“What I said was that I think it is legitimate to have a description of the material so that you can identify it...”.

On 12 September 2000, EFA wrote to the Director of the OFLC inquiring why classification decisions made by the OFLC for the ABA about online content were not available in the OFLC’s classification database. The Director, Mr Des Clark, replied in a letter dated 27 September 2000 stating:

“...OFLC is currently negotiating a series of protocols with the ABA. When these are in place, I am sure that EFA will be satisfied with the information available online.
In the meantime, OFLC refers questions about the classification of online content to the ABA as I did at the Censorship forum at the Dendy Cinema where I also confirmed the commitment of the OFLC to transparency in its decision making and operating procedures...”

These “protocols” were still not in place nine months later at the time of the AAT FOI hearing, nor to EFA’s knowledge had they been put in place by January 2002.

EFA considers a secret and unaccountable censorship regime is inappropriate in a democracy. EFA believes the ABA’s classification decisions should be open to public scrutiny and the ABA’s decision making and operating procedures should also be transparent, in the same manner as those of the OFLC. EFA is unaware of any indication that the Minister to whom the ABA reports, or the Government, or the Parliament, intended that the ABA be the only classification agency to operate in secrecy.

Since 1982, Australian citizens have had a legislated right to access information about the operations of government agencies. The Commonwealth Freedom of Information Act 1982 (“FOI Act”) states:

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
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities...”

In view of the ABA’s refusal to make details of classification decisions in relation to Internet content available to members of the public, in late February 2000 EFA commenced seeking to obtain such information under FOI law.

Did EFA ask for a list of "blocked sites" and is access to any web pages "blocked" in Australia?

No and no.

No sites/pages are blocked by ISPs under Australia's censorship laws. If Australian ISPs block access to any sites, they do so of their own volition, they are not required to do so under Australian laws. They are however required to take down content on their web servers, and delete posts on their Usenet newsgroup server, on receipt of a take-down notice from the ABA (government Internet censorship regulator).

EFA asked for page titles/descriptions, and/or URLs, of content that had been complained about under the Commonwealth Internet censorship law (Broadcasting Services Amendment (Online Services) Act 1999) and either:

  • found not to be 'prohibited', or
  • found to be hosted on Australian sites and 'prohibited' under the censorship law and taken down by the ISP or content host on order of the Australian government regulator (ABA). (The censorship law includes fines of AU$5500 for individuals or AU$27500 for corporations, for each day during which a failure to take down prohibited content continues), or
  • found to be hosted on overseas sites and 'prohibited' or 'potentially prohibited' under Australian censorship law and so notified, as required by law, by the government regulator (ABA) to commercial censorware providers for inclusion on their blacklist.

Did the ABA deny access to all information requested EFA?

Initially the ABA required payment of $4,600 most of which comprised ABA decision making time. EFA narrowed the scope of the original FOI request to exclude various types of documents, to avoid the delay of a potentially lengthy fee appeals process. The ABA then reduced their fees to $892 and in August 2000 the ABA released approximately 31 documents in full and 144 documents with sections blacked out.

In October 2000, EFA lodged an application for review of the ABA’s FOI decision by the Administrative Appeals Tribunal (“AAT”). The ABA subsequently released information in several documents that had previously been blacked out. However, this was a very small proportion of the information in dispute.

What type of information did the ABA deny access to?

By the time of the AAT hearing in July 2001, there were approx. 129 documents in dispute. These included copies of complaint forms, OFLC Classification Certificates, ABA take-down notices issued to ISPs/ICHs and email messages to filter providers. While these documents were partially released to EFA, they contain blacked out portions apparently covering URLs and/or page titles/descriptions of online content.

Not all of these documents contain information about prohibited or potentially prohibited content. They definitely include, for example, information about:

  • content classified MA15+ (i.e. not prohibited online under the censorship laws) by the OFLC
  • content that the ABA has determined is not prohibited or potentially prohibited but which “would enable an end-user to identify, locate and view content which was the subject of an investigation [by the ABA] and found to be potential or prohibited content”. (EFA assumes this means such documents contain information identifying a non-prohibited page which contains a reference to other content that is prohibited, or contains a link to prohibited content or is hosted on the same domain as prohibited content)
  • content hosted in Australia that was ordered taken down by the ABA after it was classified:
    • R18+ (suitable for adults only, does not include sexually explicit material, does include detailed information on "adult themes" that may be harmful or disturbing to persons under 18), or
    • X (non violent sexually explicit material involving consenting adults), or
    • RC (refused classification).
  • content hosted in Australia that “the ABA is satisfied would be classified X” but which the ABA did not have classified or order taken down because they considered the complaint about that content was invalid.

Was EFA seeking information identifying content containing child pornography?

No. While many of the ABA’s arguments against full release of the 129 documents appear to imply that the documents refer to child pornography, EFA believes that some 117 of the documents do not contain information about such material. If the ABA had only claimed exemptions for documents that credibly seemed likely to refer to such material, EFA would not have appealed the ABA’s decision.

EFA expects that the ABA would refer content involving child pornography to police. According to a speech by Mr Gareth Grainger (then Deputy Chair of the ABA) on 10 March 2000, at that time only “four (4) of the complaints investigated have involved material that has...been referred to the police for investigation”. However, information the ABA and AAT exempted from disclosure concerns many more than 4 complaints received by the ABA before the end of February 2000.

EFA informed the AAT during the case hearing on 18 July 2001 that EFA was not seeking identifying details about content involving child pornography. See relevant extract from the hearing transcript, in EFA's media release of 13 June 2002: Veil of Secrecy Remains Over Internet Censorship.

When did the AAT hear the case and who represented the parties?

The case was heard by the AAT on 18 and 19 July 2001 in Brisbane before Tribunal Members Deputy President S A Forgie and Mr I R Way.

The ABA was represented by Madeleine Campbell, Senior Government Solicitor - Litigation/Government, Australian Government Solicitor's Office. Ms Campbell’s instructing solicitor was Maria Vassiliadis, ABA Senior Lawyer and FOI Coordinator. The ABA called two witnesses: Andree Wright, ABA Director of Policy and Content Regulation and Richard Fraser, ABA Manager Online Services Content Regulation, who were present during the two days of the hearing (except while the other witness was being questioned and cross-examined).

EFA was represented by Irene Graham, EFA Executive Director, who was assisted by Greg Taylor, EFA Vice-Chair on the first day of the hearing, and Dale Clapperton, then EFA Secretary/Treasurer (and EFA Treasurer from Nov 2001), on both days.

What is the AAT’s role?

The FOI Act (C’wlth) gives citizens a legal right to access to information held by Commonwealth Government agencies except when one or more of the exemptions set out in the FOI Act is applicable. The ABA contended that various exemptions enabled them to deny access to information sought by EFA. EFA considered the exemptions claimed were not applicable.

When an FOI applicant disagrees with an agency’s decision, they are entitled to ask the AAT to review the agency’s decision, hence EFA lodged an application for review of the ABA’s decision by the AAT.

In reviewing an agency’s FOI decision, the AAT is required, basically, to “stand in the shoes” of the agency and make a fresh decision. In hearing a case, the AAT hears arguments and evidence from the applicant (EFA) and the respondent (ABA). In making a decision, the AAT may decide that some or all of the matters raised are irrelevant, and/or that other matters or exemptions not raised by either party are relevant to the AAT’s decision.

When will the AAT issue its decision?

[Update June 2002: The AAT decision was handed down on 12 June 2002.]

EFA was informally advised by an AAT staff member shortly after the hearing that it was unlikely a decision would be handed down until at least 3 months, and quite possibly longer, after the hearing in July 2001. The issue date of AAT decisions is dependent on the workload of the Tribunal members who heard the case, such as when they have time available to further consider the matters at issue, make a decision and prepare a written report on the grounds/reasons for their decision. The complexity of a case, such as involving matters that have not previously been considered by the AAT and/or the Courts, is likely to affect the speed of issue a decision.

What is the case about?

The matters at issue appear to involve more than the provisions of the FOI legislation, contrary to EFA’s expectations when lodging an FOI request in February 2000.

The ABA's grounds for exemptions claimed raised matters that fundamentally concern:

  • interpretation and construction of Schedule 5 of the Broadcasting Services Act (“BSA”) and the ABA's powers thereunder; and
  • the Commonwealth’s Constitutional powers and the extent to which, if any, a Commonwealth Government agency is empowered to attempt to enforce their interpretation of the provisions of a particular State or Territory’s laws (absent legislated authority to do so) and, even if so, whether the laws of one State/Territory can legitimately be used to deny citizens in other States/Territories access to information under Commonwealth FOI law.

In other words, whether the ABA is entitled to rely on the exemptions claimed appears to depend, in part, on whether the ABA has the statutory functions and powers they appear to consider they have. It appears the AAT will either need to decide that these matters are irrelevant to the exemptions claimed by the ABA, or decide whether the ABA’s view as to its statutory functions and powers is correct.

EFA is doubtful that a number of the matters raised by the ABA are relevant to the exemptions claimed. In any case, EFA considers the ABA has adopted a construction of the Broadcasting Services Act 1992 that would extend the ABA’s statutory functions and powers beyond the particular powers conferred upon it and the ABA’s administrative powers should be read in the context of FOI exemptions as limited to the particular functions conferred on it. Moreover, EFA considers the ABA has, in effect, asked the AAT to interpret the powers of the Commonwealth and its agencies in a manner that goes far beyond those set out in the Australian Constitution. EFA does not consider that the BSA goes beyond the Commonwealth's Constitutional powers, but considers the ABA's interpretation of that legislation does, and furthermore, goes beyond the intent of the Parliament.

What exemptions from disclosure did the ABA claim?

Prior to the hearing, documentation the ABA had provided to EFA and lodged in the AAT stated that the ABA was claiming exemptions contained in the following sections of the FOI Act:

  • Section 40(1)(d) - “Documents concerning certain operations of agencies”
  • Section 37(1)(a) - “Documents affecting enforcement of law and protection of public safety”
  • Section 41 - “Documents affecting personal privacy”

However, two days before the hearing, the ABA advised EFA that the ABA would not, after all, be claiming the Section 41 exemption, and the relevant document would be released in full to EFA. This document disclosed the name of an ABA online content regulation officer who had lodged one complaint. (EFA did not seek identifying information about complainants “except in the case of investigations initiated by the ABA, another government agency, a government Minister, or a Member of Parliament”.) EFA had considered, on the basis of existing FOI case law, that there was minimal prospect of the AAT upholding this exemption claim. Hence, it was not particularly surprising to EFA that the ABA decided to withdraw this claim prior to the hearing and release the ABA officer's name.

Also, on the first morning of the AAT hearing, the ABA informed the AAT and EFA that they had decided the Section 37(1)(a) exemption was not, after all, applicable and instead they were claiming a different exemption, that in Section 37(2)(b).

On what grounds did the ABA claim the exemptions?

The Section 37(1)(a) exemption that the ABA had claimed was applicable until the first morning of AAT hearing, states:

37 Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;

The ABA’s counsel advised the AAT that exemption was not, after all, being claimed because it “would not be an appropriate exemption because there is no ongoing investigation of these particular sites”. (The complaints about the sites were lodged in January and February 2000. It is unknown whether they were still under investigation 5 months later when the ABA issued its FOI decision claiming this exemption, nor why the ABA failed to advise EFA until the morning of the hearing 12 months later that this exemption was no longer being claimed).

Instead, the ABA advised they were claiming the Section 37(2)(b) exemption which states:

37 Documents affecting enforcement of law and protection of public safety
(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
    (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;

In the above regard, the ABA claimed that a URL (e.g. http://www.somewhere.com.au/...) “is a procedure used by the ABA when investigating...a site complained about” and so the disclosure of a URL would “prejudice the effectiveness of” a procedure.

AAT Deputy President Forgie directed a number of questions and comments to the ABA’s counsel on the issue of whether a URL is a “procedure” or is merely data similar to a telephone number that is the subject of a telecommunications interception warrant. It appeared to EFA representatives in attendance that the Deputy President fully understood what a URL is. EFA considers this exemption completely irrelevant and was surprised to hear the online content regulator’s counsel claiming a URL is a “procedure”.

The other exemption claimed by the ABA was Section 40(1)(d).

Section 40(1)(d) states:

40 Documents concerning certain operations of agencies
(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
    (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

[emphasis added]

In EFA’s view, the primary ground put forward by the ABA in support of the relevance of the above exemption is the ABA’s apparent belief that if page titles/descriptions or URLs of content that has been or would be classified R, X or RC were disclosed to an FOI applicant, this would result in a reduction in the number of the complaints received by the ABA. According to the ABA, this would have “a substantial adverse effect” on the proper and efficient conduct of the operations of the ABA.

EFA does not consider disclosure of the requested information (which specifically excluded identifying information about complainants) could “reasonably be expected to” result in a reduction in numbers of complaints, and even if it did, this would have no effect on the “proper and efficient conduct of the operations of” the ABA, let alone have a “substantial adverse effect”. Furthermore, if the provisions of Section 40(1)(d) can be considered relevant, EFA considers that these are inapplicable in view of Section 40(2), that is, disclosure would “on balance, be in the public interest”.

The ABA stated that release of the information sought by EFA “would enable an end-user to identify, locate and view content which was the subject of an investigation [by the ABA] and found to be potential or prohibited content”. The relevance of this to the exemptions claimed by the ABA is unclear, since even if an end-user accessed such content, it would not affect the “proper and efficient conduct of the operations” of the ABA, nor would it disclose or prejudice the ABA’s investigation “procedures”.

The ABA also referred at some length to various State/Territory Classification Acts although the ABA is not empowered or required to enforce such laws. The ABA appeared to suggest, for example, that it is a criminal offence under A.C.T. law to possess online content that has been classified RC. If the A.C.T. law quoted by the ABA’s counsel is applicable to online content, then the very same clause quoted makes it a criminal offence to possess 99.9999% of content on the Internet, that is, content that has not been classified by the OFLC. (Note also that the A.C.T. Act refers to possession of films, publications and computer games with intent to sell, exhibit, etc., not simple possession).

Irrespective of the relevance, if any, of State/Territory laws to release of information under Commonwealth FOI law, much of the information the ABA has refused to release would not identify information that is illegal to possess under any State/Territory’s law.

Various other matters were raised by the ABA and EFA during the two day hearing. However, summarising all of these is beyond the scope of this document.

What is “in the public interest”?

In relation to the ABA’s exemption claim under Section 40 of the FOI Act, Section 40(2) states:

“This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.”
During the AAT hearing, the ABA’s counsel stated that:
“we are saying the scheme for all its faults, for all its weaknesses, for all its warts, is still a viable scheme. It is one which appears to have the confidence of the industry and all the other stakeholders and therefore anything that substantially affects the way in which this scheme operates, the whole scheme, is not in the public interest.”

EFA does not believe release of the requested information would substantially, if at all, affect the way in which the scheme operates. However, even if it did, EFA considers disclosure would, on balance, be in the public interest for reasons outlined in the relevant section of EFA’s Statement of Facts and Contentions lodged in the AAT in January 2001.

Regardless of the ABA’s opinion about confidence in the scheme (and whether or not such an impression is correct), the ABA is subject to the FOI Act for the same reasons as other equally diligent agencies. The ABA does not have exemption from the provisions of the FOI Act under statute, and did not identify any unique reason to discharge its statutory functions in secrecy.

As EFA stated during the AAT hearing:

“on balance the public interest would be best served by disclosure of the information sought. Counsel for the respondent suggests that the scheme, for all its faults, for all its weaknesses, for all its warts, must still operate in secrecy. We submit that a scheme that has faults, that has weaknesses, that has warts, should operate with increased transparency, openness and oversight, not less.”

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