Consideration
22 Although a statement of agreed facts pursuant to s 191 of the Evidence Act and a form of orders that have been agreed between the parties have been provided to the Court, I must still be satisfied that the relevant contravention has been established: s 39(2) ('If the Federal Court is satisfied that the person has breached a term of the undertaking…').
23 Has the relevant contravention been established? It should be noted that s 39(2) does not require me to be to be satisfied that JER has contravened the requirements of ss 17 and 18 of the Act. I need only be satisfied that JER has breached a term of the undertaking. Given that the time for providing the first three reports has come and gone and given that the parties have agreed that no reports have been provided, I am so satisfied.
24 Since I am satisfied that the undertaking has not been complied with, ACMA is entitled by s 39(2)(a) to orders directing JER to comply with the term of the undertaking that has been breached.
25 Many of the time requirements of the original undertaking have now passed and, as a matter of strictness, may no longer be enforced. As noted above at [21], JER has been granted some leniency beyond the 10 days contemplated by cl 5.2.3 (set out above at [16]). Some of the orders sought are not, therefore, orders directing JER to comply with cl 5.2.3 and are not, consequently, orders which may be made under s 39(2)(a) (which is how the parties have described them).
26 Another issue with the proposed orders is that they purport to direct compliance with cl 5.2.3 of the undertaking. As can be seen above at [16], cl 5.2.3 is not a provision with which it is possible to comply. Instead, it merely imposes a time limit on the substantive obligation in cl 5.2.2. I do not see how, when many of the time limits have been changed, this proposed order can be viewed as an enforcement of the original time limit. In reality, the proposed orders seek to enforce cl 5.2.2 in relation to the past and to modify the timetable for its operation into the future.
27 The proposed orders are, therefore, orders neither pursuant to s 39(2)(a) nor, as the parties have formulated them, orders enforcing cl 5.2.3.
28 It is possible, however, to achieve the end sought by the parties. Section 39(2)(d) confers a power to make 'any other order that the Court considers appropriate'. In that context, it is relevant to observe that: (a) JER has, to this point, failed completely to comply with the reporting requirements of the undertaking; and, (b) has consented to being ordered to comply with the future reporting requirements. An order under s 39(2)(d) to enforce cl 5.2.2 within some time limit is, therefore, warranted.
29 I am, therefore, satisfied that the orders are appropriate, so long as the reference to 'section 39(2)(a)' is amended to read 'section 39(2)(d)' and 'clause 5.2.3' is amended to read 'clause 5.2.2'.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.