Case: Keane v Australian Broadcasting Corporation (Unreported, Administrative Appeals Tribunal, 27 May 2004, W93/182 AAT No. 9583)
Outcome: considered
UTS ultimately adopted a position that the exemption is only for program material where program material means the recordings and tapes, the "sights and sounds" that are broadcast by television or radio. The difficulty with this position was illustrated when UTS accepted, during the course of submissions, that the following either were, or could be, program material: &#8226; films or tapes which have or have not been broadcast; &#8226; draft tapes and draft films; &#8226; material which is ' part of the production process for the film or the tape recording '; &#8226; the development proposal and six treatments found to be ' documents relating to program material ' and therefore exempt in the Tribunal's earlier decision in Keane v Australian Broadcasting Corporation at [7] (Unreported, Administrative Appeals Tribunal, 27 May 2004, W93/182 AAT No. 9583); &#8226; scripts; and &#8226; technical directions given by a director for the lighting on a particular program. 21 Both parties rely on the reasoning in Keane which has not been the subject of relevant further comment by a Court or the Tribunal. 22 The Tribunal expressed doubt about the approach in Keane where "program" and "material" were defined separately. It considered "program material" to be a composite term but did not explain what that composite term encompassed. UTS supported that construction. The Tribunal did accept, however, the reasoning in Keane that the Schedule is not limited to program material and held that it encompassed documents relating to program material in that it extended the exemption to ' matters such as the intellectual property of [the ABC] in a program ' (at [32]). No basis for this conclusion was given, nor was an attempt made to explain what criteria were applied. To the extent that this formed part of the reasons of the Tribunal, neither party has supported such a limitation and there is no basis for it. The Tribunal stated that it did not ' see an exemption "in relation to program material" as extending as far as a complaint regarding material in a program and the treatment given to that complaint by [the ABC]' (at [33]) and categorised all of the documents sought in that category. 23 The Tribunal in Keane considered dictionary definitions of "program" and "material". Relevantly, the Macquarie Dictionary defines "program" when used in radio and television as ' a particular item or production '; the Shorter Oxford Dictionary defines program(me) when used in broadcasting as '[a] broadcast presentation treated as a single item for scheduling purposes, being broadcast between stated times and without interruption except perhaps for news bulletins or advertisements '. 24 The meaning of "material" in the Macquarie Dictionary encompasses different concepts, including: ' the substance or substances of which a thing is made or composed '; ' any constituent element of a thing '; ' anything serving as crude or raw matter for working upon or developing '; and ' information, ideas, or the like on which a report, thesis, etc, is based '. In the Shorter Oxford Dictionary , it means relevantly '[o] f or pertaining to matter or substance '; '[f] orming the material or substance of a thing ' ; '[ t ] he matter of which a thing is or may be made ' ; and also '[i] nformation, evidence, ideas, etc, for use in writing a book or script, drawing a conclusion, etc '. 25 The Tribunal in Keane found that documents which ' constitute vital steps in the production of a television production program ' and ' make up important elements in that process ' are within the exemption, that is not only is program material exempted but also documents relating to program material (at [7]). It drew a distinction between such documents and a letter which related to a change in script writers which was not exempt. 26 UTS submits that, in effect, the exemption is limited by the meaning of "program material" and that this extends only to the sights and sounds. The ABC made no submission as to the meaning of "program material", other than that it ought not be limited to documents created before a program is broadcast. I do not accept that program material is restricted to films or tapes themselves. In my opinion, it extends at least to the content of the films and tapes. It has not been disputed that the documents sought relate to the content of ABC programs. Accordingly, it is not necessary for me to determine the breadth of the application of "program material". 27 UTS sought to rely on extrinsic material to assist in determining the meaning of "program material" and "in relation to program material". The Senate Standing Committee on Constitutional and Legal Affairs, in its Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (Parliamentary Paper No 272/1979) ('the Report')) noted that the Bill, expressed to be concerned with freedom of information, refers generally not to information but to documents.