3.3 Did ACMA have to consider ANIC as a potential competing licensee?
57 ANIC contended that in deciding whether to renew MCR's licence under s 91 of the Broadcasting Services Act, ACMA was bound to consider whether ANIC could provide a superior community broadcasting service to that provided and proposed to be provided by MCR.
58 In support of this contention ANIC said:
(1) under s 91(2A) ACMA may refuse to renew a community broadcasting licence "if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee";
(2) this means that in deciding whether or not renew a licence, ACMA must act as if it were deciding to allocate the licence;
(3) in deciding to allocate a licence, ACMA is bound by s 84(2) which says that in "deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ACMA is to have regard to" the matters specified in (a)-(f), which include "(d) the capacity of the applicant to provide the proposed service or services";
(4) the fact that the 2002 Act changed the requirement in s 91(1) that ACMA "must" renew a licence, to ACMA "may" renew a licence, reflects the intention that at least every five years (the maximum licence period) ACMA is to consider the renewal by reference to the same considerations that apply to a decision to allocate a licence (including whether there is a person who may provide a superior service to the licensee seeking renewal);
(5) the change effected by the 2002 Act reflects a changed legislative intention for five yearly scrutiny of the licence, in contrast to the legislative intention underlying the original form of s 91(1) which was that community broadcasting licences be allocated on a "long-term" basis: see the Explanatory Memorandum to the Communications Legislation Amendment Bill (No 1) 1997 (Cth) at pp 2-3;
(6) s 5(1)(b)(i) (referring to ACMA exercising its functions and powers in a manner that, in the opinion of ACMA, will produce regulatory arrangements that are stable and predictable) does not authorise ACMA to depart from the requirements of s 91(2A) and, thereby, s 84(2); and
(7) as Flick J said in ANIC 2021 at [18], ACMA's contrary proposition:
comes tantalisingly close to - or is at least, the very start of a progression towards - a proposition that competition between service providers largely comes to an end after a broadcasting licence is first granted. The residual concern is that such provisions do not necessarily exclude a conclusion that a licence should not be renewed because a limited resource such a[s] broadcasting frequencies can be better utilised. So much, it may have been thought, promoted efficiency. Upon greater consideration of the submissions, which time does not presently permit, that may do a considerable disservice to the positon of the Media Authority. Nor does it sit well with a more generally expressed concern that the statutory regime does in fact contemplate a renewal process after a five year licence period expires.
Justice Flick concluded that this construction issue raised a serious question to be tried ([19]).
59 I consider that ANIC's submissions involve a misconstruction of the statutory scheme.
60 The observations of Flick J in ANIC 2021 involve no more than a recognition that issues of statutory construction are contestable. His Honour was dealing with an interlocutory application on an urgent basis. His conclusion that the construction issue raised a serious question to be tried cannot be gainsaid. But it does not weigh in the determination of the construction issue.
61 I consider that, properly construed, the Broadcasting Services Act permits but does not require ACMA to consider if another person might provide a superior service to the incumbent licensee in the course of deciding whether or not to renew a licence. This flexibility also accords with the objects of the Act in s 3(1) and the terms in which the legislature has defined ACMA's role in ss 4(1)-(2) and 5(1)-(2) which emphasise that it is the opinion of ACMA which is determinative, and the objects of enabling "public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services" (s 4(2)(a)) and produces "regulatory arrangements that are stable and predictable" (s 5(1)(b)(i)).
62 The precise terms of s 91(2A) are critical. The section says that ACMA "may refuse to renew a community broadcasting licence" of the relevant kind "if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee".
63 There are three key explanatory components to this statutory direction.
64 The first is that the context is not the allocation of a licence at large which is relevant to ACMA's decision to renew a licence or not. The direction in the relevant decision-making context is "if it were deciding whether to allocate the licence to the licensee" (emphasis added). This may be contrasted with s 84(2) which refers to ACMA "deciding whether to allocate a community broadcasting licence … to an applicant or to one of a group of applicants" (emphasis added). The critical difference is that in a renewal decision, ACMA's focus must be the hypothetical proposition that it is deciding whether to allocate the licence "to the licensee", whereas in an allocation decision, ACMA is deciding whether to allocate a licence to an applicant or one of a group of applicants. Of itself, this is sufficient to defeat ANIC's contention that ACMA is bound to consider whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee in the context of deciding a renewal application. ACMA cannot be so bound in the face of the statutory direction in s 91(2A) to focus on an allocation to a licensee.
65 This first difference is not accidental. It reflects a second explanatory component of s 91(2A). This second explanatory component is that s 91(2A) also directs ACMA that it may refuse to renew a community broadcasting licence if "having regard to the matters in paragraphs 84(2)(a) to (f), it considers…" (etc). That is, in terms, s 91(2A) does not direct ACMA to apply the preamble to s 84(2) (in "deciding whether to allocate a community broadcasting licence …to an applicant or to one of a group of applicants"). It directs ACMA to have regard to the matters in s 84(2)(a)-(f). Taken together with the words "whether to allocate the licence to the licensee" at the end of s 91(2A), it is clear that ACMA must have regard to the matters in s 84(2)(a)-(f) in respect of the licensee alone, not in respect of other potential or would-be licensees. Again, of itself, this is sufficient to defeat ANIC's contention that ACMA is bound to consider whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee in the context of deciding a renewal application.
66 The third explanatory component of s 91(2A) is that it does not require ACMA to have regard to the matters in s 84(2)(a)-(f) in deciding whether or not to renew a community broadcasting licence. It provides that ACMA may refuse to renew a community broadcasting licence if, having regard to the matters in s 84(2)(a)-(f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee. This indicates that ACMA's power of refusal is conditioned on the consideration of the s 84(2)(a)-(f) matters. In contrast, ACMA's power to grant a renewal is not conditioned on the consideration of the s 84(2)(a)-(f) matters.
67 ANIC stressed that a decision to renew a licence is also a decision not to refuse a licence, so that there is a single discretion encompassed by ss 91(1) and (2A). This submission does not accord with the text or context of s 91. It may be accepted that it is common-place to understand a decision to grant or not to grant a right as a single decision. But the structure and text of s 91 do not reflect this approach. No doubt reflecting the legislative history (that previously the licence had to be renewed unless ACMA decided s 83(2) applied), s 91(2A), in structure and terms, is a discretion to refuse to grant a licence in the specified circumstances. That discretion is not engaged if ACMA is not exercising that discretion. That is, if it is not refusing the renewal application under s 91(2A), ACMA may renew the licence under s 91(1). In so doing, the only mandatory relevant considerations are those implied from the subject matter, scope and purpose of the Broadcasting Services Act: Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40. Given the terms of s 91(2A) (as discussed above), there cannot be implied any obligation to consider the position of a potentially competing licensee under s 91(1) on a renewal application.
68 These conclusions are reinforced by the terms of the Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No 2) 2002 (Cth) which says at pp 3-4 that the amendments are "to improve licensing arrangements for community broadcasting generally" and the main changes are (emphasis added):
…
to provide the Australian Broadcasting Authority (ABA) [predecessor to ACMA] with more discretion to review community broadcasting licences when deciding whether to renew them by:
- allowing the ABA to take into account on renewal the same matters that it has regard to in deciding whether to allocate a licence (items 4 and 5 of Schedule 2).
69 Further, at p 15 the Explanatory Memorandum to the 2002 Act explains that (emphasis added):
Items 4 and 5 amend section 91 of the BSA [Broadcasting Services Act] to allow the ABA to take into account on renewal the same matters that it has regard to under subsection 84(2) in deciding whether to allocate a licence (see in particular new subsection 91(2A)).
The amendments thus allow the ABA to refuse to renew a licence where the applicant no longer meets the criteria set out in subsection 84(2). For example, the ABA may refuse to renew a licence where the licensee no longer has the capacity to provide the service (paragraph 84(2)(c)).
It will not be mandatory for the ABA to give detailed consideration to every licence renewal application against the criteria in subsection 84(2). Rather, the ABA will have a discretion as to whether it conducts a renewal inquiry, and as to the matters it considers in any inquiry. For most community licence renewals, it is expected that the ABA will not have received substantial complaints about the service and will not consider it necessary to have regard to the matters in paragraphs 84(2)(a) to (f).
…
70 Accordingly, the Explanatory Memorandum to the 2002 Act directly addresses the issue of statutory construction and is irreconcilable with ANIC's contentions in this regard.
71 I also accept the submissions for ACMA to the effect that had Parliament intended for the renewal process to be competitive, or to incorporate mandatory consideration of competing applications (or potential applications), then it could have made that requirement clear.
72 Further, as ACMA said, s 91 does not require that on receipt of a renewal application, ACMA must open up the process so that competing licensees can apply to be granted the licence instead of the licence being renewed. If the existence of competing or superior licensees were a mandatory consideration, then some mandatory process to elicit such submissions would be the only practical and fair means by which the ACMA could ensure its decisions were made properly. However, there is no such mandatory process. The requirement for publication of the renewal application in the Gazette under s 90(2) is not such a process. That requirement is for publication of the fact that a renewal application has been made. Publication of the fact that an application for renewal has been made is not well-adapted to the eliciting of proposals for a new allocation to a third party.
73 It is also relevant that while the radio bandwidth is a finite resource, it is not reserved for particular community sectors. As ACMA submitted, while the community interest identified on MCR's licence is "Religious - Islamic", competing would-be applicants for a community broadcasting service could be expected to represent different community interests, including, potentially, other religious and non-religious community sectors. If the Broadcasting Services Act requires (as opposes to permits) such a process on a renewal application, it would have the practical effect of forcing a licence holder to defend its licence from all potential future applicants, representing any number of community interest groups. I agree with ACMA that such a requirement is potentially inconsistent with s 4(2)(a) of the Broadcasting Services Act which provides that Parliament intends broadcasting services to be regulated in a manner that, in the opinion of the ACMA, "enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services", as well as s 5(1)(b)(i) which requires ACMA to use its functions to "produce regulatory arrangements that are stable and predictable".
74 Community Television Sydney Limited v Australian Broadcasting Authority [2004] FCA 443; (2004) 136 FCR 316 is not authority to the contrary. That case concerned an allocation decision in respect of which s 84(2) provides that, in deciding whether to allocate a community broadcasting licence to an applicant or to one of a group of applicants, ACMA is to have regard to the matters in s 84(2)(a)-(f). As noted, s 91(2A) is in different terms ("if it were deciding whether to allocate the licence to the licensee") and does not include reference to the preamble to s 84(2).
75 The statement by Sackville J in Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2007] FCA 2053 at [19] that "ACMA provided detailed written reasons for its decision. It made findings of fact under various headings, some of which correspond to the relevant sub-paragraphs of s 84(2) of the BS Act (these being matters ACMA was compelled to take into account by s 91(2A))" is obiter dicta. This follows from the fact that the grounds of judicial review in that case were denial of procedural fairness and legal unreasonableness: [3]. I do not consider that Sackville J's statement at [19] "these being matters ACMA was compelled to take into account by s 91(2A)" is considered dicta. This is because: (a) the issue about the relationship between s 91(2A) and s 84(2) did not arise before Sackville J, (b) there is no suggestion that his Honour received submissions about the issue, and (c) the statement is a single line in brackets without any supporting reasoning in that part of his Honour's reasoning summarising ACMA's reasons for its decision. Justice Sackville's statement is best characterised as a passing comment by a single judge. As such, it is neither binding nor persuasive. Having had the benefit of competing submissions about s 91(2A) specific to the issue, I am also satisfied that Sackville J's obiter dicta in [19] is wrong.
76 This said, I do not suggest that in deciding whether or not to grant a renewal, ACMA is prohibited from considering whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee. While ACMA suggested this might be so, it is unnecessary to go so far and I do not discern such a prohibition from the statutory scheme. My point is that ACMA is not bound to consider whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee in deciding whether or not to renew a community broadcasting licence. If ACMA chooses to consider that issue, then that is a matter for ACMA. If it so chooses, it may also choose whether or not to conduct an investigation or a hearing into whether a licence should be renewed: s 91(3).