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[2007] AATA 1569
Administrative Appeals Tribunal of Australia
2007-07-20
Legislation Amendment J
Original judgment source is linked above.
The applicant, Mr Malcolm Neil Bell, asked the respondent, the Commonwealth Scientific and Research Organisation (CSIRO), for access to a range of documents concerning wireless or LAN networks dated between 1 January 1976 and 27 November 1993. He made his request under the Freedom of Information Act 1982 (FOI Act). The CSIRO identified eight documents as coming within Mr Bell's request but refused it on the basis that it is exempt from the operation of the FOI Act as they are documents in respect of its commercial affairs. That exemption arises as a result of the provisions of s 7 and Part II of Schedule 2 of the legislation. I agree with the CSIRO's decision in relation to all but the third part of document one. That document is a document in respect of the CSIRO's commercial activities but, on the evidence I have, is not a document in relation to a document in respect of its commercial activities as required by the way in which s 7 and Part II of Schedule 2 have been interpreted by the Federal Court in Australian Broadcasting Commission v The University of Technology, Sydney.[1]
2. There remains a question whether CSIRO identified all of the documents coming within Mr Bell's request. Consequently, I have adjourned further consideration.
3. In a letter dated 26 July 2005, Mr Bell sought access to the following documents from the CSIRO:
"Copies of research proposals and/or grant applications, contracts, presentations, scientific documents and papers, publications, memoranda and/or licences dated on or after 1 January 1976 and on or before 27 November 1993 concerning wireless or LAN networks which contain the following key terms:
(Wireless or radio) and (network or hub) and (ofdm or orthological frequency division multiplexing or fdm or frequency division multiplexing or multicarrier or interleave)."[2]
4. The CSIRO identified eight documents as coming within the terms of the request and as being in its possession. It did not include within the eight any documents maintained in its library.
5. The eight documents which are the subject of CSIRO's decision were described by Mr Cooper in an affidavit as:
6. In two affirmations and in the course of his oral evidence at the hearing, Dr Dennis Neil Cooper spoke of some of CSIRO's activities at or about the time the eight documents in dispute came into existence. Dr Cooper holds a PhD in Electrical Engineering from the University of Adelaide and is a fellow of the Academy of Technology Sciences and Engineering and the Institution of Radio and Electrical Engineers. He has been elected as an Honorary Fellow to the Institution of Engineers Australia, is a Senior Member of the Institution of Electrical Engineers (NY) and a member of the Institute of Electrical Engineers (London) as well as a member of the Australian Institute of Company Directors. Between 1988 and 1996, he was the Chief of CSIRO's Division of Radiophysics after holding various positions in the organisation since 1968. After a period as Vice President for Engineering and Information Technology for Ambri Ltd between 2001 and 2005, Dr Cooper returned to CSIRO as its acting Research Director of its Information and Communication Technologies Centre's Networking Technologies Laboratory. Before 2005, Dr Cooper was the Chairman of the Advisory Board for the Centre for Networking Technologies for the Information Economy. He currently holds the position of Team Leader, eResearch
7. As the Chief of CSIRO's Division of Radiophysics, research into Wireless Local Area Networks (WLANs) was under Dr Cooper's control. His appointment to the position coincided with the imposition of a requirement that the Division of Radiophysics earn 35% of its budget from external sources. The remaining 65% was provided from appropriation moneys allocated to CSIRO in the Commonwealth's budget. As a result of the requirement, the Division of Radiophysics had to seek commercial returns on the research services it provided and on any intellectual property it created. It did not charge for all research services that it provided and had certain mechanisms in place when it undertook work for small companies. Where it did charge, it adopted a pricing and royalty policy in line with industry norms.
8. Some of its research work was regarded as "in-house" research work and not charged for. That work was funded out of appropriation moneys in the context of what the CSIRO described as its "Priorities Program". That program provided funding for projects that would have significant applicability in the market place and that were ultimately intended to provide commercial returns, and so a profit, to CSIRO. In light of Dr Cooper's written evidence and answers in cross-examination, I find that there could be no guarantee that there would be a commercial return. Where it was achieved in a licensing situation, it could be achieved immediately or fairly soon. The same could be said when CSIRO provided a consultancy service and so gained an immediate return on its knowledge. Any commercial return would be somewhat later if a company had to be started. It would also be later if internal research work were undertaken because it would be in anticipation of licensing revenue or, perhaps, equity.
9. The Program for Local Area Networks and Services (PLANs) was conceived in or about September 1981 to exploit its expertise in microwave and millimetre wave design, propagation and digital signal processing. The CSIRO thought that there would be a need in the market for a fast roll-out wireless access for consumers and, in view of the growing need to ensure computers' mobility, a wireless system to replace the conventional wired Local Area Networks (LANs). It commissioned a Californian market research company to report on the market potential for a wireless LAN and proceeded to address considerations relating to the market, competitive analysis, technology edge and time-to-market as well as potential competitive price points. The CSIRO wanted to be the market leader in the technology and to gain the market advantage that carried with it. It wanted to earn revenue by licensing the technology it developed.
10. PLANs had two sub-projects. One involved the development of technologies that provided high-speed wireless communications over the "last mile" customer access network. The other was the Wireless Local Area Networks (WLAN) Project. It entailed the development of technologies for high-speed connectivity over tens of metres inside buildings. It is a wire-free technology enabling portable computers, or laptops, to communicate with data networks, including corporate data networks, and the Internet using radio waves instead of cables.
11. WLAN wire-free technology enables devices such as laptop computers to communicate with data networks and the Internet using radio waves instead of cables. The CSIRO's main technical challenge was to overcome the effects of "multipath interference" caused by radio waves bouncing in the indoor environment and so arriving at the receiver at different times. The CSIRO's Division of Radiophysics believed that it could address the problem. It focused on a number of issues: studying multipath interference over a wide range of the radio spectrum; developing antennae that were electronically steerable and so could be steered to a reflected signal that was stronger than a direct signal; modulation and coding; and designing and constructing Monolithic Microwave Integrated Circuits capable of operating at over 60GHz.
12. In 1986, CSIRO had, through its radioastronomy research, developed and successfully prototyped a silicon chip, known as a Fast Fourier Transform processor. That enabled data to be transmitted on dozens of radio channels simultaneously. Using this device, the CSIRO's Division of Radiophysics transmitted data on parallel sub-channels. That lowered the data or symbol rate to a level where the indoor multipath problem was much less pronounced while at the same time allowing the combined set of sub-channels to carry data at a high enough rate to be commercially attractive.
13. By approximately the end of 1991, CSIRO had developed core aspects of WLAN invention. The invention was filed with the Australian Patent Office in November 1992 and with that in the United States of America (USA) in November 1993. It has since been filed with the Patent Offices in Japan and Europe. Following the filing of the patents, the CSIRO published a number of academic papers highlighting the research. CSIRO scientists were invited to deliver lectures to learned societies.
14. Standards for WLANs were developed by the Institute of Electrical and Electronic Engineers (IEEE). The IEEE is a non-profit organisation whose members discuss the requirements of communication systems and debate the benefits of various solutions put forward by members. Once agreement is reached a standard is ratified and published. Manufacturers then build products designed to comply with the standard. In that way, communications systems are able to inter-operate.
15. In Europe, a group of firms conducted a project funded by the European Union (EU). The project, codenamed "Magic Wand", led to the development of an international standard for WLANs in 1999 and another in 2003. Those standards replicate the techniques invented by the CSIRO. Any firm making units complying with the standards must be licensed by the CSIRO as the patent owner. The CSIRO advised the IEEE in a letter dated 4 December 1998 that it is prepared to license on reasonable and non-discriminatory (RAND) terms and so in circumstances where the licensee would pay a reasonable commercial royalty. Sales in 2005 numbered in excess of 100 million units.
16. Among others, the CSIRO entered agreements with the Electronic Engineering Faculty at Macquarie University (Macquarie University), which had chip design expertise and some decoder knowledge needed to undertake the WLAN Project. Those agreements were known as the Devices and Systems Hardware, or DASH, agreements. The first of them was entered in or about February 1992. Each year thereafter, the CSIRO and Macquarie University entered further agreements that were variations of the first. The variations took account of the activities planned for that year. Under those contracts, the CSIRO developed various aspects of the WLAN project. One such aspect was the development of the technology for the Medium Access Controller, which is a system for sharing a radio channel. Rights to that technology are co-owned by the CSIRO and Macquarie University. Another aspect was the design of a chip implementing the CSIRO's patented modem technology. Rights to that design are also co-owned by the two entities. Under the DASH agreements, the CSIRO has exclusive rights to commercialise the co-owned technologies and the proceeds of that commercialisation are distributed between the two on a pro rata basis according to their contributions.
17. In 1993, the CSIRO entered a pre-design study contract with IBM Australia in conjunction with the Wireless LAN group at IBM Yorktown Heights Research Laboratories. The study was directed to investigating the feasibility of developing WLAN products based on the intellectual outcomes of the PLAN's project.
18. Changes in the CSIRO's alliances and technological developments in Europe caused concerns for the CSIRO in the mid 1990s as to the ongoing viability of the WLAN Project. Despite those concerns and not wanting to lose what it had already invested, the CSIRO decided to seed-fund a demonstrator project within the Macquarie University. The "invention" of the internet in the mid 1990s with the consequent creation of a large potential market for the technology in the USA encouraged two professors from Macquarie University and Dr Percival, one of the WLAN inventors, to incorporate a company.
19. For reasons unconnected with its work regarding the technology, that company was incorporated in Delaware and known as Radiata Inc. It rented floor space from the CSIRO and had access to its infrastructure for work such as measurements and there could be an exchange of ideas. Later, Radiata Communications Pty Ltd (Radiata Communications) was incorporated in Australia in 1997. It undertook research and development as well as the engineering. Radiata Communications Inc was established in California to undertake sales and marketing in the USA. At that time, the USA represented 60% of the world's market for the technology. I will not distinguish among the three companies but refer to them all as Radiata Communications.
20. In 1997, the CSIRO entered a licensing agreement with Radiata Communications regarding the use of the co-owned technology developed under the DASH agreements. Radiata Communications' funding was provided by those involved in its formation, a START grant, a development grant from MA/Com and funding from Cisco Systems Inc (Cisco). Radiata Communications went on to be the first firm to demonstrate a WLAN system that was compliant with international standards developed as a result of the Magic Wand project. It did so at the Interop 2000 trade show.
21. Cisco acquired Radiata Communications in 2001 for $595M. By agreement with the CSIRO, all of the licences in respect of the technology developed under the DASH agreements with the Macquarie University were transferred to Cisco. Under the agreements between the CSIRO and Cisco, Cisco pays royalties to the CSIRO in respect of the sale of its licensed products.
A selection of written material relating to the PLANs project and WLAN
22. Mr Bell referred to a number of documents which he believed indicated that the commercialisation of the WLAN project was based on earlier "blue sky" research carried out by the CSIRO during a period including the early 1990s. He notes that no reference is made to the WLAN project in the 1990-91 Annual Report despite its having a section summarising achievements and developments across the CSIRO including the information and communications industries. I note that, under the heading of "Information and communications industries" and the subheading of "Achievements", the Report observed that the second generation of AUSSAT satellites to be launched in 1992-93 would give Australia the worlds first dedicated mobile satellite communications system, Mobilesat. The Division of Radiophysics had developed a low cost antenna for users of Mobilesat to attach to their vehicles and was then negotiating with several Australian companies which could manufacture, further develop and distribute the antenna. Under the sub-heading of "Developments", the opening of the Centre for Spatial Information was noted as was a grant from the Industrial Research and Development Board for the Parallel Image Processing and Display Systems project.[3]
23. The CSIRO's Annual Report for 1988-89 contains a chapter headed "Gallium arsenide research comes to fruition". It begins with a statement that, in the previous year, the Division of Radiophysics had moved to commercialise its gallium arsenide device research. The Division had initiated its research in 1982 with the objective of providing a resource base from which to launch an export-oriented Australian industry. "This bold step had no precedent in CSIRO."[4]
24. The gallium arsenide device research was one of the research programmes listed on the Contents page of the 1998-99 Annual Report. The others were signal and imaging technology, satellite and mobile antennas and earth-station and mm-wave antennas. The text regarding the first two concerns commercial opportunities that have been generated as a result of the research. The third refers to work that has already been done and which has found its way into the commercial market as well as its future design work.
25. The term "blue sky" is used in a paper to which Mr Bell refers. That paper was written by Dr Mark Matthews and Dr Bob Frater (Matthews/Frater paper). At the time Dr Frater was the Vice-President Innovation of Resmed Pty Ltd but, as Mr Bell states, Dr Frater had been the Director of the Institute of Information and Communications Technologies at least in 1988-89.[5].
26. The Matthews/Frater paper is entitled "Creating and Exploiting Intangible Networks: How Radiata was able to improve its odds of success in the risky process of innovating" and was delivered in November 2003. It is a case study showing:
"... how the pre-existing innovative capacity created by a domestic network associated with Australian radio-astronomy and electronic engineering was utilised by Australian entrepreneurs benefiting from exposure to US networks and business practices. The ability to develop semiconductor chips that integrated modem and radio functions via a minimum number of costly and time-consuming design iterations was a critical intangible asset. ..."[6]
27. The Matthews/Frater paper made a number of general points including:
" The main lesson learnt for science and innovation in Australia is that attention needs to be focussed upon the intangible 'assets values' created by networks of highly skilled scientists, engineers and entrepreneurs. These asset values are based upon an increased probability of success in innovating. This ... [in] turn is related to an increased probability of achieving a high proportion of design targets on the first major design iteration, thereby maximising the speed and minimising the cost of the overall design and development process. The availability of technologies that allow the time and cost of completing experimental development ('D' in R&D) to be minimised provide the scope for skill and experience to substitute for higher levels of investment in the innovation process. This competitive opportunity based upon 'low D R&D' is of particular importance to a small economy like Australia that does not have the advantage of economies of scale in finance for innovation. ..."[7]
" The movement from invention to innovation, that is to say the commercialisation of an invention, involves taking abnormally high investment risks in order to generate the (usually remote) possibility of making abnormally high returns. ..."[8]
" Some key lessons emerge from the Radiata story that are relevant to science and innovation in Australia. These are:
∙ the importance of 'blue sky' basic research in establishing demanding technological requirements for research instruments that, in turn, have wide-spread practical application;
∙ the nature and extent of Australia's inter-personal network-based 'intangible assets' used in innovation and the strategic management of people's careers in order that they obtain multi-sector experience;
∙ the significance of these intangible assets for mapping our innovation capabilities in terms of their impact upon investment risk management;
∙ how the 'science-push' ethos meshes with a 'demand-pull' ethos in the face of these risks;
∙ the sustained long-term planning and activities necessary to create these innovation networks (today's short-term tenures and more highly contested funding arrangements may limit this capacity);
∙ the role of international standard-setting procedures in creating market opportunities;
∙ the importance of fostering 'low D R&D' by combining high skill and substantial experience with state-of-the-art computer-based engineering design tools;
∙ how government programs can help entrepreneurs to manage investment risks through exposure to global experience and business practices;
∙ the long timeframes sometimes required for innovation to take place when we consider the capacity-building efforts that precede specific innovation episodes."[9]
28. Mr Bell referred to a number of extracts from the Matthews/Frater paper. All relate to the history of the WLAN project and are consistent with the findings I have set out in the Background to these reasons. Mr Bell also referred to a passage that is concerned with an attempt to obtain funding from the Cooperative Research Centre (CRC). That is a subject that I have not referred to above but I will place the extract in context:
" There are two dimensions to the innovation process that resulted in the development of effective wireless Local Area Network (LAN) technologies. Firstly, the growing awareness of the market potential for wireless LANs. Secondly, the specific ideas on how to solve the technical challenges. ...
With regard to the growing awareness of the market potential for wireless LANs, the underlying assumption in the late 1980s was that short distance wireless communication could be a major market area in the future as various users of electronic equipment sought to maximise the flexibility and inter-connectivity of different types of device. ...
Consequently, in the late 1980s a number of research teams started to think about the market potential of wireless LANs, and therefore started to think about the various technological solutions that might be developed in order to turn this concept into a reality. This interest was not restricted to Australia, researchers in major US corporations were also staring to think through the commercial and technological logic of developing technologies in this area. As members of this international community, researchers in the ... (CSIRO) Radiophysics Division and at Macquarie University's Electronics Department started to become active in considering both the overall market potential and the specific technological solutions that could be developed.
_During this era, the Cooperative Research Centre (CRC) Programme was launched with the stated aim that '_Australia must match the technology push provided by its strong research base with the demand pull of industry and other research users'.... _Macquarie University and CSIRO, who were already working collaboratively in this area joined forces along with industry partners to submit a proposal to the new CRC Programme to establish a 'Centre for Local Environment Communications Technology'. The proposed CRC aimed to develop advanced engineering design methods, performance prediction techniques, implementation and test methods that would facilitate the development of cost-effective advanced wideband wireless networking systems. This engineering work had a clear market focus, as the 1990 proposal noted in what, with hindsight, is a prophetic observation: '_Wireless services are now in their infancy and demand for wideband wireless networks will evolve dramatically over he next decade driven largely by commercial pressures'. However, the proposed CRC was not funded and the collaborative R&D continued by using available funding and resources in CSIRO Radiophysics Division and Macquarie University's Electronic Department."[10]
29. After speaking of a number of "pre-cursor activities", the Matthews/Frater paper says that:
" This complex chain of 'pre-cursor' activities was focussed around the dual objectives of improving radio-telescope performance and developing the industrial capacity to provide the technologies necessary to do this. The strategy was long-term and was not explicitly aimed at achieving specific commercial outcomes so must as pursuing a process of 'learning-by-doing' in chip design that would generate a wide range of options for future exploitation. ..."[11]
" This case study clearly illustrates the ways in which the apparently blue-sky research objectives of radioastronomy stimulate a range of application-oriented technological and engineering R&D. This R&D is aimed at advancing the instruments used to conduct this research. The capabilities of the instruments define what is possible in the research (resolution etc). This type of instrumentation-focused R&D creates substantial spin-off activity. This is primarily because the R&D involves pursuing 'envelope-pushing' performance goals yet also strong overlaps with lower-performance industrial and consumer applications of the technologies.
This type of instrumentation-focused R&D, and the application-oriented research training it requires, is a little mapped but critical pathway for research commercialisation. It often requires, as in this case study, close linkages with existing companies able to develop instrumentation technologies. ..."[12]
30. The Matthews/Frater paper addressed the long-term planning and activities necessary to create innovation networks:
" The network-building activities aimed at enhancing innovation capabilities described in this case study are strikingly similar to the mission of the CRC Programme. Yet, they took place without targeted funding and emerged from within the CSIRO and universities. One danger is that the current approach to public sector R&D management may limit the potential for this type of network building by formalising and bureaucratising the process of allocating resources for R&D and assessing R&D outcomes over relatively short timeframes. In addition, today's shorter-term tenures for senior R&D managers reduces their capacity to establish and to sustain the sort of long-term strategic capacity-building that this case study illustrates. Creating these networks requires budgetary 'slack' and continuity in senior management."[13]
31. The final passage to which Mr Bell referred in his affidavit comes within the section of the paper summarising the authors' conclusions:
" The value of intangible networks of people in increasing the odds of successfully completing the innovation process should not, therefore, be underestimated - even though the networks are hard to identify. They constitute a form of 'human capital' and of 'social capital' (the asset value created by trust and communities of practice). It is therefore necessary to achieve the right balance between informal, intangible networks based upon 'social capital' and the formal legal and organisational structures that are also necessary to conduct research and innovation. These organisational structures are particularly important when there is a need to create and own tangible assets and intellectual property. The Radiata story highlights the benefits of getting this balance about right. On the basis of the available evidence, the CSIRO played a key role in building-up innovative capacity via fostering external network-based relationships and multi-skilled research training. At the time this was done in the broader national interest not for direct commercial gain by the organisation. That said, CSIRO does now have the option to generate revenue from its 802.11a patent and recent press reports indicate that efforts to do this are being put in place [Australian Financial Review, 15 October 2003]."[14]
32. Mr Bell referred also to a paper entitled "A report to the National Committee for Astronomy for the Australian Astronomy Decadal Plan 2005-2015 By Working Group 1.3". It is dated September 2005. It is concerned with astronomical research which, the Working Group stated, is driven by what technology can do and relies on the development of increasingly sensitive telescopes and instrumentation. As with a number of other scientific endeavours, it also drives a wide range of technologies. Sciences such as Astronomy "... and their technologies co-evolve - the specification of scientific goals 'pushes the envelope' of the available technologies, which in turn are underpinned by fundamental science."[15]
33. When it came to industry, however, the Working Group considered that it did not reciprocate the enthusiasm for research and development in Astronomy. It considered that this was due to different factors driving the two:
"... Australian astronomy is driven by the development of technologies for the public good (often on 'extended' timescales subject to funding availability, etc) whereas industry (particularly the small/medium enterprise (SME) dominated Australian scene) cannot justify nor fund investment in risky, long lead-time, speculative R&D where the outcome may not be a significant contract or single-ownership IP.
It cannot be claimed that Astronomy generates innovative technologies for the wider market on either a reliable or frequent basis: historically there has been one outstanding example (Radiata) and a couple of viable, but smaller companies and technology spin-outs. So, rather than argue for an Astronomy initiative to support the direct flow-on to new industries we focus on ensuring that Government R&D funds are invested within Australia to the greatest extent possible over the period 2006-2015. With the investment on-shore, further benefit(s) and spin-offs will be more naturally captured, should the technologies emerge."[16]
34. The Working Group elaborated on the example of Radiata seeing it as an outstanding highlight in Australia's long and illustrious history of astronomical research which has been backed by the development of novel and ground-breaking instrumentation at radio, microwave and optical wavelengths. Apart from Radiata, whose fundamentals can be traced to research and development at the CSIRO, there are other examples. They include the Parkes HI multi-beam receiver (CSIRO-ATNF 1997), the two degree field instrument (2dF, AAO 1998) and the near-infrared integral field spectrograph for Gemini. Those developments generated contracts for similar instruments for other international telescopes. External income received from those contracts represents direct return for government's funding of Astronomy and, potentially, there are more significant contracts to come.[17]
35. What could be drawn from the Radiata and Gemini experience, the Working Group considered was:
"... that we cannot 'sell' the cost of Industry engagement on either rapid or guaranteed payback to Industry and the Government but rather on the delivery of operational instrument which serves as a proving ground for future spin-off: This issue is discussed by Matthews & Frater ... (in the context of radio astronomy and radio physics) 'R&D aimed at improving scientific instrumentation has the advantage of clear paths to adoption and use because it results in a fully working technology. The main question as regards wider commercial outcomes is the extent to which the demonstrated advances in instrumentation technology will diffuse into other markets and industries.' Radiata was an outstanding successful venture - one built upon a clear vision, a healthy network - mostly informal, of key personnel and skills, but most notably spanning decades of backbone research."[18]
36. In an Appendix, the Working Group summarised how it saw Radiata and its development:
"Radiata is the most successful Australian start-up whose origin lies in radiophysics research. The basic research into realising wireless LAN communications were developed in the 1990s and earlier radio research by many groups worldwide including CSIRO radiophysics and the Department of electrical engineering at Macquarie University. CSIRO funded the development based around 60 GHz given the expertise gained from radio astronomy and microwave landing systems, and developed a broadband wireless system based on the fast-fourier transform and coded orthogonal frequency division multiplexing (CODFM). A US patent (applicanle to the '802.11a' standard for WLANs - but also the .11g and .11j standards) was granted in 1995 .... Radiata was formed in 1997 to meet the demand for 5-GHz based wireless LANS. Radiata was purchased by Cisco in 2000 for AUD 567M. The interaction with CSIRO radiophysics continued, with research into indoor radio propagation and antennas in particular."[19]
37. The Working Group set out what it saw as the challenge for Astronomy and Industry:
"Astronomy recognises the important benefits of early engagement with industry, particularly in this era of billion-euro international facilities - the 'extremely large telescopes' ... Projects have benefited enormously from strong industrial engagement ...
The challenge is that the enthusiasm and engagement from Astronomy is rarely reciprocated by Industry due to their differing underlying drivers: Astronomy is driven by research and the development of technologies for the public good whereas industry cannot justify investment in risky, long lead time, speculative R&D where the outcome may not be a significant contract or single-ownership IP. However, early R&D is often the key to developing key capabilities - to gain best benefit Australian industry must be in the ELT [extremely large telescope] projects at their early stages, and not just at the final/build stage.
Contributing to the problem internationally, and particularly true in Australia, is that whilst Australian astronomers recognise the need for well-run interaction, there is little resourcing of this activity: often it is left to a keen project leader to be the 'key account manager' for one or more industrial partners which are managed alongside the project delivery. Experience tells that managing Industry collaborations can be high maintenance, to ensure the project goals are achieved."[20]
38. In an undated document entitled "Response to the House of Representatives Inquiry on Broadband Wireless", Dr Trevor Bird provided an overview of CSIRO's perspective on wireless technologies as applicable in the Australian context. Dr Bird is the Sector General Manager ICT of the CSIRO Telecommunications & Industries Physics. The paper canvassed the place of broadband wireless and emphasised the need to encourage its value through pilot studies. The CSIRO has a role to play in advising government of the advantages and disadvantages of emerging broadband wireless technologies as it has a wide range of skills relevant to the area.
39. In an Appendix to the paper, Dr Bird canvassed a number of matters including the development of the underlying technology for Radiata. The "... technology resulted from an ambitious CSIRO project that commenced in 1990 to demonstrate an indoor wireless local area network (WLAN) with data rate greater than 100 Mbps. ".[21] Dr Bird went on to describe how the CSIRO built upon its existing expertise in radio systems that was gained from radio astronomy and microwave landing systems. "Of importance for the future', Dr Bird continued, "was the submission of a provisional patent application for 'A Wireless LAN', which ultimately became foundation intellectual property for Radiata."[22] At about this time, then Vice President Al Gore promised that all schools in the USA would be connected by high speed internet and that frequency spectrum would be made available to do that. A study group developed the standard for indoor WLANs and CSIRO's patent was proposed as the basis of what became the 802.11a standard. Dr Bird continued by referring to the later developments I have already touched upon in relation to CSIRO's licensing its technology to all comers and Radiata's creation, investment and ultimate sale to Cisco.
40. The right of access to documents given by the FOI Act is framed very carefully. It is set out in s 11, which provides:
"(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access."
41. The opening words of s 11 impose the first qualification to the right. They are that the right is "subject to this Act". Qualifications of a procedural nature and others related to the work imposed on an agency or Minister by the request are found in Part III of the FOI Act. Other qualifications are concerned with the protection of "essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities".[23] These are found in Part IV.
42. In addition to these groups of qualifications, there are qualifications implicit in the words "document of an agency" and "exempt document". The right of access is given to a "document of an agency" i.e. it is given to:
"... a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency."[24]
That requires a consideration of the words "document" and "agency".
43. Taking first the word "agency", it means "... a Department, a prescribed authority or an eligible case manager".[25] The CSIRO is clearly not a Department but it is a prescribed authority. It comes within paragraph (a) of the definition of that expression in s 4(1) and is not excluded by the qualifications to that paragraph. In so far as it is relevant, paragraph (a) of the definition provides that a:
(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council ..."
44. The word "document" is given a wide definition in s 4(1):
(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
(ii) a map, plan, drawing or photograph;
(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v) any article on which information has been stored or recorded, either mechanically or electronically;
(vi) any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c) any part of such a copy, reproduction or duplicate;
(d) library material maintained for reference purposes; or
(e) Cabinet notebooks."
45. The right of access created by s 11 of the FOI Act does not extend to an "exempt document". That is, it does not extend to:
"(a) a document which, by virtue of a provision of Part IV, is an exempt document;
(b) a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State."[26]
46. Paragraph (b) is relevant in this case and it leads to s 7. Section 7 exempts certain persons and bodies from the operation of the FOI Act. In so far as it is relevant to this case, it provides:
"(1) The bodies specified in Division 1 of Part 1 of Schedule 2, and a person holding and performing the duties of an office specified in that Division, are to be deemed not to be prescribed authorities for the purposes of this Act.
(2) The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them.
(2AA) A body corporate established by or under an Act specified in Part III of Schedule 2 is exempt from the operation of this Act in relation to documents in respect of the commercial activities of the body corporate.
(3) In subsection (2AA) and Part II of Schedule 2, commercial activities means:
(a) activities carried on by an agency on a commercial basis in competition with persons other than governments or authorities of governments; or
(b) activities, carried on by an agency, that may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis in competition with persons other than governments or authorities of governments.
(4) In subsection (2AA) and Part II of Schedule 2, a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities."
47. Part II of Schedule 2 of the FOI Act includes the following entry:
"Commonwealth Scientific and Industrial Research Organisation, in relation to documents in respect of its commercial activities"
48. Section 43A of the FOI Act was inserted with effect from 25 October 1991.[27] It provides that:
(a) it contains information relating to research that is being, or is to be, undertaken by an officer of an agency specified in Schedule 4; and
(b) disclosure of the information before the completion of the research would be likely unreasonably to expose the agency or officer to disadvantage.
(2) This section does not apply to a document that, so far as it contains information relating to research, only contains information relating to research that has been completed."
49. The CSIRO was established by s 8(1) of the Science and Industry Research Act 1949 (Science and Industry Research Act). It is a body corporate consisting of the members of its Board and its officers.[28] Its functions are:
"(a) to carry out scientific research for any of the following purposes:
(ii) furthering the interests of the Australian community;
(iii) contributing to the achievement of Australian national objectives or the performance of the national and international responsibilities of the Commonwealth;
(iv) any other purpose determined by the Minister;
(b) to encourage or facilitate the application or utilization of the results of such research;
(ba) to encourage or facilitate the application or utilisation of the results of any other scientific research;
(bb) to carry out services, and make available facilities, in relation to science;
(c) to act as a means of liaison between Australia and other countries in matters connected with scientific research;
(d) to train, and to assist in the training of, research workers in the field of science and to co-operate with tertiary-education institutions in relation to education in that field;
(e) to establish and award fellowships and studentships for research, and to make grants in aid of research, for a purpose referred to in paragraph (a);
(f) to recognize associations of persons engaged in industry for the purpose of carrying out industrial scientific research and to co-operate with, and make grants to, such associations;
(h) to collect, interpret and disseminate information relating to scientific and technical matters; and
(j) to publish scientific and technical reports, periodicals and papers."[29]
In carrying out these functions, s 9(2) directs the CSIRO to treat the functions in ss 9(1)(a) and (b) as its primary functions and the remainder as its secondary functions.
50. Section 9AA(1) gives the CSIRO "... power to do all things necessary or convenient to be done for or in connection with the performance of its functions ...". It then goes on to specify particular powers it enjoys including:
"(a) arrange for scientific research or other work to be undertaken, on behalf of the Organisation, by any person or body;
(b) join in the formation of a partnership or company;
(c) make available to a person, on such conditions and on payment of such fees or royalties, or otherwise, as the Chief Executive determines, a discovery, invention or improvement the property of the Organisation;
I note that s 9AA was initially inserted in the Science and Industry Research Act with effect from 14 December 1978. It has been amended but s 9AA(1) remains in substantively similar terms.[30]
51. The CSIRO has power to enter contracts but must not do so without the Minister's approval if the amount at stake is greater than $250,000 or such higher amount as is prescribed.[31]
52. As the CSIRO is a body specified in Part II of Schedule 2, I will begin with a consideration of s 7(2) of the FOI Act. In so far as it relates to the CSIRO, it provides that it is exempt from the operation of the FOI Act "... in relation to the documents referred to in that Schedule in relation to ..." it. Although I am aware that Justice Bennett has considered this section and Schedule 2 in relation to the Australian Broadcasting Commission[32] and I am bound by her judgment I have approached the matter from first principles to better understand the ambit of her judgment and whether the principles she sets out are applicable to the differently worded exemption in relation to the CSIRO.
53. There are a number of authorities considering the meaning of the words "in relation to" but their essence may be said to have been captured by McHugh J in O'Grady v Northern Queensland Co Ltd:[33]
" The prepositional phrase 'in relation to' is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between the two subject matters."[34]
54. Three previous authorities considering the expression "in relation to" and to similar effect were considered by Conti J in McNeil v Federal Commissioner of Taxation:[35]
"[55] ...I was referred by the applicant to three authorities
which have considered the meaning of those words ["in relation to"] in other statutory contexts. The first was Workers' Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642; 81 ALR 260, where in the joint judgment of Deane, Dawson and Toohey JJ at CLR 653- 4; ALR 267, it was said that the expression in respect of (and similarly in relation to_) has a wide meaning, and '... gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends'. The second was_ Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) [1996] FCA 1789; (1996) 69 FCR 531 at 547; 139 ALR 527 at 542; 21 ACSR 474 at 490, where Lehane J (with whose reasons for judgment Lockhart and Foster JJ agreed) described the import of the words 'in relation to' in s 742(2) of the Corporations Law as 'very much a matter of impression', and found that an order dealing with the proceeds of the sale of certain shares in controversy, such as by vesting them in the Australian Securities
Commission, or by requiring payment of such proceeds into court, was not an
order 'in relation to' shares within that subsection. The third was Jeffrey James Prebble Pty Ltd v FCT (2003) ATC 4770, where Hill and Hely JJ observed at 4777, in the context of s 82AAA(i) of the 1936 Tax Act, as follows:
27. We find little assistance from the numerous cases which have concerned the words 'in relation to' for the meaning of the expression must be found from the context in which it appears. To say that the words require 'a relationship between two subject matters' will usually be true. ..."[36]
55. These are all cases in which there are, indeed, two subject matters and a relationship of some sort must be found between them. That meaning accords with one of the ordinary meanings given to the word "relation":
"... 4 a connection or relationship between one person or thing and another. ..."[37]
There are though, other meanings of that word. They include:
"... 7 a reference; b respect. ... ∙ in or with relation to something with respect to it."[38]
It is clear from the passage from the judgment of Hill and Hely JJ in Jeffrey James Prebble Pty Ltd v Federal Commissioner of Taxation to which Conti J referred in McNeil v Federal Commissioner of Taxation that the proposition that the words "in relation to" "... require 'a relationship between two subject matters' will usually be true....". "Usually" does not mean "always" and is consistent with the common theme through all of the cases that the meaning of the expression and the sufficiency of the link between two subject matters that it requires "... must be found from the context in which it appears."
56. The particular context in which I must consider the phrase "in relation to" is that of s 7 and, in particular, s 7(2). It is used twice in s 7(2). In the first instance, it is used in the sense of identifying the documents with reference to which, and so in relation to which, a person, body or Department will be exempt by virtue of s 7(2) and Part II of Schedule 2. It is used in the sense of "with respect to" or "with reference to". It does not leave the identification of the necessary connection between the documents and the person, body or Department to the exercise of a discretion. Instead, the effect of s 7(2) is that the connection is to be specified by Parliament in Part II of Schedule 2 when it specifies that the person, body or Department is exempt "in relation to the documents referred to in that Schedule in relation to them".
57. That phrase contains the second use of the expression "in relation to". It is again used in the sense of "with respect to" or "with reference to". It is a reference to the documents that Parliament has specified in the Schedule in respect of the particular person, body or Department and so with respect to which it is exempt from the operation of the FOI Act. Again, the provision does not require a decision to be made as to whether there is a connection of some sort. The connection is specified by Parliament. No other connection need be found for s 7(2) to take effect. All that s 7(2) requires is that there be specification of the person, body or Department in Part II of Schedule 2 and reference to documents with respect to them. Once that is done, the person, body or Department is exempt from the operation of the FOI Act in relation to those particular documents.
58. The entries in Part II of Schedule 2 are drafted to reflect the structure of s 7(1). The Part is headed "Agencies exempt in respect of particular documents". Without any further introduction, each person, body or agency is specified without more. Taking the entry regarding the CSIRO as an example, the entry then reads: "in relation to document in respect of its commercial activities". The words follow the formula set out in s 7(2). The expression "in relation to" carries same the meaning of "with respect to". It does not require any connection to be found between the CSIRO and the documents that are described. There is a connection to be found but that follows from the requirement that the documents be "in respect of" its commercial activities.
59. The expression "in respect of" has been considered in a number of cases and each concludes that the expression requires a connection or nexus between two subject matters. That conclusion accords with one of the expression's ordinary meanings that is relevant in the present context. It is the meaning of "reference, relation or connection".[39] One of the latest cases is New South Wales v Bujdoso[40] in which Basten JA, with whom Hodgson and Ipp JJA concurred, said:
"[60] The phrase 'in respect of' has been said, as his Honour noted, to have 'a wide meaning': see Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653. The High Court returned to this phraseology in Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45. Brennan, Deane and Gaudron JJ stated (at 47):
"The words 'in respect of' have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. The nexus between liability and motor vehicle which their use introduces in section 3(1) [of the Motor Vehicles Insurance Act 1936 (Qld)] is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernable or rational link between the basis of liability and the particular motor vehicle."
60. In Smith v Federal Commissioner of Taxation,[41] Toohey J considered the expressions "in respect of" and "in relation to":
" Whether the expressions 'in respect of' and 'in relation to' are synonymous may be arguable. But I would adopt the following passage from the judgment of the Supreme Court of Canada in Norwegijick v The Queen[[42]], delivered by Dickson J:
'The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject-matters.'"[43]
61. The following year, Toohey J, in a joint judgment with Deane and Dawson JJ, appears to have stepped back from the suggestion of the expression's probably being the widest of any expression intended to convey some connection between two related subject matters. Their Honours preferred to state that:
"... The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends."[44]
62. Applying these principles to the entry regarding the CSIRO, Part II of Schedule 2 requires that there be a connection between the document to which access is sought and the CSIRO's commercial activities. Once a sufficient connection is found so that the document can be said to be "in respect of its commercial activities", the CSIRO will be exempt from the operation of the FOI Act in relation to that document.
63. A similar approach is required in relation to each of the bodies specified in Division 1 of Part II although it varies according to the activities or functions that Parliament tries to exclude from the scope of the FOI Act. The entries in relation to Comcare and the Australian Postal Corporation, for example, are framed in the same terms as that for the CSIRO and focus on their commercial activities.
64. The entry in relation to the Australian Trade Commission focuses on its overseas development projects and seeks to exempt the Commission from the operation of the FOI Act in so far as it concerns that function. It does so by adopting a slightly different formula from that used in the entry relating to the CSIRO:
"'Australian Trade Commission', in relation to documents concerning the carrying out, in whole or in part, of overseas development projects"
The entries in relation to the Classification Board and the Classification Review Board adopt the same formula. That in relation to the Classification Board reads:
"... in relation to exempt Internet-content documents concerning the performance of a function, or the exercise of a power, under Schedule 5 to the Broadcasting Services Act 1992."
The entries use "concerning" rather than "with respect to" but the result is the same. A connection must be found between documents that come within the description of "Internet-content documents" and the performance of the function or exercise of the power as described.
65. The final way in which the entries are expressed is illustrated by that in relation to the Special Broadcasting Service Corporation (SBS) and to the National Health and Medical Research Council (NHMRC). Neither relates to an activity. In relation to the SBS, it reads:
"Special Broadcasting Service Corporation, in relation to its program material and its datacasting content".
"National Health and Medical Research Council, in relation to documents in the possession of members of the Council of National Health and Medical Research Council who are not persons appointed or engaged under the Public Service Act 1999"
66. These entries reflect a different approach from the other examples I have given. It does not require a connection to be found between the documents under consideration and the program material, in the case of the SBS, or the possessed documents, in the case of the NHMRC. Instead, it is requiring a consideration of the documents alone. If those documents come within the description of "program material"[45] or "datacasting content", SBS is exempt from the operation of the FOI Act. If they come within the description of "documents in the possession of members of the Council of the National Health and Medical Research Council who are not persons appointed or engaged under the Public Service Act 1999", the NHMRC will be exempt in relation to them. In either case, the "program material" or "datacasting content" or the possessed documents will have to come within the broad definition of a "document" to raise the possible application, and consequent exemption from, the FOI Act at all.
67. A similar approach has been taken in s 7(2AA). The expression "in relation to" has been used to identify the documents in respect of which any body corporate specified in Part III of Schedule 2 is exempt. Parliament has specified the connection between the body corporate and exemption and leaves no room for further consideration of that issue. The difference between it and s 7(2) is that s 7(2AA) has no need to use the expression "in relation to" on a second occasion. That is because it describes itself the category of documents that are exempt and does not leave it to Schedule 2 to do so. The only work that Part III of Schedule 2 has to do is to specify any body corporate established by or under an Act. Once specified, s 7(2AA) automatically comes into play and that body corporate will be exempt from the operation of the FOI Act in respect of its commercial activities.
68. Although directed to excluding bodies and persons from the scope of the FOI Act, s 7(1) follows a similar pattern to s 7(2). Specification of the bodies in Part 1 of Schedule 2 is all that is required to ensure that they are deemed not to be prescribed authorities for the purposes of the FOI Act. Section 7(1) does the work and all that has to be done in Part 1 of Schedule 2 is to name the bodies or persons.
69. There is, therefore, a consistent pattern throughout the provisions of s 7(1) and in the way in which the entries are drafted in Schedule 2. Relying only on the interpretation of the words of the FOI Act, it seems to me that the exemption provisions of Division 1 of Part II of Schedule 2 are intended to be confined to documents in respect of certain activities or functions or to documents that meet certain descriptions. They are not intended to apply to documents in relation to those documents. In relation to the NHMRC, for example, the exemption is not intended to apply to documents in relation to documents in the possession of its members who are not persons appointed or engaged under the Public Service Act 1999. It is confined to the documents in the possession of members of the specified category. In relation to the CSIRO it is intended to be limited to the documents in respect of its commercial activities. The exemption is not intended to apply to documents in relation to documents in respect of its commercial activities.
70. Section 15 of the Acts Interpretation Act 1901 (AI Act) provides that a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not. Section 15AB of the AI Act, in so far as it is relevant and subject to s 15AB(3), that:
"... in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or unreasonable."
With that in mind, I have referred to the Second Reading Speech delivered by the then Attorney-General, Senator Durack, in introducing the Freedom of Information Bill 1981 (1981 FOI Bill) as well as to the Report by the Senate Standing Committee on Constitutional and Legal Affairs on the earlier Freedom of Information Bill 1978 (1978 FOI Bill) and aspects of the Archives Bill 1978 (Senate Report).[46]
71. The Senate Report was prepared after the 1978 FOI Bill and the Archives Bill 1978 had been referred to the Senate Standing Committee on Constitutional and Legal Affairs for inquiry and report on issues common to both. At the time, s 5(c) of the 1978 FOI Bill provided that:
(c) a specified agency is to be exempt from the operation of this Act in respect of documents relating to specified functions or activities of the agency or in respect of documents of any other prescribed description."
"... Had the exemption related simply to 'specified classes of documents' there would be no justification for such exemption at all since the existing Part IV exemptions more than adequately cater for all conceivable categories of exemption of documents by description. However, the exemption is not this broad. It is limited to documents of a prescribed description of a specified agency_. It provides for a more limited exemption than total exemption of an agency. Without such a provision the more draconian step of complete exemption of an agency might be called for in situations where not all of the agency's documents really require to be exempt. We envisage, however, that the circumstances would be rare in which it would be appropriate to exempt documents under this section rather than under one of the other grounds of exemption in Part IV. One such case might well be documents which relate to Aboriginal tribal and ceremonial secrets. ..._
12.13 Perhaps the best example of a legitimate use of the power to exempt particular classes or records of an agency is to be found in evidence given us by representatives of the Australian Broadcasting Commission... In their submission the ABC made out a persuasive case for exemption of their program material from the provisions of this Bill. On the one hand it is clear that certainly not all, and perhaps very little, of the program material presented on radio and television throughout Australia would fit squarely within the four corners of any of the Part IV exemptions. But it is equally clear that this is not the type of material with which the Bill is concerned. The ABC would also face a problem in determining its copyright obligations for purchased programs ... By the same token, the public has a right to examine the administrative operation of the Commission to ensure that it is efficiently and properly conducted at public expense. It would thus not be appropriate to exempt the agency entirely from the operation of the Act. Nor could all conceivable 'documents' of this kind be adequately excluded from the definition of document in clause 3 [now s 4(1)]. The only practical solution is to exempt the program material of the ABC from the provisions of the Act. So that Parliament can be satisfied that only that which should be exempted, is exempted, the exemption should be by way of inclusion in a schedule to the Bill rather than by regulation.
12.14 12.14 Recommendation: The exemption of ... classes of documents of an agency ... should be achieved by listing them in a schedule to the Freedom of Information Bill ..."[47]
73. It is implicit in Senator Durack's Second Reading Speech that the Senate Committee's recommendations had been adopted. He said:
" The 1978 Bill provided that agencies might be exempt from its operation by means of regulations. Clause 6 of the present Bill, and the Schedule to the Bill, will have the effect that certain agencies are exempted by the Bill itself from its scope either wholly or as to specified functions. This Schedule is in two parts. The first part of the Schedule specifies those agencies which are totally exempt, that is the freedom of information legislation does not apply to them at all. Part II of the Schedule lists those agencies which are exempt in respect of certain functions. The effect is that a request may not be made under the legislation for access to a document which relates to a function in respect of which an agency is exempt."[48]
The Explanatory Memorandum to the 1981 Bill is to the same effect.
74. This passage supports the interpretation I have given above. The partial exemption of an agency from the operation of the FOI Act is given to protect disclosure of information contained in documents regarding certain functions where that protection would not necessarily be available by means of the exemption provisions of Part IV. When regard is had to the different formulations of the exemption in Part II of Schedule 2, it is clear that Parliament was careful to distinguish between those situations in which a particular person, body or Department is exempt in relation to a document having the requisite connection with the function or activity and those in which it is exempt only in relation to the function or exemption itself. In the case of the SBS, that function or activity is its program material and its datacasting content. That material and content will, of course, be in documentary form within the meaning given to "document" in s 4(1) for otherwise, a request for it could not be contemplated under the FOI Act at all.
75. The Explanatory Memorandum to the Law and Justice Legislation Amendment Bill 1994 also supports my analysis of s 7 and Schedule 2. The Law and Justice Legislation Amendment Act 1994 (1994 Act) amended Part II of Schedule 2 by dividing it into two Divisions.[49] The new Division 1 contained all the persons, agencies and Departments specified in the original Part II. The purpose of the new Division 2 was to specify agencies that would not be exempt from the operation of the Privacy Act 1988 as was the case with those specified in Division 1. The 1994 Act added the CSIRO to Division 1 of Part II of Schedule 2 in the terms in which it is currently drafted.[50]
The case law: Australian Broadcasting Corporation v The University of Technology, Sydney and Australian Postal Corporation v Johnston
76. In Australian Broadcasting Corporation v The University of Technology, Sydney,[51] Bennett J considered the entry in Division I of Part II of Schedule 2 in relation to the Australian Broadcasting Corporation, which reads:
"Australian Broadcasting Corporation, in relation to its program material and its datacasting content".
Her Honour said that, had the Schedule simply listed a category of documents, such as "scripts for programs", the exemption would have been in relation to scripts for programs. The Schedule does not do that though and so leads to a different result:
"There is no need to repeat 'in relation to' in the Schedule unless it adds a further qualification. The fact that this expression appears in each entry in the Schedule means that, putting the section and the Schedule together, exemption is granted 'in relation to ... in relation to' the category specified."[52]
77. Having interpreted the section in this way, Bennett J said that a "... further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS."[53] The entry for each of those other agencies is in terms of documents in respect of a particular activity.
"... This provides a further limitation on the scope of the exemption by reference to a particular activity. For example, if the Schedule were to specify 'scripts for programs with respect to current affairs', the exemption would be in relation to documents that fitted that description."[54]
78. Bennett J noted that, in some contexts, "in respect of" may have a wider meaning that "in relation to" but, in the context of the Schedule, "in respect of" has a narrower meaning.
"... That is, 'in respect of' is used in the sense of 'with reference to' .... A sufficient or material connection or relationship is required when 'in respect of' is used, rather than a mere direct or indirect relationship when 'in relation to' is used .... A further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS."[55]
79. Her Honour identified a distinction between the exemption defined in terms of documents and an exemption defined in terms of an activity. The absence of any reference to documents in the entries for the ABC and SBS may be explained by the absence of any reference to an activity in relation to them. Bennett J read the provisions of s 7(2) and of the Schedule for agencies other than the ABC and SBS in the following way:
"_'in relation to the documents' (s 7(2)) '_in relation to documents in respect of [the activity] (the Schedule)'."[56]
"_'in relation to the documents' (s 7(2)) '_in relation to its program material (the Schedule)'."[57]
"17. It may well be that the repetition of 'in relation to documents' was unnecessary for the other agencies, as it was for the ABC. However, the repeated use of 'in relation to' reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category. Even if, as submitted by UTS, 'in relation to' can mean 'for', it is unlikely that it was intended to carry that restricted meaning both in s 7(2) and the Schedule. It may be that, reading s 7(2) and the Schedule together, the exemption is 'for documents in relation to' the category specified but I do not accept that the intention was to exempt only the specified category itself.
18. That conclusion is reinforced by an appreciation of the consequences of the construction advance by UTS, namely that the only exemption is for the 'sights and sounds', the recordings and tapes. The program may not be recorded until it is publicly transmitted. Once transmitted, the material would be in the public arena. The ABC would be deprived of the exemption prior to transmission and other partiers would be able to obtain information in advance of proposed programs. If a program were not recorded, there would be no exemption. Such a construction would mean that there would be little utility in providing an exemption from production of the recordings.
_19. The parties only referred to one case where the Schedule was discussed (_Rivera v Australian Broadcasting Corp [2005] FCA 661; (2005) 144 FCR 334). While Rivera concerned the Privacy Act 1998 (Cth), it did refer to the Schedule. The observation of Hill J at [38], that the ABC is exempt under the Act 'in respect of "documents" in relation to its program material', is consistent with these reasons. "[58]
"31. A construction which limits the exemption only to the tapes and recordings that formed the program material yields, to my mind, an improbable result. The exemption in s 7(2) is in terms of documents. Documents are broadly defined and include 'material' in the nature of tapes and recordings. That does not necessarily mean that other forms of document are excluded by the description 'program material'. Even if the category of documents specified is limited to tapes and recordings, the exemption both in the section and the Schedule is in relation to that program material. If a document has a direct or indirect relationship to program material, subject to one further matter, is exempt. I see no reason for a limitation to intellectual property. For example, I do not accept that scripts for programs are not included. They are either program material or documents that relate to program material.
32. The further consideration is the condition in s 7(2) that an agency is exempt in relation to the documents referred to in the Schedule 'in relation to them'. That requires the documents to have a relationship not only to program material but also to the ABC. Letters of complaint about the ABC's programs and responses to those complainants on the same subject as well as documents internal to the ABC on this subject are in relation to the ABC. Indeed, the contrary argument was not advanced by UTS [University of Technology, Sydney]."[59]
82. Greenwood J decided Australian Postal Corporation v Johnston[60] some nine months after Australian Broadcasting Corporation v The University of Technology, Sydney. Although concerned with whether Australia Post was exempt from the operation of the FOI Act in relation to a list of licensed post offices (LPOs) on the basis that the list was in respect of its commercial activities, his Honour made no reference to it or to s 7(2). Instead, he posed the question in this way:
"The sole question to be determined by the Tribunal was whether the list is a document in respect of Australia Post's commercial activities by determining whether the document was brought into existence in the course of or for the purposes of the carrying on of those activities. That test required the Tribunal to determine, on the evidence, the purposes for which the list was brought into existence; whether there was one or more purposes and if more than one purpose including a purpose of carrying on Australia Post's commercial activities, whether that purpose was a substantial purpose."[61]
83. The case that I must consider concerns the CSIRO and not the ABC. That is not in itself a sufficient basis on which to distinguish the judgment of Bennett J in Australian Broadcasting Corporation v The University of Technology, Sydney. While her Honour has gone beyond the precise issues she had to determine, her reasoning necessarily has an impact upon the interpretation of the remaining entries in Division 2 of Part II of Schedule 2 of the FOI Act. At the same time, Greenwood J has not seen the issue in the same terms. I am in somewhat of a dilemma as a result. My dilemma does not arise because of my uncertainty as to my role because that is clear. I am bound by the principles established by the Federal Court for it is for it to determine the law and the Tribunal to ascertain and apply it.
84. My dilemma arises for two reasons. The first is how I should apply the two judgments when they appear to take different approaches. The second arises from my obvious difficulty in understanding Bennett J's reasoning. I will start with my latter reason, should it be the case on the assumption that I must apply the law as expressed in Australian Broadcasting Corporation v The University of Technology, Sydney. My difficulty in understanding cannot be used as an excuse to fail to apply the law. At the same time, I feel that it is not inappropriate to express my difficulty. The Tribunal is formally part of the Executive although it acts independently of it. The Executive is concerned, in part, with the development of policy behind the law that Parliament makes and, in part, with the administration and implementation of that law. Courts do not make policy although they will often need to ascertain it from the law that Parliament has made and the statements made by the Executive preceding the making of that law. Given its role in reviewing the merits of administrative decisions, the Tribunal can have its own insight into the way in which a law works in practice in day to day administrative matters. As part of the Executive, it is not beyond its role to make the occasional observation about such matters.
85. What is of particular concern to me in the context of this case is that I do not understand how I should apply her judgment to the case I must consider. The conclusion that Bennett J reached was set out in [16] of her judgment when she set out how s 7(2) and Division 1 of Part II of the Schedule should be read. Although I have already set it out, I will do so again. For agencies other than the ABC and SBS, the exemption is, as interpreted by Bennett J:
"_'in relation to the documents' (s 7(2)) '_in relation to documents in respect of [the activity] (the Schedule)'."[62]
"_'in relation to the documents' (s 7(2)) '_in relation to its program material (the Schedule)'."[63]
86. Given that interpretation, it would seem to follow that the ABC and SBS are exempt from the application of the FOI Act where the documents fall within the description of "documents in relation to its program material". Given her Honour's emphasis on the connective expression "in relation to" in s 7(2), it is difficult to see how the exemption can also extend to the program material itself.
87. The entry in Part II of Schedule 2 in relation to ABC is couched in terms of a description of the documents. The problem becomes even more acute when an entry is couched in terms of an activity. The documents as described are those in relation to documents in respect of the stated activity. Section 7(4) assists in ascertaining the documents that are in respect of the particular activities but Bennett J's interpretation requires a further connection to be made. That is, she requires a connection to be made between the documents as ascertained by reference to s 7(4) and other documents that can be said to be "in relation" to those documents.
88. That process does not lead to the conclusion that documents in respect of the specified activity or description are exempt. To reach that conclusion, a connection has to be made between the exemption and the description of the documents in the particular entry in Part II of Schedule 2. To my mind, that result is at odds with what was intended in enacting s 7(2) and Division 1 of Part II of Schedule 2 but, as I have said, I am bound by the law as found by the Federal Court.
89. That brings me back to the other reason for my dilemma. Do I apply the law as found in Australian Broadcasting Corporation v The University of Technology, Sydney or as appears to have been assumed in Australian Postal Corporation v Johnston regarding the proper interpretation of s 7(2) and Part II of Schedule 2? In view of Bennett J's conclusion that program material is encompassed as well as documents in relation to program material, the practical outcome is that there is probably no difference between the two in the circumstances of this case. Applying her Honour's conclusion to the circumstances of this case, documents in respect of the CSIRO's commercial activities will be exempt, as they would be under Greenwood J's analysis, as well as those in relation to documents in respect of CSIRO's commercial activities. Should I be incorrect, I have considered the matter from both points of view.
Identifying the documents "in respect of" commercial activities: s 7(4)
90. In the context of this case, s 7(4) provides that documents in respect of commercial activities are those that were "received, or brought into existence in the course of, or for the purposes of, the carrying on of those" commercial activities. What is meant by "receive, or brought into existence" seems clear but I will spend a moment on what is meant by the timing of their receipt or creation. The timing is determined by the requirement that they have been received or brought into existence "in the course of, or for the purposes of, carrying on" the commercial activities.
91. The expression "in the course of" signifies that the commercial activities are actually being "carried on" by the relevant body, in this case the CSIRO, when the documents are received or come into existence. That interpretation is supported by the interpretation of the provision under s 26(1) of the Trade Marks Act 1955, previously in force. It provided that a mark is not distinctive of the goods of a person unless it is adapted to distinguish goods with which that person is or may be "connected in the course of trade from goods ...". In Ritz Hotel Ltd v Charles of the Ritz Ltd,[64] McLelland J of the Supreme Court of New South Wales said:
" The meaning of the expression 'connection in the course of trade' was discussed in Aristoc v Rysta Ltd [1945] AC 68 in terms adopted by the Full High Court in WD & HO Wills (Australia) Ltd v Rothmans Ltd [1956] HCA 15; (1956) 94 CLR 182 at 188-90. It seems clear from that discussion that the expression connotes, on the part of the proprietor of the mark, at least some degree of participation in the production or distribution of the goods in question before they reach the consumer. Whether the mere ability to control the quality of the goods, arising from contract or otherwise would establish a sufficient 'connection', remains unsettled ..."[65]
92. A similar approach is taken to the interpretation of a similar expression: "the ordinary course of business". Rich J considered it in Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in Liq):[66]
"It means that the transaction must fall into place as part of the undistinguished common flow of business done, that it should form part of the ordinary course of business as carried on, calling for no remark and arising out of no special or particular situation."[67]
Dixon CJ adopted a similar view in Taylor v White:[68]
"... 'in the ordinary course of business' is meant to refer to transactions regularly taking place in a sustained course of activity or some usual process naturally passing without examination."[69]
93. On their face, the words "for the purposes of" also signify that the activities are being carried on at the time. They may, however, signify something broader. They may signify that the activities are yet to be carried on but the documents have been received or brought into existence in contemplation of those activities. That broader interpretation is supported by the ordinary meanings of the words making up the expression. That is to say, that the documents have been received or brought into existence "for the function for which ... [they] are intended" i.e. carrying on commercial activities in the context of this case.
94. That interpretation is consistent with Greenwood J's interpretation of the expression "for the purposes of" in s 7(4) in Australian Postal Corporation v Johnston. I have set out the question that Greenwood J saw as the question for the Tribunal to consider. His Honour referred both to the need to determine whether the document was brought into existence in the course of Australia Post's commercial activities or for the purposes of those activities. He then went on to explore the purposes for which the document was brought into existence rather than whether it did so in the course of commercial activities. As to the facts of the case, Greenwood J said:
" There is one list brought into existence for the purposes which include in part a purpose of assembling information which has a connection with the provision of reserved services [i.e. Australia Post's exclusive right to carry letters and to issue postage stamps in Australia] and a purpose of real substance of carrying on the commercial activities of Australia Post. Although it is not necessary to determine whether such a purpose is the sole purpose or a dominant purpose, the evidence before the Tribunal leads inevitably to the conclusion that such a purpose was of very real substance."[70]
95. Given the expanded meaning of "commercial activities" in s 7(3), the documents coming within the scope of s 7(4) are not limited to those that are received or brought into existence in the course of, or for the purposes of activities being carried on in competition with persons other than governments or authorities of governments at the time that they are received or brought into existence. They include those but extend to those that may reasonably be expected in the foreseeable future to be carried on by the agency on that basis.
96. I have been referred to three previous authorities in which the exemption provisions in s 7(2) and Schedule 2 have been considered. In the earliest case, Re Johnsons Creek Conservation Committee v Commonwealth Scientific and Industrial Research Organisation,[71] Senior Member Allen considered a decision refusing access to a report prepared by the CSIRO and commissioned by private environmental consultants to a private entity in relation to the water impoundment of a proposed open cut mine. He found that the contract between the CSIRO and the private environmental consultants was a "commercial contract and constituted commercial activities in terms of subsection 3 of section 7 ..." of the FOI Act.[72] He did so after reciting three paragraphs from a statement of facts agreed between the parties. In summary, they stated that the CSIRO has carried out commercial research activities including collaborative and research services to industry and to the public for a price. The price it charges is similar to that charged by private research or scientific entities which operate as businesses for profit. At all material times, the CSIRO had competed with private entities in the provision of environmental research services to the public.
97. The second case is Re Papps and Australian Postal Corporation[73] in which Senior Member Dwyer considered whether the services reserved to Australia Post by s 29 of the Australian Postal Corporation Act 1989 (APC Act) is a commercial activity as that term is defined by s 7(3) of the FOI Act. She decided that it is not as it is not carried on by Australia Post on a commercial basis in competition with persons other than governments or authorities of governments and may not reasonably be expected to do so in the foreseeable future. Senior Member Dwyer had no need to consider the meaning of "commercial".
98. Senior Member Beddoe considered the expression "commercial activities" in Re Pye and Australian Postal Corporation.[74] The request under the FOI Act had been for access to all documents relating to the sale of the Sandgate Post Office in Queensland to a company. Senior Member Beddoe noted that Australia Post's function is to supply postal services within. In addition, it may carry on any business or activity capable of being carried on by the use of its resources that are not immediately required to carry on its principal or subsidiary function or in the course of supplying postal services. It also has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions. This is the effect of ss 14, 15, 16 and 17 of the APC Act. In carrying out its functions, it has all the powers of a natural person including entering contracts and having the power to acquire, hold and dispose of real and personal property.[75] Australia Post must also act in a manner consistent with sound commercial practice. That is the effect of s 26 of the APC Act.
99. Senior Member Beddoe found that, on its face, Australia Post was acting within both its powers and functions in entering the contract of sale in respect of the Sandgate Post Office. In doing so, it was "... engaged in the commercial real estate market, on a commercial basis, in competition with persons other than governments and public authorities and so as to increase and maximise returns with a view to making profits."[76]
100. Having reached that conclusion, Senior Member Beddoe set out the path he followed in doing so:
"... [T]he consideration of the functions of the respondent is the starting point for determining the character of its activities and in particular whether an activity is a commercial activity as defined. The scope of the activities in performing the functions of the respondent is determined by reference to the powers conferred upon the respondent to carry out its functions (and comply with its obligations).
[51] In my view if the relevant functions performed by the respondent can be properly characterised as commercial activities then it will follow that transactions by the respondent in exercising its powers to carry out those functions will also be commercial activities.
[52] I am satisfied that post office activities, whether conducted from a traditional post office or from a shop front are commercial activities because they are conducted on a profit-making commercial basis in competition with other private retailers. Clearly some transactions conducted at a post office many not be profit-making but the overall impression is one of carrying on business to make a profit. Selling of stamps for letters is a profit-making undertaking in competition with other retailers who also sell postage stamps, notwithstanding that the respondent has a limited monopoly in respect of the letter service.
[53] The principal purpose of the letter service is to carry within Australia and between Australia and overseas letter that the respondent has the exclusive right to carry. It is based on the respondent's exclusive right to carry letters within Australia (s 30 of the Postal Act) but the exceptions to the reserved services in s 30 make it clear that it is only a particular aspect of the postal services where it can be argued that the respondent is not in competition with persons other than governments and public authorities.
[54] I am satisfied that the sale of the Sandgate Post Office involved the respondent in exercise of powers within the terms of its functions. In exercising those powers the respondent was engaging in its commercial activities as defined by s 7(3) of the Act."[77]
101. Although most reluctant to disagree with Senior Member Beddoe, I wonder whether this is the correct approach. I will set out my concerns and then consider the matter again in light of Greenwood J's judgment in Australian Postal Corporation v Johnston. Senior Member Beddoe has started with the agency's functions. Unless I have misunderstood him, he has then decided whether those functions, as a whole, can be characterised as commercial. If they are, then any activity undertaken in the exercise of its powers and within the terms of its functions is a commercial activity. Assuming that I have correctly understood the reasoning and that its functions can, as a whole, be characterised as commercial, would mean that Australia Post would be exempt under s 7(2) in respect of all of its activities. If that were the correct outcome, I wonder why Parliament did not decide to provide that Australia Post is deemed not to be a prescribed authority for the purposes of the FOI Act. It could have done that by specifying it in Part 1 of Schedule 2 using the power in s 7(1).
102. In light of the wording of the entry in Division 1 of Part II of Schedule 2 and the meaning attributed to "commercial activities" by s 7(3), it seems to me that I must focus on "activities" and not upon "functions". The word "function" means, in so far as it is relevant:
"... 1 the special purpose or task of a machine, person, ... 3 a duty particular to someone in a particular job ..."[78]
An "activity", on the other hand, is, again in so far as it is relevant:
"... (activities) 1 the state of being active or busy. 2 (often activities) something that people do, especially for pleasure, interest, exercise etc ..."
103. There is a difference between a purpose or a task, and so a function, and the doing of things to carry out that purpose or task, and so the activity. This distinction would seem to be drawn in the FOI Act itself. Apart from the references to "activities" of specified types ss 7(2AA) and & (3) as well as in Schedule 2, reference is made to "activities" in s 4(5) in the context of understanding the meaning to be given to the expression "security of the Commonwealth". Section 4(5)(a) begins with the statement that the expression "... shall be taken to extend to ... matters relating to the detection, prevention or suppression of activities, whether within or outside Australia ..." (emphasis added). The very next sub-section refers to the "functions" of the agency and what is to be done when a request is made to an agency whose "functions" are acquired by one or more other agencies.[79] The reasons for choosing the particular word in each sub-section is clear and they are clearly directed to different matters. The security of the Commonwealth is concerned with the doing of things. What is to be done with a request is to be determined by the agency with responsibility for the task or function with which the request is concerned. In the same way, s 8 of the FOI Act is not concerned with the activities of an agency but with its functions and the way the decision-making powers involved in those functions affect members of the public. It requires the responsible Minister of an agency to set out a statement specifying those matters as well as others.[80] The Minister's power in s 94(2)(b) to set certain charges in respect of a request are also focused on the activities of search and retrieval of the requested documents and of making the decision on the request and not upon the agency's function.
104. The distinction between a function and an activity is also drawn in the Science and Industry Act itself. Section 9 specifies the CSIRO's functions and s 9AA specifies its powers to do the things that are necessary or convenient to be done for or in connection with the performance of its functions. When it exercises its power to do those things and does them, it is carrying out activities. The distinction mirrors that drawn by McHugh JA in GJ Coles & Co Pty Ltd and Others v Retail Trade Industrial Tribunal[81] between the duties of a public office and the purpose for which it was established:
"... The duties of a public office include those lying directly within the scope of the office, 'those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes': Nesbitt Fruit Products Ince v Wallace 17 F Supp 141 at 143 (1936)."[82]
Distinguishing between activities and functions does not mean that functions are irrelevant in characterising those activities. The functions provide the framework within which an agency may undertake its activities lawfully and may give context and colour to the reasons why particular activities are undertaken.
105. Once identified, the "activities" must be identified as having been "carried on" by the agency "on a commercial basis in competition with persons other than governments or authorities of governments" if they are to come within s 7(3)(a). An understanding of what is meant by "carried on" in the context of the expression "carrying on business" is given in the judgment of Gibbs J in Smith v Capewell:[83]
" ... The expression 'carry on business', in its ordinary meaning, signifies a course of conduct involving the performance of a succession of acts, and not simply the effecting of one solitary transaction. In Smith v Anderson (1880) 15 Ch D 247 ; [1874-80] All ER Rep 1121, where the Court of Appeal considered the effect of s 4 of the Companies Act 1862 (UK) which spoke of an 'association ... formed ... for the purpose of carrying on any ... business', Brett LJ said, Ch D at 277-8; All ER Rep at 1130: 'The expression "carrying on" implies a repetition of acts, and excludes the case of an association formed for doing one particular act which is never to be repeated.'
In Kirkwood v Gadd [1910] AC 422 ; [1908-10] All ER Rep 768 Lord Loreburn LC said (AC at 423): 'What is carrying on business? It imports a series or repetition of acts.' In the same case Lord Atkinson (at 431) referred with apparent approval to the statement of Brett LJ in Smith v Anderson_. Similarly, in_ Premier Automatic Tickets Issuers Ltd FC of T [1933] HCA 51; (1933) 50 CLR 268 at 298, Dixon J, in a passage frequently quoted, said that 'the carrying on or carrying out of any profit-making undertaking or scheme' in a taxation statute, 'appears to cover, on the one hand, the habitual pursuit of a course of conduct, and, on the other, the carrying into execution of a plan or venture which does not involve repetition or system ...'. The decision in Cornelius v Phillips [1918] AC 199 ; [1916-17] All ER Rep 685, is not authority for any different view of the meaning of the expression. It was there held that a money-lender had carried on the business of money-lending at an hotel which was not his registered address although he had effected only one transaction at the hotel. In that case, which was recently discussed and distinguished in Yango Pastoral Co Pty Ltd v First Chicago Aust Ltd [1978] HCA 42; (1978) 21 ALR 585 ; 53 ALJR 1, the single transaction which fell within the statutory prohibition was conducted by a person who was, on any view, carrying on a money-lending business. Similarly, in Lowe v Cant [1961] SASR 333, it was held that a milk vendor who had been allotted a zone under regulations governing the supply of milk and who, on one occasion, delivered milk to a householder in another zone, had carried on business as a retail vendor of milk within a zone other than that allotted to him. Again, there was no doubt that the milk vendor was carrying on business as such or that the isolated transaction which occurred outside his allotted zone was done in the course of carrying on that business. In these cases, although the defendant engaged in only one transaction of the kind proscribed, that transaction was done in the course of carrying on a business. A single transaction may amount to the carrying on of a business, although no other transaction has so far been effected, if it is proved that there was an intention to carry on a business and that the transaction was undertaken in pursuance of that intention: Fairway Estates Pty Ltd v F C of T [1970] HCA 29; (1970) 123 CLR 153 at 164-5. ..."[84]
106. This passage refers to intention and that was also the subject of the following passage from the judgment of Hill J in Goodman Fielder Wattie Ltd v Commissioner of Taxation.[85] His Honour considered it in the context of determining whether a taxpayer was carrying on a business when it made payments to a research institute for scientific research:
" An intention to carry on a business will not determine that a business is in fact carried on: see J & R O'Kane v Inland Revenue Commissioners (1922) 12 TC 303, per Lord Buckmaster. As that case pointed out: 'The intention of a man cannot be considered as determining what it is that his acts amount to.'
However, this is not to say that intention may be wholly irrelevant. ... Fairway Estates Pty Ltd v Commissioner of Taxation (Cth) [1970] HCA 29; (1970) 123 CLR 153 ..."[86]
107. Other elements that may be relevant in considering whether there is a business carried on were considered by Bowen CJ and Franki J in Ferguson v Commissioner of Taxation:[87]
"... The nature of the activities, particularly whether they have the purpose of profit-making, may be important. However, an immediate purpose of profit-making in a particular income year does not appear to be essential. Certainly it may be held that a person is carrying on business notwithstanding his profit is small or even where he is making a loss. Repetition and regularity of the activities is also important. However, every business has to begin and even isolated activities may in the circumstances be held to be the commencement of carrying on business. Again, organisation of activities in a business-like manner, the keeping of books, records and the use of system may all serve to indicate that a business is being carried on. The fact that, concurrently with the activities in question, the taxpayer carries on the practice of a profession or another business does not preclude a finding that his additional activities constitute the carrying on of a business. The volume of his operations and the amount of capital employed by him may be significant. ..."[88]
108. The expression "carried on" is only part of s 7(3)(a) and regard needs to be had to the remainder before reaching a conclusion as to its meaning. The need for them to be carried on "on a commercial basis in competition with persons other than governments or authorities of governments" is another aspect of the provision. Therefore, I will look next to the requirement in s 7(3)(a) that the activities under consideration be carried on by the agency "on a commercial basis".
109. The ordinary meanings of the word "commercial" include:
"... 1 relating to, engaged in or used for commerce. 2 profitable; having profit as the main goal. ..."[89]
In Re Pye and Australian Postal Commission, Senior Member Beddoe accepted that he was:
"... satisfied that Post Office activities, whether conducted from a traditional Post Office or from a shop front are commercial activities because they are conducted on a profit making commercial basis in competition with other private retailers. Clearly some transactions conducted at a Post Office may not be profit-making but the overall impression is one of carrying on business to make a profit. Selling of stamps for letters is a profit-making undertaking in competition with other retailers who also sell postage stamps, notwithstanding that the respondent has a limited monopoly in respect of the letter service."[90]
The overall impression that Australia Post is carrying on a business to make a profit is underscored by its obligation under s 54 of the APC Act to pay the Commonwealth a dividend at the end of each financial year. In the course of his reasons, Senior Member Beddoe referred to the judgment of Kirby J in Hodges v Frost[91] when he said that "... services provided by commercial agencies ... will also necessarily have an element of profit in their charges."[92] His Honour did so in the context of comparing services provided by commercial agencies with those provided by friends.
110. Dr Levy, Member, took a similar view in Re Johnston and Australian Postal Corporation.[93] He said:
"'Commercial activity' therefore can be regarded as a business venture with a profit-making and, strictly speaking, will involve activity to generate trade and sales with a view to profit. This is particularly so when the volume of the activity is on a large scale."[94]
111. A number of authorities have considered expressions such "commercial transaction", "commercial premises" and "commercial ... affairs". Each provides guidance on the approach that should be adopted in deciding whether particular activities but not on what is meant by the expression "commercial basis" as it is used in s 7(3). I will return to them later in these reasons but, first, I will consider the meaning of the expression.
112. Mr Pizer submitted that the activities must be exclusively concerned with the making of profits or immediate gains from the activity itself and not with the possibility of making them at some time in the future when carrying out subsequent activities. This construction, Mr Pizer submitted, is supported by s 7(3)(b), which brings within the scope of "commercial activities" those that may "reasonably be expected in the foreseeable future to be carried on" on a commercial basis as required by s 7(3)(a). Again, I will return to this matter later in these reasons.[95]
113. Mr Pizer also referred to s 43A(1) of the FOI Act, which I have set out above. In brief, it provides that a document is an exempt document if it contains information relating to research, which has been undertaken by an officer of an agency specified in Schedule 4 and not completed but whose disclosure would be likely unreasonably to expose the agency or officer to disadvantage. He submitted that the existence of s 43A and its application to the CSIRO supports the view that its internal research activities are to be regarded and treated as separate and distinct from its commercial activities. Further, it supports the view that its internal research activities, which are those not conducted for a particular client, are not carried out on a commercial basis. Those research activities carried out for a particular client for a fee are within the CSIRO's powers to undertake and are clearly commercial undertakings. That accords with the Tribunal's conclusion in Johnstons Creek Conservation Committee v CSIRO.[96]
114. I do not agree with Mr Pizer regarding the effect of s 43A on the interpretation of s 7(3). It seems to me that s 43A has no effect. That follows from its place in Part IV exempting a number of specified types of documents from access under the FOI Act. An agency or Minister asked for any document coming within one or other of those specified types may decide to claim that it is exempt under the relevant section and refuse a request for access to it. Should refusal be the decision, the agency or Minister must be prepared to bear the burden of establishing that the document does in fact come within that description and any discretion has been properly exercised. Section 7(3) is enacted for the purpose of interpreting Part II of Schedule 2. Part II of Schedule 2 must, in turn, be read with s 7(2) exempting particular agencies from the operation of the FOI Act in relation to documents referred to in the Schedule in relation to them. That must mean that Parliament intended that a request for access to a document referred to in Schedule 2 may be refused whether or not it would be exempt under a provision of Part IV. In view of that, it would be inappropriate to read down the provisions of s 7(3) in light of any of the exemption provisions in Part IV.
115. Mr Pizer also submitted that the expression "commercial basis" is ambiguous. Therefore, regard must be had to the principle that:
"..where ambiguity is encountered, the rights given by the Act should be construed liberally and the exceptions narrowly."[97]
That principle does not conflict with the judgment of the Full Court of the Federal Court in News Corporation Ltd v National Companies and Securities Commission[98] to the effect that it is inappropriate to interpret the exemptions narrowly in light of the FOI Act's stated object in s 3.[99] The CSIRO is funded in part by public funds and it should be accountable to the public for the use of those funds. If Mr Hanks' interpretation of s 7(3) were adopted, it would remove the CSIRO from the operation of the FOI Act to a very large extent. That would be undesirable, Mr Pizer submitted.
116. Mr Pizer submitted that I should not follow the decision reached in Re Delgarde Legal Services Pty Ltd and CSIRO.[100] In that case, Senior Member Ettinger reviewed a decision made under s 24(5) of the FOI Act to refuse to grant access to documents in accordance with the request. The request had, in broad terms, sought access to documents from CSIRO in relation to its wireless LAN technology and, more particularly, in relation to its funding for research relating to that technology and its applications for patents and licensing agreements in relation to it. Senior Member Ettinger concluded that:
"... from the face of the documents and the whole purpose of developing and marketing WLAN technology and obtaining patents was with a view to commercial activity which was within the functions and powers of CSIRO. I find that the fact that part of its funding is through the Government does not alter that. ...
... I accepted that agreements are part of commercial activity, and the very acts of licensing, exploiting patents and protection of patent rights with regard to the WLAN technology would need to involve agreements.
As to markets; I accepted that the market in this area is the market for the rights in the technology, and it was the same market in which Intel, Dell, Hewlett-Packard, Microsoft and others operated in competition with each other. ...
I have considered the request for the documents, and I am satisfied that each of the 15 items relate in their entirety to the developing and exploiting of WLAN technology by CSIRO. I am satisfied from the face of the documents to which the request was expressed to relate were documents received or brought into existence by CSIRO in the course of, or for the purposes of activities carried on by it on a commercial basis. I am satisfied that those activities were, and continue to be conducted with a view to profits or financial benefit to CSIRO, whose powers and functions provide for commercial activity, and that these activities are conducted in competition with non-government entities. ..."[101]
117. The Re Delgarde reasons for decision reveal a decision based on the particular evidence before the Tribunal. That is, of course, as it should be as that is the task of the Tribunal in reviewing the merits of the particular decision. My reading of the reasons does not, however, reveal an express statement of general principles underpinning the decision and assisting me in deciding the proper interpretation to be given to the provisions of s 7(3) in general and the meaning of the expression "commercial basis" in particular.
118. The development of general principles begins with the principle stated by Lockhart J in Colakovski v Australian Telecommunications Corporation:[102]
" Before parting from the case there is a final observation I wish to make. The FOI Act is, as its preamble states, 'an Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies'. The object of the Act is stated in s 3 as being to enable Australians to have access, as far as is possible, to information in the possession of the Federal Government by making available to the public, information about the operations of Departments of the Commonwealth and its public authorities and by creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities. But, as s 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being 'necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities'".[103]
119. This passage underlines what is clear from s 3(1)(b) itself. The right of access to documents is not given pre-eminence over the exemptions and exceptions to it so that the right of access is construed liberally and the exception and exemptions narrowly. The right of access is subject to the exceptions and exemptions necessary for the protection of certain public, personal and private interests. The exceptions and exemptions necessary to protect those interests are set out in Part IV and s 7 when read with Schedule 2. If a document comes within those provisions, it is an "exempt document" as defined in s 4(1). The duty to give access to a document requested under the FOI Act does not extend to an exempt document. That is the effect of s 18(2). Had Parliament given the right of access a pre-eminence of some sort, the correlative duty imposed on the Minister or agency would have mirrored that right. As it is, the duty mirrors a right that is qualified. It follows that the exceptions and exemptions to the right of access should not, as a matter of principle, be construed narrowly and the right of access more liberally. Each must be given its meaning according to its terms and the context in which it appears and not artificially narrowed or extended.
120. Deciding what does not affect the meaning of the expression "commercial activities" does not take me any closer to understanding its meaning and, in view of that part of the definition in s 7(3)(a), to understanding the meaning of "activities carried on by an agency on a commercial basis". It is clear from the judgment of the Full Court of the Federal Court in Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd[104] that engaging in activities that necessarily mean that an agency must engage with those in private enterprise does not necessarily give that agency's activities a character of "commercial" as opposed to a character of "administrative" or "governmental". The Full Court referred with approval to the judgment of Drummond J, on appeal from the Tribunal, when distinguishing between the two. It described his Honour's conclusions:
"26 His Honour considered that there is a distinction between government functions and trading or commercial functions and trading or commercial functions and that the distinction holds true even though government may deliver its governmental functions to interested members of the public in a commercial format, for example, by 'out-sourcing' them to private service providers. If it adopts that method of governmental service delivery, it is still engaged in the function of government, not in the business of trade activity.
27 His Honour concluded that the Department, in letting contracts as described above, is nonetheless engaged in governmental, that is, non-commercial, functions. That a government department may procure goods or services from private suppliers as a means of performing government function does not necessarily mean that procurement becomes a commercial activity of the department, even though the sale and purchase of similar goods or services are the subject of trade among private sector suppliers and consumers. ...
28 His Honour considered that, to attract the exemption provided by s 43(1)(b), the information must not merely have value to the Department. That value must also be able to be described as commercial in character. The fact that the exemption is an extension of the exemption provided for in respect of trade secrets indicates that the information must have value to the Department in respect of those of its activities which can be said to bear a commercial, as opposed to an administrative or governmental character. ..."[105]
121. A similar approach was taken by the Court of Appeal in Victoria Aircraft Leasing Ltd v United States and Others[106] when it considered whether the United States of America was immune from a claim that its agent, the Export Import Bank of the United States (Bank), had promised to give Victoria Aircraft Leasing Ltd (VALL), an agent of the Republic of Nauru, additional time to pay the debt it had incurred in relation to the purchase of an aircraft. As it was, the Bank's security trustee had recovered possession of the aircraft after VALL had defaulted on the mortgage. Section 9 of the Foreign States Immunities Act 1985 provides that foreign states are immune from the jurisdiction of the Australian courts but an exception is provided for in s 11. Section 11 provides for an exception in relation to proceedings concerning "commercial transactions". That expression is defined to include, in part, commercial, trading, business, professional or industrial transactions including a guarantee or indemnity in respect of a financial obligation. At trial, Dodds-Streeton J had set aside the proceedings on the basis that they were not commercial transactions.[107]
122. On appeal, Buchanan JA, with whom Callaway JA and Williams AJA agreed, said that the transaction between Nauru and the United States had to be viewed as a whole. Even if one or more aspects of the transaction fell within one or other aspects of the definition of "commercial transactions", that transaction did not necessarily come within that description. The promises made by the United States regarding finance were part of a package or program of assistance in return for political favours. The transaction could not be described as one for the provision of finance or as a guarantee or indemnity in respect of a financial obligation.
123. At trial, Dodds-Streeton J had referred to two cases as to how government activity should be characterised. In the first, Owners of Cargo Lately-Laden on Board Playa Larga v Owners of I Congreso del Partido,[108] Lord Wilberforce considered the exception to the principle that sovereign states are immune from challenge in relation to their actions. In broad terms, that exception provides that "... acts done within the commercial or trading activity are not immune"[109] from private law resolution by the courts. Such resolution is "... neither a threat to the dignity of the state nor any interference with its sovereign functions."[110]
124. Re Canadian Labour Code,[111] is a Canadian case in which La Forest J said that:
"... the proper approach to characterizing state activity is to view it in its entire context. This approach requires an examination predominantly of the nature of the activity, but its purpose can be relevant."[112]
Dodds-Streeton J explained that La Forest J had gone on to expand upon his understanding of the effect of the requirement to view the matter in its entire context:
" La Forest J considered that the 'entire context' included both the nature and purpose of the act, although the latter should be neither decisive nor predominant, as otherwise all the acts of a commercial agent would be an act jure imperii_. He acknowledged, however, that the converse is also true, and 'rigid adherence to the "nature" of an act, to the exclusion of purpose, would render innumerable government activities_ jure gestionis_'._"[113]
125. Reading the whole of s 7(3) and to the principles in the cases to which I have referred, it seems to me that I should have regard to all the activities in question both in isolation and in the context of all of the activities of the agency. Those activities may constitute one or more of a series of activities that can themselves be regarded as being conducted on a commercial basis in competition with persons other than governments or authorities of governments. They may constitute a single activity which would not, taken on its own, be regarded as an activity conducted on a commercial basis in competition with others but which would, when taken in the context of the agency's other activities, be seen as such an activity. Activities carried on by an agency must start at some point. If regard is being had to the first activity, regard needs to be had to the intention of the agency in undertaking that activity and to any subsequent activities in order to determine their proper characterisation.
126. Activities are conducted on a commercial basis in competition with others if they are activities that are related to, engaged in or used for commerce. Regard must be had both to the nature of the particular activities and their purpose. Profit making or the generation of income or return in some form can be expected as an ultimate goal of the agency that is engaged in the activities but may not be an immediate outcome of the particular activities under consideration. The return can be expected to be that which a reputable business person would expect regard as fair and reasonable in the circumstances of the market. The particular activities must have a quality of regularity or, perhaps, continuity directed to the ultimate goal but, in the early days, it is possible that activities may be commercial activities even if they are sparse.
127. It is essential that the activities are those that are related to, engaged in or used for commerce in competition with other persons other than governments or authorities of government if they are to come within s 7(3)(a). The notion of "competition" generally signifies that there will be a person or entity with whom to compete.[114] This was developed by Northrop J in Adamson v West Perth Football Club (Incorporated)[115] in the context of s 45 of the Trade Practices Act 1974. That section when he said:
"... The meaning of the word 'competition' may vary according to the context in which it is used. ... When used in s 45 of the Act, the word is used in a commercial or economic sense. Thus in order to have competition in a market, there must be substitution between one product and another and between one source of supply and another in response to changing prices or the quality of the product being supplied. ..."[116]
The context, of which s 45(1) is a part, includes s 45(3) defines what is meant by "competition". It does so by reference to the market in which the corporation concerned is, or is likely to, supply or acquire goods or services. That is not the context of s 7(3) of the FOI Act but the element of rivalry in business or commerce remains. It does not necessarily mean that the rivalry must relate to goods or services that are directly substitutable but the goods and services must be directed to similar uses or address similar needs. If it were the case that the agency were a market leader and there are no such goods or services from rivals and so no rivalry, it cannot be said that the agency's activities are carried on by it in competition with others. That is so even if the activities are carried on in the way that is on a commercial basis. The activities could not be said to come within s 7(3)(a). They may, though, come within s 7(3)(b). Depending on the facts, they may do so on the basis that there may be rivals in the future and it may reasonably be expected that the agency will carry on its activities on a commercial basis in competition with them. If the agency is so far in front of the market that a competitor is not reasonably likely to appear in the foreseeable future, the agency would have to rely not on exemption of itself from the FOI Act in relation to the document but on exemption of the document from disclosure under the exemption provisions of Part IV of the FOI Act.
128. By focusing on activities carried on by an agency on a commercial basis, s 7(3) separates them from any other activities that an agency may undertake in carrying out its functions and in its general administration. It may be that administrative activities connected with what I will loosely describe as the "commercial enterprise" will be activities carried on by an agency on a commercial basis in competition with other persons. All will depend on the particular circumstances of the case.
129. The distinction drawn in ss 7(3)(a) and (b) between "activities carried on by an agency on a commercial basis" and "activities ... 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" is pertinent. It means that s 7(3)(a) must be read as referring to those activities that are carried on by the agency on a commercial basis at the relevant time. I will come back to what is the relevant time in the following paragraphs. Section 7(3)(a) does not extend to those that may be carried on in that way in the future, when viewed from the relevant time, or that the agency hopes may be carried on in that way at some time.
130. Over the years, an agency may engage in an activity that is commercial and of the type that is referred to in s 7(3)(a), or that becomes commercial in that way over the years, but may cease to do so by the time that a request is made under the FOI Act. The focus of s 7(3)(a) on "activities carried on" by the agency in competition with persons other than governments or government authorities could be read as referring to the proper characterisation of activities carried on at the time of the request or at the time of the decision or of its review by the Tribunal. Equally, it could be read as referring to the characterisation of activities carried on by the agency at the time they were carried on at the time that the documents were received or brought into existence or at some time between that date and the date of the review.
131. It seems to me that the latter interpretation is the appropriate interpretation given the provisions of s 7(4). When read with s 7(3)(a), the effect of that provision is that documents received or brought into existence in the course of, or for the purposes of, the carrying on of commercial activities are regarded as documents in respect of particular activities. Section 7(4) clearly shows that regard is had to the proper characterisation of the documents at the time that they were received or brought into existence. Whether the activities to which they relate at the time of the request retain their characterisation of commercial activities is irrelevant.
"Activities ... that may reasonably be expected in the foreseeable future to be carried on by the agency on a commercial basis ...": s 7(3)(b)
132. Section 7(3)(b) refers to activities that "may reasonably be expected" in the "foreseeable future" to be carried on by an agency on a commercial basis. What does that mean and when is it assessed? Taking the second question first, it seems to me that it must be again be answered in light of s 7(4) because that provision identifies the documents that are to be regarded as documents in respect of the activities specified in Part II of Schedule 2. That section directs attention to the documents when they were received or brought into existence. Therefore, when s 7(3)(b) seeks to define one particular type of activities that will be regarded as commercial activities, it seems to me that the definition must be applied to those particular documents and so to them at the time they were received or brought into existence. That is not to say that regard cannot be had to events as they transpire for they may reflect on what might reasonably have been expected in the foreseeable future. I will return to this aspect later in these reasons.
133. I am mindful that the way I understand ss 7(3)(a) and (b) may mean that they do not encompass documents that are, at the time of the request but not at the time they were received or came into existence, in respect of activities that are carried on by an agency on a commercial basis at the time or that are in respect of activities that are reasonably expected to be carried out on that basis in the foreseeable future. That is to say, documents that are not in respect of commercial activities as understood by s 4(3) at the time they are received or brought into existence will not be in respect of commercial activities even if those particular activities of the agency later gain that character.
134. That brings me to the first question I asked above. I am not aware of any authorities considering these words. The FOI Act has used a similar, but not identical expression in other sections. That is the expression "would be, or could reasonably be expected to". Section 43(1), for example does so in exempting a document from disclosure under the FOI Act if its disclosure would, or could reasonably be expected to, have any one or more of a number of consequences specified in the section. What was meant by "would" is clear but what "could reasonably be expected to" have specified consequences has been explored in a number of cases. I will refer to them before considering the meaning of the precise expression I must consider.
135. In The News Corporation Ltd v National Companies and Securities Commission,[117] Fox J declined to paraphrase the statutory language.[118] Bowen CJ and Beaumont J expressed a similar sentiment in Attorney-General's Department v Cockcroft,[119] which considered s 43(1)(c)(ii) of the FOI Act. That provision exempts from disclosure information concerning certain business or professional matters which "could reasonably be expected to" prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency. Their Honours said:
"In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 per Gibbs CJ and Mason J."[120]
"... stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information."[121]
136. Cockcroft's case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another.[122] It said:
"In the application of s43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable."[123]
137. What matters may a decision-maker take into account in applying the test? In considering a similarly worded exemption provided for in s 33, Deputy President Hall said in Re O'Donovan and Attorney-General's Department:[124]
"(21) That is not to say, however, that every claim of exemption under s 33 will be sustainable. As the President pointed out in Maher [Re Maher and Attorney-General's Department (1985) 7 ALD 731], a mere allegation that disclosure could reasonably be expected to cause damage to the international relations of the Commonwealth is not enough. Neither is the mere fact that another government has expressed concern about the disclosure of the communication. Whether disclosure of the document could 'reasonably' be expected to cause damage to the international relations of the Commonwealth may well involve difficult questions of judgment and degree. The expectation that the disclosure of the document could cause such damage must be an expectation that is reasonable in all the circumstances, having regard, in particular, to the nature of the information contained in the document, the circumstances in which that information was communicated, and the nature and extent of the relationship between Australia and the foreign country concerned."[125]
138. The expression "could ... be reasonably expected to have ascertained" appears in s 7(3) of the Patents Act 2001 (Patents Act). It does so in the context of the information that was "prior art information" that had been made publicly available in certain ways and that a "... skilled person ... could, before the priority date of the relevant claim be reasonably expected to have ascertained, understood and regarded as relevant to work in the relevant art in the patent area." That information is relevant for the purposes of s 7(2) of the Patents Act. Section 7(2) provides that an invention is taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in light of common general knowledge and whether that knowledge is considered with the information referred to in s 7(3) or separately from it. Tamberlin J considered this provision in NSI Dental Pty Ltd v University of Melbourne:[126]
"194 The reference to 'reasonably expected' in s 7(2), in my view, means that it is not simply a question of a person's capacity to use search tools and methods in order to locate information but rather whether, in the opinion of the Court, there is on the evidence a reasonable degree of expectation that the skilled person would have ascertained the information.
195 The word 'could' is modified by the requirement of a 'reasonable expectation' in the light of an assessment of what a skilled addressee would do according to expert evidence. The language does not impose any requirement that all skilled addressees would have done so. The test is also concerned not with an individual skilled addressee but rather with the constructive or hypothetical addressee with all the notional qualities attributed to the skilled addressee. The question should be addressed on the basis of a legal construct, not greatly dissimilar to that of the hypothetical reasonable man used in other areas of law, but with the particular attributes required of a skilled addressee in the field. The test is an objective one and is not limited to accepting what any particular skilled addressee asserts would have been done."
139. The principles expressed by Tamberlin J are consistent with those expressed in the authorities considering similar expressions in the Patents Act. All require more than mere assertion by the person claiming that the outcome is likely. All require the determining body to approach the task objectively by having regard to the appropriate information. What amounts to appropriate information differs. In the case of s 7(2) of the Patents Act, it is defined by reference to the knowledge of a skilled person. In the case of s 7(3)(b) of the FOI Act as well as in those of other relevant provisions of the FOI Act, there is no such reference point. The provisions are couched in the passive, rather than the active, voice but that does not lead me to conclude that I should necessarily decide the question by reference to the hypothetical reasonable person of the sort resorted to in the law of torts. Rather, regard should be had to the hypothetical reasonable person, who is informed about the activities in question, the agency's activities and likely activities and activities and likely activities of others engaged in the field or likely to become engaged in the field. All will be relevant in deciding whether the activities may reasonably be expected to be carried on in competition.
140. It could be considered that such an enquiry is without bounds in terms of timeframes and that, theoretically, a competitor is always likely to emerge at some time in the future. The enquiry does have bounds though and those bounds are represented by the words "in the foreseeable future". In the context of the "foreseeable future", the word "foreseeable" is "referring to a time as long as one can envisage given the current circumstances".[127] The enquiry can go no further than that.
141. Unlike the other provisions to which I have referred, s 7(3) precedes the expression "reasonably be expected" with the word "may" rather than the word "could"? Does the use of that word lead to a different meaning or a different approach? The meanings of the word "may" include, in so far as they are relevant:
"... 2 ... used to express a possibility I may come with you if I get this finished. ..."[128]
The meanings of the word "could" show that it is also:
"... used to express a possibility He could be exactly what we are looking for! ..."[129]
In view of these meanings, it seems to me that I should interpret the expression "may reasonably be expected to" in the same way as "could reasonably be expected to".
142. It is well recognised that the process of administrative decision-making, including the Tribunal's review of particular decisions, is a continuum.[130] One of the outcomes of that characterisation is that the Tribunal is not limited to the evidence available to the maker of the decision under review.[131] It may have regard to other evidence but the nature and extent of that evidence is tailored by the type of decision under review and the parameters within which that decision must be made. As Branson J said in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd[132] in concluding that the Tribunal could not consider evidence of improvements made to a nursing home after its accreditation had been varied because of its failure to comply with certain Aged Care Standards:
"... That is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal's decision, that evidence must, in my view, bear on the merits of the decision as at the time that it was required to be made."[133]
143. The impact of the type of decision upon the evidence is illustrated by the following extract from the judgment of Davies J in Freeman v Secretary, Department of Social Security:[134]
"The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.
Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, in Re Easton, in Jebb's case and in McGourty's case_, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision._
However, in the present case, the decision under review was not a decision refusing to grant a pension but a decision cancelling a pension as from 19 May 1987. After the decision in Re Tiknaz was handed down, the Act was amended by the insertion of ss 158(2) and 159(2). Those sections provide that the grant or payment of a pension shall not be made except upon the making of a claim for that benefit or allowance, which claim is to be in writing and lodged in accordance with s 158(1) and s 159(1). One effect of these provisions is that once a pension or benefit has been cancelled, the previous recipient has no entitlement to restoration thereof until he or she has lodged a further claim in accordance with s 158(1) and s 159(1).
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s19."[135]
144. The impact of the parameters within the decision must be made and so reviewed is illustrated by the judgment of Wilcox, Burchett and French JJ in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services.[136] Under the National Health Act 1953, the Minister may give directions to a registered health insurance organisation with respect to the scope and level of benefits available to contributors. Once registered, the organisation must notify the Secretary of certain changes it makes to its constitution, articles of association or rules. Where of the opinion that a change may, among other matters, impose an unreasonable or inequitable condition affecting the rights of any contributors, the Minister may declare that the change has not come into operation. The Full Court of the Federal Court explained how the particular decision limited the evidence to which the Tribunal could have regard:
" In the present case, the question before the primary decision-maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuring three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors. Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position. It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change. The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments. But the evidence must be related back to the date of the change."[137]
145. The same point had been made a year earlier by Hill J in Surinakova v Minister for Immigration and Ethnic Affairs:[138]
"There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters that should have been taken into account at the time the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration."[139]
146. The principles determining the nature of the evidence to which the Tribunal may have regard are equally applicable to determining the evidence to which I may have regard in this case. Given my understanding of s 7(3), I must have regard to the evidence at the time the documents were received or brought into existence in the course of, or for the purposes of, carrying on the activities under consideration. I may also have regard to events as they turned out to the extent of shedding some light on the probability, when viewed from an earlier time, of the events' occurring.
What of the documents claimed to come within the scope of Part II of Schedule 2?
147. On the basis of the description of the eight documents identified by CSIRO and my examination of them, I am satisfied that they were received or brought into existence during the period between 1 January 1976 and 27 November 1993. That is the period covered by Mr Bell's request. During those years, the CSIRO was engaged in a number of activities including the activities that I have described in the Background paragraphs in these reasons. The issue in this case does not centre on those activities but the proper characterisation of those activities.
148. While I agree with Mr Bell's assessment of the CSIRO's 1989-90 and 1990-91 Annual Reports as not containing any reference to PLAN or the WLAN project, I do not agree that they should be read as indicating that the CSIRO's research were blue-sky at that stage and so "...having no immediate practical application; hypothetical. ...".[140] Those Annual Reports must be read with the other material and oral evidence.
149. I accept that the CSIRO was not publishing scientific documents on the WLAN project before it obtained its patent just as it made no reference to its research in its Annual Reports to that time. On the basis of Dr Cooper's evidence, I am satisfied that it did not do so because its work was considered commercially sensitive. It wanted to ensure that it protected the knowledge that it could be done as well as how to do it. The former knowledge was almost as valuable as the latter. As the CSIRO believed that it had the commercial advantage in the area, it did not want to publish anything until after it had made the patent application.[141]
150. Dr Cooper's evidence is consistent with the approach that appears from the Annual Reports. Taking the 1988-89 Annual Report as an example, it reports on the CSIRO's research into gallium arsenide but the Division of Radiophysics had already moved to commercialise its research. The Annual Report refers to the CSIRO's research in other areas but none gives the detailed analysis accorded its gallium arsenide research. Rather, each is a one line and very general reference unless steps had already been taken to commercialise. Taking the chapter dealing with antennas as an example, it deals in some detail with satellite antennas and mobile communications in a little detail. From the text, it is clear that the CSIRO had already carried out a number of contracts in the area including those related to AUSSAT and particularly AUSSAT-B. AUSSAT-B was also the subject of the paragraph regarding mobile communications as it was the catalyst for Radiophysics' developing novel low-cost antennas suitable for use on vehicles and vessels in conjunction with it. AUSSAT-B was in the public arena at this time and so the need for antennas would have been no surprise. Nothing is revealed regarding the detail of CSIRO's work. Even less of its work is revealed under the heading of "Areas of research" in the chapter on antennas. There are references such as "optimum designs for shaped beams" and "mutual coupling in conformal arrays".[142]
151. The 1990-91 Annual Report is different in appearance and more detailed but, for my purposes, the approach is similar. I note that each of the research projects it describes has been developed and either being tested or applied or, if intended to have a commercial outcome to some extent, its commercial potential is being exploited by the CSIRO.
152. The structure of the Annual Reports and their omission of any reference to the PLANs project supports Dr Cooper's oral evidence regarding CSIRO's not publishing scientific documents on the subject at all at that time. He said:
"... We weren't publishing scientific documents at that time because we considered it to be commercially sensitive and obviously if you've got a patent application in mind, you certainly don't publish until after the patent application. But in this particular case, we wanted to keep everything under the lid, so to speak, because we believed that we had a commercial advantage in what we were doing and didn't want our know-how [sic] One of the important things in these sorts of gains is the knowledge that it can be done is almost as valuable as knowing how to do it."[143]
153. In light of this evidence, I am satisfied that the CSIRO's lack of reference to the PLANs project in its published material does not of itself mean that the research should be characterised as having no immediate practical application or as being hypothetical and so blue sky. If it was conducting its research with a commercial outcome in mind, it is understandable that it made no reference to it in its Annual Reports. Whether it was conducting its research on that basis must be determined in this case by reference to the documents themselves and the oral and written evidence.
154. Part of the evidence comprises the documents to which I have referred above. They show a pattern of research and collaboration with the Macquarie continuing from the inception of PLANs in 1981 until the CSIRO's obtained two patents in 1992 to protect its intellectual property gained as a result of its research. They also show CSIRO's interest in being involved in setting the international standard for WLANs in 1999 and later in 2003. Obtaining the patents and the involvement in setting the international standards both point to the CSIRO's intending to turn its research to its own commercial advantage in some way. The patents protected its intellectual property and there is little point in making the not inconsiderable effort to do so if it is not intended to profit from it or use it for some sort of gain for CSIRO at some stage. Similarly, involvement in setting the international standards is recognised in the Matthews/Frater paper as directed towards creating market opportunities. All of these matters, taken with Dr Cooper's evidence, satisfy me that, at least in the years from 1999 to 2003 and beyond, the CSIRO's activities in relation to the WLAN project were carried on at a time when it might reasonably be expected in the near future, let alone in the foreseeable future, to be carried on in competition with others on a commercial basis. That competition would be with persons other than governments or authorities of governments because, I am satisfied, that the CSIRO had its eye in on the market in the USA.
155. I am concerned, though, with a period beginning in 1991 (the year before the patent was obtained) and extending to 1993 (some six years before the international standards were set in a way consistent with CSIRO's patent). There is no evidence that there was any publication of the CSIRO's research when the eight documents in question were received or were brought into existence and there is no evidence that it took any steps to turn its patent to its commercial advantage by granting licences.
156. In a case such as this, the lack of any monetary return from activities over many years is not necessarily fatal to a claim that those activities might, in those early days, be reasonably expected to be carried on by the CSIRO on the requisite commercial basis. Having regard to written material such as the Matthews/Frater paper detailing the development of the technology as well as Dr Cooper's evidence, I am satisfied that research projects of the type represented by the WLAN project must often be seen as long-term projects. They must be seen in that way because the nature of what they are developing means that they necessarily take a long time to achieve. They must also be seen in that way because they must work with others and draw their work together in a way that takes advantage of the opportunities presented to them by the market.
157. In this case, I am satisfied that those in the CSIRO began their research with the long term aim of achieving a commercial advantage in the market place. They did not begin their research in the hope that the market place would be found when they concluded their work on the WLANs project. Rather, they conducted preliminary market research through a Californian market research company and its own analysis of the potential market. That sort of research is consistent with its stated aim of the CSIRO's wanting to be the market leader in the technology, to gain the market advantage that carried with it and wanting to earn revenue by issuing licensing the technology it developed.
158. As it turned out, a major market opportunity for the CSIRO's technology arose as a result of then Vice President Gore's announcement in the mid 1990s that opened a broad potential market place for relevant technology in the USA. Whether the CSIRO had foreseen that particular opportunity at the outset, I do not know but it is not relevant. The CSIRO had already targeted the USA as a potential market for the technology it was developing. The fact that the market was there and rapidly expanding supports the reasonableness of the CSIRO's earlier decision to undertake its research and position itself to be able to take advantage of it.
159. Having regard to these matters, I am satisfied that, at the time each of the eight documents was received or came into existence, the CSIRO was not carrying on its activities on a commercial basis. Its activities were directed to a particular goal but, at that time, the possibility of their returning a profit or benefit for the CSIRO was just that: a possibility. That possibility was too remote to justify my concluding that the activities undertaken at the time were related to making a return, let alone a profit. Consequently, I am not satisfied that those activities related to, were used for or were intended for a commercial outcome at that stage. Therefore, for the purposes of s 7(3)(a) of the FOI Act, I am not satisfied that the CSIRO was carrying on commercial activities in so far as its work on the WLAN project was concerned.
160. It was, however, reasonably foreseeable at that time that the CSIRO would conduct them on a basis that would see a return to it from the general market place. That does not necessarily mean that it would in fact do so (as proved to be the case) but it was reasonably foreseeable in all the circumstances. Those circumstances included knowledge of the research that had been undertaken regarding the market place for a fast roll-out wireless access to ensure computers' mobility and its potential as well as the CSIRO's own assessment of its potential. The reasonableness of its putting faith in that research and its own assessment was to be underscored in the mid 1990s by then Vice President Gore's announcement regarding computer resources for schools and the consequent immediate growth in demand in the market place. I am satisfied that the CSIRO's activities were commercial activities within the meaning of s 7(3)(b) of the FOI Act.
161. Having regard to the content of each of the eight documents, I am satisfied that each was either received or brought into existence both in the course of and for the purpose of the CSIRO's commercial activities as described in s 7(3)(b). Apart from the second and third aspects of document 1, their subject matter is directly related to one or other of the activities that were directed to its completing the PLANs or WLAN projects and ultimately achieving a commercial outcome. The first part of Document One, for example, is directly related to the CSIRO's participation in the development of the international standard. Documents two and three are directed to modulation issues for the WLAN project and so are related to the research and development aspects of the CSIRO's activities. Documents four to eight are also related to the development aspects of the WLAN project. The second and third aspects of documents 1 are according to their description and to the evidence of Dr Cooper, which I accept, received or came into existence for the purposes of the CSIRO's commercial activities other than the PLANs or WLAN projects. The CSIRO was clearly competing with non-government agencies in relation to those activities. I am satisfied that each of the eight documents comes within the terms of s 7(4).
162. If it were not for the judgment in Australian Broadcasting Corporation v The University of Technology, Sydney, the matter would be at an end. Having come within the terms of s 7(4), the documents would be within the documents described in Part II of Schedule 2 in relation to the CSIRO. That would lead to the conclusion that the CSIRO is exempt from the operation of the FOI Act in relation to those documents. On one view, of Australian Broadcasting Corporation v The University of Technology, Sydney it would also been an end of the matter.
163. If the judgment in Australian Broadcasting Corporation v The University of Technology, Sydney is the applicable law, it can be read as requiring me to take a further step. That is to decide whether the documents can be described as documents in relation to documents in respect of commercial affairs. Applied literally, that means that there must be other documents against which the eight documents can be analysed. None has been tendered in this case. Given the context in which the eight documents were received or brought into existence, it is not unreasonable to infer that there were other documents forming part of the WLAN project to which they related. Documents four to eight, for example, all related, by their very nature, to CSIRO's contract with IBM and that contract must necessarily have been in respect of the WLAN project and in respect of the CSIRO's commercial affairs as understood by s 7(3)(b). The first part of document one was part of a course of activities leading to the production of an international standard. CSIRO was involved in that process and, given that the standard replicated the techniques invented and patented by the CSIRO in the course of its commercial activities as understood by s 7(3)(b), it can be said that the first part of document one has sufficient nexus to be said to be in relation to a document in respect of commercial affairs. Documents two and three are both related to modulation issues in the context of the PLANs project. There is sufficient nexus between those documents and the patent documentation and/or the international standards for them to be said that those documents are in relation to documents in respect of commercial affairs. They may well have a nexus in relation to other documentation but I do not have the detail of that documentation to make a further finding.
164. Part two of document one is in the same category and I make the same finding in relation to it. It was a sub-project of PLANs and the WLAN project. On the basis of the evidence of Dr Cooper, both oral and written, I am satisfied that one of the sub-project was directed to the development of technologies providing high speed wireless communications over the last mile customer access network. It was known as WCAN. Part two of document is concerned with WCAN. Given the purpose of WCAN, there is a nexus between the document relating to WCAN and the other seven documents that I have found to be in respect of PLANs or the WLAN project. It is sufficient for me to find that it is a document in relation to a document in respect of CSIRO's commercial affairs.
165. I do not reach a similar conclusion regarding part three of document 1. Dr Cooper said that the project to which it related had nothing to do with PLANs or the WLAN project. Instead, it was concerned with a proposal to undertake a preliminary investigation of a cordless transducer for use in ultrasonic medical diagnostic equipment. That document was in relation to the ultrasonics programme which was, I accept, a commercial research programme aimed at generating intellectual property and so licensing revenue. It was in competition with private laboratories. On my view of s 7(3), I would be satisfied that part three of document one is a document in respect of commercial activities. On that part of Bennett J's analysis based on CSIRO's being exempt in relation to a document that is in relation to a document in respect of its commercial activities, I would not be satisfied. I would not be satisfied because there is no other document in evidence with which I can find the necessary nexus with it in order to find that it is a document in relation to a document in respect of its commercial activities. As I have said earlier, Bennett J also concluded that program material is encompassed within the description of documents in relation to program material. Therefore, the exemption is not limited to those documents more remotely related to CSIRO's commercial activities it extends to those in respect to those commercial activities. It extends to those in respect of its commercial activities as elaborated by s 7(4). It follows that I am also satisfied that it is a document in respect of CSIRO's commercial activities.
166. As other issues remain to be decided in this case, I:
I certify that the one hundred and sixty six preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
Solicitor for the Applicant Phillips Ormonde & Fitzpatrick
Solicitor for the Respondent Australian Government Solicitor
[2] Documents lodged under s 37(1) of the Administrative Appeals Tribunal Act 1975 (T documents), 3
[5] See extract from CSIRO's Annual Report 1988-89 at 54: Exhibit B, Exhibit MNB-4.
[15] Exhibit B, Exhibit MNB-5 at 1-2, [1.1]
[16] Exhibit B, Exhibit MNB-5 at 1, [1]
[17] Exhibit B, Exhibit MNB-5 at 1-2, [1.1]
[18] Exhibit B, Exhibit MNB-5 at 2-3, [1.1]
[19] Exhibit B, Exhibit MNB-5, Appendix at 16
[20] Exhibit B, Exhibit MNB-5 at 11, [2]
[27] Freedom of Information Amendment Act, s31
[32] Australian Broadcasting Commission v The University of Technology, Sydney [2006] FCA 964; (2006) 154 FCR 209
[34] [1990] HCA 16; (1990) 169 CLR 356; 92 ALR 213 at 376; 228
[36] (2004) 206 ALR 44; 2004 ATC 4,385; at 65-66; 4,403-4,404
[37] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[38] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[39] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[42] (1983) 144 DLR (3d) 193 at 200
[43] [1987] HCA 48; (1987) 164 CLR 513 at 533; [1987] HCA 48; 74 ALR 411 at 423-424
[44] Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; 81 ALR 260 at 653-4; 267
[45] In interpreting the expression "program material" and considering its scope some regard would need to be had to the reference to "library material" in the definition of "document" in s 4(1).
[47] Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978 at 153-154
[48] Senate Hansard, 2 April 1981, 1060
[52] [2006] FCA 964; (2006) 154 FCR 209; (2006) [10]
[53] [2006] FCA 964; (2006) 154 FCR 209; (2006) [13]
[54] [2006] FCA 964; (2006) 154 FCR 209; (2006) [11]
[55] [2006] FCA 964; (2006) 154 FCR 209; (2006) [13]
[56] [2006] FCA 964; (2006) 154 FCR 209; (2006) [16]
[61] [2007] FCA 386; (2007) 94 ALD 586 at 593; [36]
[65] (1988) 88 ALR 217 at 259-260
[69] [1964] HCA 11; (1964) 110 CLR 129 at 136
[70] [2007] FCA 386; (2007) 94 ALD 586 at 596; [41]
[72] [2000] AATA 1161 including transcript of draft decision dated 8 December 2000 adopted as decision at 2.
[73] (2004) 84 ALD 132; [2004] AATA 833
[76] [2004] AATA 1097; (2004) 87 ALD 204 at 210
[77] [2004] AATA 1097; (2004) 87 ALD 204 at 211
[78] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[82] (1986) 7 NSWLR 503 at 524
[84] [1979] HCA 48; (1979) 26 ALR 507 at 514-515
[86] [1991] FCA 206; (1991) 29 FCR 376; 101 ALR 329 at 385; 339
[88] [1979] FCA 29; (1979) 26 ALR 307; 37 FLR 310 at 311; 314
[89] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[90] [2004] AATA 1097; (2004) 87 ALD 204; 87 ALD 204 at 211; 209; [52]
[92] [1984] FCA 98; (1984) 53 ALR 373 at 381
[97] Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 877
[98] (1984) 1 FCR 64; (1984) 57 ALR 277
[99] (1984) 1 FCR 64; (1984) 57 ALR 277 at 66; 279 per Bowen CJ and Fisher J
[101] [2006] AATA 722 at [36]- [40]
[103] [1991] FCA 152; (1991) 13 AAR 261; 100 ALR 111; at 270; 121
[105] [2001] FCA 1375; (2001) 34 AAR 10 at 17-18
[107] Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd [2004] VSC 262; (2004) 185 FLR 48
[109] [1983] 1 AC 244 at 263
[110] [1983] 1 AC 244 at 262
[112] (1992) 91 DLR (4th) 449 at 463, L'Hevreux Dube and Gonthier JJ concurring
[113] (1992) 91 DLR (4th) 449 at 463 quoted at [2004] VSC 262; (2004) 185 FLR 48 at 64
[114] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[116] [1979] FCA 81; (1979) 39 FLR 199 at 224
[120] (1986) 64 ALR 97 at 106
[121] (1986) 64 ALR 97 at 112
[125] (1985) 8 ALD 528 at 534
[127] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[128] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[129] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[130] Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342 at 345
[131] Re Flynn and Department of Aviation (1984) 6 ALN N158
[133] [2004] FCA 843; (2004) 138 FCR 428 at 436-437
[135] [1988] FCA 294; (1988) 19 FCR 342 at 344-345
[137] [1992] FCA 599; (1992) 39 FCR 225 at 234
[139] [1991] FCA 596; (1991) 26 ALD 203 at 205
[140] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Adamson v West Perth Football Club (Incorporated) [1979] FCA 81; (1979) 39 FLR 199
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428
Australian Broadcasting Commission v The University of Technology, Sydney. [2006] FCA 964; (2006) 154 FCR 209
Australian Postal Corporation v Johnston [2007] FCA 386; (2007) 94 ALD 586
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 13 AAR 261; 100 ALR 111
Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in Liq) [1948] HCA 14; (1948) 76 CLR 463
Ferguson v Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; 37 FLR 310
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Goodman Fielder Wattie Ltd v Commissioner of Taxation [1991] FCA 206; (1991) 29 FCR 376; 101 ALR 329
Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373
New South Wales v Bujdoso [2007] NSWCA 44
News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88
NSI Dental Pty Ltd v University of Melbourne [2006] FCA 1216
O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356; 92 ALR 213
Re Delgarde Legal Services Pty Ltd and CSIRO [2006] AATA 722
Re Johnsons Creek Conservation Committee v Commonwealth Scientific and Industrial Research Organisation [2000] AATA 1161
Re Johnston and Australian Postal Corporation [2006] AATA 144
Re Papps and Australian Postal Corporation (2004) 84 ALD 132; [2004] AATA 833
Re Pye and Australian Postal Corporation (2004) 87 ALD 204; [2004] AATA 1097
Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd [2001] FCA 1375; (2001) 34 AAR 10
Securities Commission v Bank Leumi Le-Israel (Switzerland) [1996] FCA 1789; (1996) 69 FCR 531; 139 ALR 527
Smith v Capewell [1979] HCA 48; (1979) 26 ALR 507
Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513; 74 ALR 411
Surinakova v Minister for Immigration and Ethnic Affairs: [1991] FCA 596; 1991) 26 ALD 203
Taylor v White [1964] HCA 11; (1964) 110 CLR 129
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225
Victoria Aircraft Leasing Ltd v United States and Others [2005] VSCA 76; (2005) 190 FLR 351; 218 ALR 640
Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd [2004] VSC 262; (2004) 185 FLR 48
(1964) 110 CLR 129
(1992) 39 FCR 225
(2005) 190 FLR 351
(2004) 185 FLR 48
(1979) 39 FLR 199
(2004) 138 FCR 428
(1986) 64 ALR 97
(2006) 154 FCR 209
(1948) 76 CLR 463
(1979) 26 ALR 307
(1988) 19 FCR 342
(1986) 7 NSWLR 503
(1991) 29 FCR 376
(1984) 53 ALR 373
(2004) 206 ALR 44
(1984) 1 FCR 64
(1984) 57 ALR 277
(1984) 5 FCR 88
(1990) 169 CLR 356
(1988) 88 ALR 217
(1992) 108 ALR 163
(1996) 69 FCR 531
(1979) 26 ALR 507
(1987) 164 CLR 513
(1988) 165 CLR 642
(1989) 167 CLR 45
(2005) 144 FCR 334
(1956) 94 CLR 182
(1933) 50 CLR 268
(1978) 21 ALR 585
(1970) 123 CLR 153
(1985) 62 ALR 321