In the the four years to September 15, 2004, the ABC received 1408 complaints about its Middle East coverage. The Federal Court allows you to know that. But the court says you can't know who made the complaints, what they said, and how the ABC responded. So next time you hear the ABC board, or its new managing director, Mark Scott, prattling on about the need for openness and transparency, or the public's right to know, just remember that's what the ABC believes is good for others, not for itself.
It's different at SBS. When journalist Antony Loewenstein submitted a freedom of information request to see complaints about its coverage of the Middle East, SBS handed them over. As he wrote in his book, Loewenstein discovered the complaints were overwhelmingly from just one person, Colin Rubenstein of the the Australia/Israel and Jewish Affairs Council. But when students from the Australian Centre for Independent Journalism (ACIJ) at the University of Technology, Sydney, submitted their FOI request to the ABC, the ABC pulled down the shutters and claimed the material was exempt, relying on an unusual argument.
The FOI Act lists agencies with certain classes of documents that are exempt, particularly those commercially sensitive. The ABC is on the list with a special exemption for documents "in relation to its program material and its datacasting content". You'd think the idea behind this was to protect from release the ABC's intellectual property in material like films or radio programs. But the ABC said this phrase meant anything connected to a program, including the complaints about it and the records of how the complaints were handled.
The students appealed and the Administrative Appeals Tribunal agreed the exemption was meant to only protect intellectual property. It ordered the documents be released. But the ABC did not comply. It briefed senior counsel and went to the Federal Court. For reasons that are far from clear, UTS's counsel, Margaret Allars, argued the exemption was so narrow it only included tapes and recordings of program material - it didn't even exempt ABC scripts from release. Justice Bennett rejected this narrow interpretation and went instead with the ABC's argument that the exemption was very broad.
The head of the ACIJ, Chris Nash, was appalled at the likely consequences of this decision: "As a result of the judgement, the ABC has been effectively removed from FOI, " he said. "We believe it was appellable but the university, for its own reasons, decided not to."
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