FOI Request on ABA

Last Updated: 22 December 2002

The purpose of this FOI application, lodged in February 2000, was to obtain information about Internet content that had been the subject of a complaint to the Australian Broadcasting Authority ("ABA") under the Broadcasting Services Act amendments (Internet censorship laws) which came into force on 1 January 2000.

The ABA released some information requested and refused to release other information (including about content that was not determined by the ABA to be prohibited online). In October 2000, EFA lodged an appeal concerning the ABA's decision to the Administrative Appeals Tribunal ("AAT"). The AAT's decision was handed down on 12 June 2002. Two weeks after the AAT decision, the Federal Government introduced proposed amendments to the FOI Act into Federal Parliament which are designed to exempt even more information from disclosure under FOI than the AAT ruled is presently exempt, thereby further preventing public scrutiny of the administration and operation of the Internet censorship regime.


EFA's FOI Application to the ABA

  • 22 February 2000
    Original Application

  • 14 March 2000
    Faxed ABA response Page 1 and Page 2 (GIF images). The response indicates that the application would cost $4600 to process.

  • 28 March 2000
    EFA response contesting costs

  • 19 April 2000
    Faxed ABA response denying our request to waive the assessed fee.
    Page 1, Page 2 and Page 3 (GIF format)

  • 11 May 2000
    EFA response narrowing the scope of the original FOI application, to obtain critical information without waiting for a lengthy appeals process.

  • 31 May 2000
    ABA response advising revised cost assessment of $892.
    Page 1 and Page 2 (GIF format)

  • 6 June 2000
    EFA response agreeing to pay costs of $892.

  • 20 June 2000
    ABA response (GIF format) advising:
    "...the ABA has commenced processing the application. Processing involves consultation with third parties and consequently the time limit for processing the application is extended by 30 days as per s15(6)(a) of the Freedom of Information Act 1982."

    The ABA had not previously mentioned any need for third party consultation. The ABA has advised verbally that the third parties are the persons who are the subject of the take-down notices and it is considered that releasing the take-down notices could have an adverse effect on those persons.

The ABA's Access Decision

  • 21 July 2000
    The ABA’s access decision was received by EFA by fax. This letter advised the ABA held 175 documents, 31 of which would be released in full, and 144 would be released with deletions, after receipt of the balance ($669) of the processing fee ($892).
    ABA letter including detailed reasons for denial of access to information (GIF images):
    Page 1, Page 2, Page 3, Page 4, Page 5, Page 6,
    Page 7, Page 8, Page 9, Page 10, Page 11, Page 12
    Schedule of Documents

    (Note: Copies of documents were not received until 25 August 2000.)

  • 24 July 2000
    EFA mailed the balance of the processing fee to the ABA.

  • 9 August 2000
    EFA had not still not received any documents. Under FOI legislation, applicants have 30 days from receipt of a decision to lodge an application for Internal Review of a decision, that is, a review application would have to be lodged by 20 August (a Sunday). A telephone inquiry to the ABA elicited advice that the ABA did not expect to mail documents released until Wednesday16 August, at the earliest.

    EFA concluded that documents would not be received until after the statutory deadline for lodging an application for review, and therefore sent an application for Internal Review to the ABA on 9 August 2000 together with the application fee of $40.

Documents Released / Denied by the ABA

  • 25 August 2000
    EFA received the ABA’s letter dated 17 August, enclosing documents released.

    For details about information released, see EFA's Report

The ABA's Internal Review Decision

  • 6 September 2000
    The ABA’s internal review decision was received by EFA by fax, affirming the ABA’s original decision in full, as expected. (GIF images):
    Page 1, Page 2, Page 3, Page 4, Page 5

  • 6 September 2000
    EFA intends to pursue release of a number of denied documents and anticipates lodging an appeal in the Administrative Appeals Tribunal.

Application for Review by the AAT

  • 17 October 2000
    EFA lodged an application for review of the ABA's decision in the Administrative Appeals Tribunal.

  • December 2000 to February 2001
    Two preliminary (tele)conferences were held, in accord with normal AAT procedures and processes. One of the purposes of AAT preliminary conferences is to establish whether the matter at issue may be resolved by mediation rather than a Tribunal hearing and decision. The ABA and EFA were in agreement that the matter was not one that could be so resolved.

EFA’s Statement of Facts and Contentions

  • January 2001
    EFA’s Statement of Facts and Contentions was lodged in the AAT.

  • 28 March 2001
    EFA received advice from the AAT that the matter has been listed for hearing on 5 and 6 July 2001. [These dates were later changed by the AAT to 18 and 19 July 2001].

AAT Hearing

  • 18 and 19 July 2001
    The case was heard by the AAT before Deputy President Ms S A Forgie and Member Mr I R Way on 18 and 19 July 2001. The hearing was held from approx 10.15 am to 3.15 pm each day, and involved submissions by the respondant (ABA) and the applicant (EFA), evidence from ABA witnesses (Ms Andree Wright and Mr Richard Fraser) and cross examination, and questions from the Tribunal.

    At the end of the hearing, Deputy President Forgie advised the case would require careful consideration as a result of the matters raised by both parties and the Tribunal thus reserved its decision. (This was in accord with EFA's expectations prior to the commencement of the hearing).

    An assistant to the Tribunal informally advised EFA that a decision was unlikely in less than three months and could be longer. EFA understands this is the normal AAT time frame for such decisions and is not related to the particular case.

AAT Decision

  • 12 June 2002
    The decision of the Administrative Appeals Tribunal was handed down by Deputy President S.A. Forgie.

    The AAT ruled that the documents in dispute were exempt from disclosure "in so far as they reveal URLs and IPs". The ruling thus upheld the ABA's decision to black out URLs on many documents prior to having released those documents to EFA.

    In its decision, the AAT observed that the "veil of non-disclosure" could bring into question the integrity of the Internet censorship scheme and that "secrecy may of itself undermine the public's confidence" in the scheme. The AAT said that they had "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 AAT also made a number of general observations that they said "raise important issues relating to censorship, openness of government and even to the confidence that the public has in agencies of government to implement and administer its schemes with integrity... They also raise questions as to the effectiveness of the scheme to carry out the objects identified in [the Broadcasting Services] Act".

    In concluding remarks, the AAT said "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".

    For further information see:

[Note: Two weeks after the AAT decision, the Federal Government introduced proposed amendments to the FOI Act into Federal Parliament which are designed to exempt even more information from disclosure under FOI than the AAT ruled is presently exempt, thereby further preventing public scrutiny of the administration and operation of the Internet censorship regime.]


Answers to Frequently Asked Questions about EFA's FOI application and the AAT hearing.

Media Articles

Censor secrecy okay: tribunal, Karen Dearne, The AustralianIT, 18 June 2002
   "Internet censors will continue their work in secret, following an Administrative Appeals Tribunal decision..."

Oz Censor Law Still Confuses, Stewart Taggart, Wired, 2 Feb 2002
   "Two years after online censorship laws took effect here, no one -– apart from the censors themselves -– has much of an idea what's being taken offline."

Alston's X files: the secret truth about Internet censorship, Lauren Martin, Sydney Morning Herald, 21 Jan 2002
   "Your access to the Web is being censored by the Government - but it refuses to reveal exactly what it is we are not allowed to see."