Dear Australian Broadcasting Corporation,

Under FOI I seek access to a copy of the defence document lodged in the Federal Court by the ABC in the matter of Porter v ABC ( NSD 206/2021). I limit the scope to Schedules 1 to 3 of the document (Pages 10 to 36) given that pages 1 to 9 and 37 are available to the public on the Federal Court website. I understand the legal action by Mr Porter against the ABC has been discontinued.

The document sought is not program material for the purposes of the FOI Act. The document was created by the ABC in response to a claim made by Mr Porter in the Federal against the ABC. Had Mr Porter not instituted legal action the document sought would not exist.

Decisions of the Federal Court concerning the documents on the Court file do not impinge on the provisions of the FOI Act and a right to access by the public to documents

Yours faithfully,

JS

Dear FOI ABC,

Thank you for your decision. I did not know the Court had stayed the revocation of the interim non-publication and suppression orders. I agree the document is exempt by virtue of section 46(a) and will remain so pending the revocation of the interim orders.
Given the document was exempt at the time of application for access I will not being seeking a review.

As to the order:
The New South Wales District Registrar cause a copy of the unredacted defence filed 4 May 2021 and the unredacted reply filed 4 May 2021 to be placed into an envelope marked “NSD206/2021 Charles Christian Porter v Australian Broadcasting Corporation and Anor, Unredacted Defence and Unredacted Reply, removed from the Court file pursuant to orders made on 30 July 2021. Not to be opened or made available for inspection by the public other than by leave of the Court.

FOI Act section 46 Documents disclosure of which would be contempt of Parliament or contempt of court
A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown:
(a) be in contempt of court;
(b) be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; or……….

You say that section 46(b) includes orders made by a Court. The section does not refer directly to a court but to a Royal Commission, a tribunal or other person or body having power to take evidence on oath. Person or bodies having power to take evidence on oath include for example the ABCC and ASIC and many other agencies.

If your view that section 46(b) encompasses the courts (i.e High Court, Federal Court, State Courts etc) is incorrect then the document would not be exempt under the section. A potential issue for another day.

Yours sincerely,

JS