Evans v Friemann

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VG 684 of 1996 ) GENERAL DIVISION ) BETWEEN: SAT FM PTY LTD Applicant AND: AUSTRALIAN BROADCASTING AUTHORITY Respondent JUDGE: SUNDBERG J PLACE: MELBOURNE DATED: 18 JULY 1997 REASONS FOR JUDGMENT BACKGROUND The applicant seeks review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of what it describes as "the decision of the Australian Broadcasting Authority released on 8 October 1996 that 'No additional commercial FM radio broadcasting services will be made available in the Kalgoorlie licence area'". The applicant is aggrieved by the decision because its interests as a person who has expressed interest in bidding for a third commercial FM radio broadcasting licence for the Kalgoorlie licence area are adversely affected by the decision. The grounds of the application are of no present relevance. The respondent ("the Authority") has filed a notice objecting to the competency of the application. The ground of objection is expressed as follows: "The decision sought to be reviewed forms part of the Licence Area Plan for Esperance, Kalgoorlie and Merredin determined by the Respondent pursuant to section 26 of the Broadcasting Services Act 1992. The determination of the Licence Area Plan is of a legislative character and is not of an administrative character. Accordingly, it is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies."

AUSTRALIAN BROADCASTING AUTHORITY The Authority is established by s154 of the Broadcasting Services Act 1992 ("the Act"). It has the functions listed in s158. They include planning the availability of segments of the broadcasting services bands on an area basis, allocating licences, developing program standards relating to broadcasting and monitoring compliance therewith, and investigating complaints concerning broadcasting services. The Authority is required by s160 to perform its functions in a manner consistent with the objects of the Act and the regulatory policy described in s4, any general policies of the Government notified by the Minister under s161, any directions of the Minister under the Act, and Australia's obligations under any convention to which it is a party. Section 161 empowers the Minister to notify the Authority of general policies of the Government that are to apply to it. Section 162 empowers the Minister to give written directions of a general nature to the Authority as to the performance of its functions. The Minister must cause a copy of any such direction to be published in the Gazette. Except as otherwise provided by the Act, the Authority is not subject to direction by or on behalf of the Commonwealth: s163. COMMERCIAL BROADCASTING SERVICES Part 2 of the Act is concerned with categories of broadcasting services: national broadcasting services, commercial broadcasting services, community broadcasting services, subscription broadcasting services, subscription narrowcasting services, and open narrowcasting services. A "broadcasting service" is a service that delivers television or radio programs to persons having equipment appropriate for receiving that service: s6. "Commercial broadcasting services" are broadcasting services that provide programs intended to appeal to the general public, are made available free of charge, and are operated as part of a profit-making enterprise: s14. The Authority may, by notice in the Gazette, determine additional criteria to those specified in s14 for the purpose of distinguishing between categories of broadcasting services: s19(1). The Minister may give specific directions to the Authority as to the making of determinations, and the Authority must observe those directions: s19(3). Determinations under s19 are disallowable instruments for the purposes of s46A of the Acts Interpretation Act 1901. PLANNING OF BROADCASTING SERVICES BANDS Part 3 of the Act deals with "Planning of the Broadcasting Services Bands" and consists of ss23 to 35. Section 23 provides that "In performing functions under this Part, the ABA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to: (a) demographics; and (b) social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and (c) the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and (d) developments in technology; and

(e) technical restraints relating to the delivery or reception of broadcasting services; and (f) the demand for radiofrequency spectrum for services other than broadcasting services; and (g) such other matters as the ABA considers relevant." The word "spectrum" is defined in the Radiocommunications Act 1992 (to which the Act makes frequent reference) as "the range of frequencies within which radiocommunications are capable of being made". Section 25 requires the Authority to prepare frequency allotment plans, and s26 requires it to prepare licence area plans. Section 24 provides that before preparing either type of plan the Authority must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans. The Authority may, by notice in writing, vary priorities. The expression "broadcasting services bands" means that part of the radiofrequency spectrum that is designated as being primarily for broadcasting purposes and is referred by the Minister to the Authority for planning: s6. Section 25(1) provides that where the Minister has referred a part of the radiofrequency spectrum to the Authority for planning, the Authority must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services using that part of the radiofrequency spectrum. The Authority may, by notice in writing, vary a frequency allotment plan: sub-s(2). In preparing or varying a frequency allotment plan, the Authority must comply with any directions, whether of a general or specific nature, given to it by the Minister: sub-s(3). Section 26(1) provides: "The ABA is to prepare in writing licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan." The Authority may, by notice in writing, vary a licence area plan: sub-s(2). In performing its functions under ss24, 25 and 26 the Authority must make provision for wide public consultation: s27(1). It must keep a record of, and make available for public inspection, all advice received and all assumptions made by it in the performance of its functions under those sections: sub-s(2). Section 29 provides that before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence that is a broadcasting services bands licence, the Authority must designate one of the areas referred to in s26 as the licence area of the licence. If the Authority varies a licence area plan, it may vary the designation of the relevant licence areas. Section 35 provides that if the Authority makes an instrument under Part 3, it must publish in the Gazette a notice stating that the instrument has been made and the places where copies can be purchased. ESPERANCE, KALGOORLIE AND MERREDIN (RADIO) LICENCE AREA PLANS By determination dated 26 September 1996 the Authority made plans under s26(1) for each of the Esperance, Kalgoorlie and Merredin regions of Western Australia. The plans are contained in volume 2 of a document entitled "Esperance, Kalgoorlie and Merredin (Radio) Licence Area Plans and Reasons for Decisions". Volume 1 contains the "Reasons for Decisions". At pages 1 to 5 of volume 1 are set out a number of "Radio Decisions". Decision 2 records the same decision in relation to each of the Esperance, Kalgoorlie and Merredin licence areas. The Kalgoorlie decision is that "No additional commercial FM radio broadcasting services will be made available in the Kalgoorlie licence area." THE "DECISION" The Kalgoorlie decision of which the applicant seeks review does not appear in terms in the Kalgoorlie (Radio) Licence Area Plan in volume 2, but it is implicit in the Plan by reason of the statements appearing on the page entitled "Determination", (namely that two additional community radio broadcasting services are to be available), that no additional commercial FM radio broadcasting services are to be made available. What is described as "Decision 2" (really three decisions, each to the same effect, in respect of three areas) is a statement of the effect of the Plan. The issue therefore is not the proper characterisation of the Kalgoorlie limb of Decision 2, as if it stood alone as a decision that there are to be no new commercial radio broadcasting services in the Kalgoorlie area, but the proper characterisation of that limb as part of the overall Plan for the Kalgoorlie licence area. ADMINISTRATIVE OR LEGISLATIVE? The trichotomy of administrative, legislative and judicial acts is maintained by the ADJR Act, and decisions of a legislative or judicial character are excluded from review: Evans v Friemann (1981) 53 FLR 229 at 236. Several considerations point to the Kalgoorlie decision, viewed as an element of the Plan, being of a legislative rather than of an administrative character. (a) A licence area plan creates new rules of general application to those wishing to provide broadcasting services in the licence area, rather than applying such rules in a particular case to a particular broadcaster. A plan determines the number and characteristics of broadcasting services that are to be available in particular areas. The creation or formulation of rules of law having general application rather than the application of those general rules to particular circumstances is an indicium of a legislative rather than an executive power: The Commonwealth v Grunseit (1943) 67 CLR 58 at 82; Ministry for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325 at 331; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 634-636; Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463 at 470-473; Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 107-109. (b) The making of a licence area plan must be notified in the Gazette: s35. Notification is required as a means of publicising the existence of the plan. A requirement of publication has been seen as suggesting the legislative character of the subject of the publication: Pearce Delegated Legislation (1977) at 63; Aerolineas Argentinas at 109; Vietnam Veterans' Affairs Association v Specialist Medical Review Council (unreported, Federal Court, 15 November 1996) at 20-21. (c) In preparing a plan the Authority is required to make provision for wide public consultation. That seems to me to endow the plan with a legislative rather than an administrative character. (d) In preparing a plan the Authority must have regard to wide policy considerations: the objects of the Act set out in s3, the economic and efficient use of the radiofrequency spectrum, the functions set out in s158, the regulatory policy described in s4, and any general policies of the Government notified to the Authority. See ss23, 158 and 160. The subject matter for decision involves complex policy questions. In J W Hampton Jn & Co v United States (1928) 276 US 394 at 407 the Supreme Court referred to the distinction between the delegation of power to make the law, "which necessarily involves a discretion as to what it shall be", and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. (e) The power of the Authority, by notice in writing, to "vary" a plan, is analogous to the legislature's power to amend legislation. (f) Once a plan is made, it is not subject to executive variation or control: Vietnam Veterans at 22; Aerolineas Argentinas at 110. (g) The decision to promulgate a plan is not reviewable by the Administrative Appeals Tribunal. Section 204 provides for review under that Act of a number of decisions made under the Act. A table describes each decision subject to review, the provision under which it is made, and the person who may apply for review. The reviewable decisions include the refusal to allocate a licence, a decision that a person is not a suitable applicant or licensee, and decisions to suspend or cancel a licence. But there is no mention of s26. The fact that an enactment allows for the review by the Tribunal of certain decisions made under its provisions but not for others, has been seen as an indication that the other decisions are not of an administrative character: Austral Fisheries at 471-472. (h) A plan has binding legal effect once prepared, in the sense that various statutory provisions are only enlivened following its preparation. Thus, before allocating a new broadcasting services bands licence, the Authority must designate one of the areas referred to in s26 as its licence area: s29. The "areas referred to in section 26" are areas in plans in fact prepared by the Authority. A person may not exercise control of more than two commercial radio broadcasting licences in the same licence area: s54. The Authority may determine the licence area population of the licence area (s30), and this determines the number of television licences a person can control: s53. The fact that a plan has this "carry-on" effect supports its characterisation as a legislative measure. Cf Austral Fisheries at 472 and Vietnam Veterans at 19.

Not all the above considerations are of equal weight. But their combined effect certainly persuades me that viewed as part of the Plan the decision under attack is not of an administrative character. CONCLUSION The objection to competency is upheld, and the application for review is dismissed with costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of the Honourable Justice Sundberg Associate: 18 July 1997 Counsel for the Applicant: D J Williams Solicitor for the Applicant: Christopher Bunnett Counsel for the Respondent: B J Shaw QC and N J Williams Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 July 1997