THE PURPOSE AND SCOPE OF SS 140A AND 205F
26 The grant of the licence is a privilege to use the public resource of the radio spectrum. Abuse of the privilege, by breaching a condition of a licence, attracts liability under ss 139(3) and 140A(3). The primary purpose of s 140A(3) is to protect the public by holding licensees to the standard of conduct that their licence requires them to observe. The disclosure standard addresses a particular, and insidious, means of abusing the privilege of a commercial radio broadcasting licence. That standard recognised the significant degree of influence current affairs presenters could exert in shaping community views in Australia (see s 4(1)). The more prominent the presenter, the greater the potential he or she has to exert influence in shaping community views.
27 The spoken word is the vehicle used to shape views on radio current affairs programs. The identity of the speaker, if known to the audience, can itself influence their receptivity to what he or she says; as can the speaker's oratorical style and manner of delivery. And, because of its orality, publication in a radio broadcast conveys a transient message. The listener may tune in or turn on the radio part way through a program; he or she may have missed an earlier disclosure announcement by the presenter when he or she returns to a topic that attracts an obligation to make such an announcement. If it is not made, that new listener will not be aware of what the disclosure standard, and the licence, require be conveyed contemporaneously, namely the presenter's sponsorship. Additionally, listeners may not always be attentive to what is being broadcast on radio and may miss the significance, or indeed the occurrence, of an earlier disclosure statement in the same program. That can affect the meaning which the listener understands to have been conveyed by what he or she hears the presenter saying later. These characteristics of transient communications, such as radio or television broadcasts, are also recognised in the common law principles of defamation: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165G-166E per Hunt CJ at CL, Mason P and Handley JA agreeing.
28 Thus, the transience both of what is spoken on-air during a radio broadcast and of the listening audience (who may tune in or out at any time and, when tuned in, may pay closer or lesser degrees of attention) underlie the policy behind the disclosure standard's insistence on the presenter making a disclosure announcement contemporaneously each time one of his or her sponsor's name, products or service is mentioned.
29 The liability in s 140A(3) corresponds to, but is distinct from the criminal liability imposed by s 139(3). The conduct proscribed by each section is the same, namely a breach of a condition of a licence set out in cl 8(1) of Sch 2, including a breach of the disclosure standard. But the objects of the two sections are not the same. One object of s 140A(3) is to create a civil, not criminal, liability so as to enable the Authority to secure compliance with important provisions in the Act more readily than through criminal proceedings. But another object of the section is to reinforce the norm of conduct for licensees in s 139(3) and to provide a means to enforce their compliance with it less drastic than the remedies existing before 2006.
30 The Parliament provided that the civil penalty could match the criminal penalty for the same conduct of a commercial radio broadcasting licensee in breaching a condition of its licence. However, the imposition of a civil penalty under s 140A(3) would not carry the stigma attached to a criminal conviction under s 139(3). And, pursuant to s 205K of the Act the civil penalty could be imposed after a trial using the civil onus of proof (see too s 140 of the Evidence Act 1995 (Cth)): see too Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 477-482 [19]-[38] per Weinberg, Bennett and Rares JJ.
31 A primary purpose of civil penalties is deterrence: Trade Practices Commission v CSR Limited (1991) ATPR ¶41-076 at 52,152 per French J. Hence, in assessing the penalty to be imposed, a court will consider whether, in all the circumstances relevant to be taken into account (here under s 205F(3)), others would be deterred by the penalty and at the same time the licensee will be penalised or punished appropriately. The range of relevant matters under s 205F(3) ordinarily will include (borrowing from what French J suggested in CSR (1991) ATPR ¶41-076 at 52,152-52,153):
· the deliberateness of the contravention;
· whether the contravention occurred or arose out of the conduct of senior management or at a lower level;
· whether the licensee has a corporate culture conducive to compliance with the Act and standards as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention;
· whether the licensee has shown a disposition to co-operate with the Authority in discharge of its regulatory role under the Act.
32 The parties urged that no difference in approach to fixing an agreed civil penalty was called for under the Act as compared to the approach taken under legislation such as under s 76 of the Trade Practices Act 1974 (Cth) and s 42Y of the Therapeutic Goods Act 1989 (Cth). They relied on what Flick J had said in Secretary, Department of Health and Aging v Pagasa Australia Pty Ltd [2008] FCA 1545 at [17], [23]-[25]. He helpfully reviewed a large number of cases imposing civil penalties arising under a number of Acts: Pagasa [2008] FCA 1545 at [23]-[27], concluding at [27]:
"Although the form of words set forth in other legislative provisions may be the same or comparable to those employed in the 1989 Act, the legislative mandate that the Court "must have regard to all relevant matters" in s 42Y(3) assumes obvious importance. It is that mandate which directs attention to those more specific matters which can only be discerned from an analysis of the 1989 Act itself. Of central importance in identifying those matters which are "relevant" - and which must therefore be taken into account - are the objects and purposes of the 1989 Act."
33 I agree with Flick J's approach to the construction of provisions like s 205F(3) of the Act. French J remarked in CSR (1991) ATPR ¶41-076 at 52,152 the other general objects of the criminal law apart from deterrence, namely retribution and rehabilitation, had no "… part to play in economic regulation of the kind contemplated by Pt IV" of the Trade Practices Act.
34 However, I am of opinion that other considerations arise under the Broadcasting Services Act. The purpose of regulation under the Act, including the imposition of civil penalties for contraventions of s 140A(3) under s 205F, must be gleaned from the detail of the provisions of the Act.
35 The common law recognises that its remedy of damages for tort includes, in addition to deterrence, punishment and condemnation of both the actual wrongdoer's behaviour and the behaviour of another for whose conduct the defendant is answerable. Those objects are, therefore, not exclusively a function of the criminal law.
36 In Lamb v Cotogno (1987) 164 CLR 1 at 8 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ cited with approval Pratt LCJ's explanation in Wilkes v Wood (1763) Lofft 1 at 19 [98 ER 489 at 498-499] that exemplary damages are awarded "as a punishment to the guilty, to deter from any such proceeding for the future and as a proof of the detestation of the jury to the action itself". The Court held in Lamb 164 CLR at 8-11 that the objects of an award of exemplary or punitive damages include:
· punishment of a defendant;
· deterrence of that defendant and others; and
· marking the Court's condemnation of the defendant's behaviour.
37 The fact that a defendant who is covered by compulsory third party motor vehicle insurance and so will not pay the sum awarded as exemplary damages from his, her or its own pocket, or that the defendant is the insurer, does not restrict the power of the court to award exemplary damages: Lamb 164 CLR at 11; Gray v Motor Accident Commission (1998) 196 CLR 1 at 12-13 [32]-[36] per Gleeson CJ, McHugh, Gummow and Hayne JJ, 29 [87] per Kirby J, 50 [141] per Callinan J.
38 And, in New South Wales v Ibbett (2006) 229 CLR 638 at 648 [38] Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ observed:
"The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society."
39 When the Parliament adopted the well recognised device of a civil penalty as a remedy for contraventions of the Act, it did not exclude, expressly or by necessary implication, the Court from having regard to objects that are not exclusively criminal such as punishment or condemnation, in addition to deterrence: see too CEPU 162 FCR at 477-479 [19]-[28]. In Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 146 [35] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said that classification of proceedings as protective or penal wrongly assumed that those two objects were mutually exclusive. They held that a law may bear several characters, as may proceedings that seek relief which, if granted, would protect the public and penalise the defendant.
40 Talk back radio and current affairs programs of the kind that Mr Laws had, occupy a significant place in commercial radio broadcasting. Presenters of such programs can exert considerable influence in shaping community views.
41 In Victoria v Australian Building Construction Employees' and Builders Labourers' Union (1982) 152 CLR 25 at 98 as Mason J spoke of "… the overriding importance of freedom of discussion and speech", adding "without information, there can be no meaningful discussion": see too Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 139-140 per Mason CJ. It is now established that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is the correlative of the interest in receiving it: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The media fulfil a vital role in the ability of the Australian community and, in particular, electors to engage in the discussion of government and political matters, and ss 3 and 4(1) of the Act, in part, recognise this.
42 The disclosure standard was a key instrument to ensure transparency in current affairs radio broadcasting. Failures to disclose could violate the public's ability to trust in the quality and nature of information conveyed in programs such as Mr Laws'. Unlike the regulation of economic behaviours provided in Pt IV of the Trade Practices Act, the Act creates the right to hold a licence but regulates the licensee's exploitation of that right for its own benefit, by imposing limitations crafted in, and to secure, the public interest. A commercial radio broadcasting licence confers an economic privilege on a licensee exercisable in accordance with the Act, standards and the conditions of the licence. These important and distinct features of the Act were recognised in the extracts I have quoted from Mr Chapman's media release.
43 For these reasons, I am of opinion that it is relevant to include, in the amount of a pecuniary penalty fixed under s 205F, in an appropriate case, some element of punishment of or retribution against, or stigmatisation of, a licensee which, in the course of conducting its business using the licence for its own profit, contravenes an important condition of the licence or the Act. The contravention of s 140A(3) by a failure to comply with the disclosure standard can amount to a violation of the public trust reposed in a licensee. As Mr Chapman tellingly said, the obligation to comply with that standard "… goes to the heart of the licensee's obligations".
44 Just as there is no single, correct sentence, so too there is no single, correct amount of a pecuniary penalty: cp Markarian v The Queen (2005) 228 CLR 357 at 371 [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ. In arriving at an appropriate penalty, a court must give careful attention to the maximum provided for in the Act. The maximum invites comparison between the worst possible case and the case before the Court. And the maximum can provide a yardstick when balanced with the other relevant factors: Markarian 228 CLR at 372 [30]-[31].
45 In this respect, ordinarily the worst possible case for a civil penalty would not be equivalent to the worst possible case for a criminal penalty under the corresponding section in the Act. That is because, first, the purpose of the Parliament providing for the civil penalty was to enable the Authority to use that power to address conduct not warranting the use of the corresponding criminal provision or the suspension or cancellation of a licence. Secondly, if a person has been convicted of an offence (e.g. under s 139(3)) constituted by substantially the same conduct as attracts a civil penalty (e.g. under s 140A(3)) then s 205L prohibits the Court making a civil penalty order against that person. And, s 205M stays civil penalty proceedings if criminal proceedings have been or are later commenced in respect of substantially the same conduct. If the person is convicted, then s 205M(2) provides for the civil penalty proceedings to be dismissed, but the stay is lifted if the person is acquitted. Conversely, s 205N authorises criminal proceedings to be commenced in the opposite situation; i.e. after a civil penalty order has been made. This preserves the option of later prosecution where, for example further evidence has come to light showing that a more severe penalty is called for than that in the civil penalty order.
46 There is a prosecutorial discretion to bring criminal proceedings under s 205N. Ordinarily, some enlivening factor must arise after the conclusion of the civil penalty order proceedings to warrant the initiation of the criminal proceedings so that they would not be seen as an abuse of process in light of the policy in ss 205L and 205M (e.g. if facts subsequently were discovered, casting a different light on an apparently middle range contravention for which a civil penalty was appropriate, prosecution might be warranted).
47 Where ss 205L or 205M apply, the apparent intention of the Parliament, was to exclude the use of the civil penalty order if criminal proceedings result in conviction. This is because the stamp or, possibility, of the conviction has characterised the contravention (even if only temporarily so, pending the determination of the criminal proceedings) as of a more serious kind. No doubt the civil penalty imposed would be relevant to the criminal penalty following conviction, where s 205N applies. But, s 205N must be read harmoniously with the legislative policy reflected in ss 205L and 205M: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ.