Proposed new grounds
133 In the draft further amended originating application filed after the hearing (though foreshadowed at the conclusion of the hearing on 28 March 2012), the applicants sought to add the following grounds of review:
8. Alternatively, inasmuch as the Decision was made in the performance of the ACMA's incidental or preliminary functions under the ACMA Act, the ACMA took irrelevant considerations into account, and/or the Decision involved an error of law, and/or the Decision was otherwise contrary to law: ADJR Act, ss 5(1)(e) & 5(2)(a), s 5(1)(f), s 5(1)(j).
Particulars
a. The ACMA incorrectly considered that it was performing a function under sections 24, 25 and 26 of the Act in making the Decision and, in consequence, erroneously applied the Licence Area Policy as an operative constraint on the making of the Decision.
b. The ACMA erroneously undertook a detailed analysis of the substance of the Application and reached concluded views as to its merits, in a manner inconsistent with the incidental or preliminary nature of the ACMA's function and which subverted the statutory scheme of Part 3 of the Act.
134 The ACMA opposed the inclusion of the new grounds on the basis that it was too late to amend and the amendment would be futile. As to timing, the ACMA submitted that the applicants could have sought to include the new grounds at an earlier date, because, as early as February 2012, the ACMA had affirmed that the challenged decision had not involved the performance of a function under s 26, for the purpose of s 27, but, "at most, was doing something preliminary and incidental to its function under s 26" see paragraph [23.2] of the outline of the respondent's submissions dated 24 February 2012. The ACMA submitted that since the proposed new review grounds relied on the premise that the challenged decision was in exercise of a function preliminary or incidental to a function under s 26, these grounds could have been raised immediately after these February submissions, as opposed to in submissions filed on 20 April 2012 after the hearing. I am inclined to the view that the ACMA's analysis should be accepted, although, as indicated below, the matter is less cut and dried than the ACMA would have it.
135 The ACMA's defence to the applicants' judicial review grounds only assumed its final form on the second day of the two-day hearing when senior counsel for the ACMA located ss 10 and 12 of the ACMA Act as the express statutory source of the ACMA's function or power to receive, consider and decide on Sunshine's request. This crystallised the parties' competing contentions. Yet the ACMA's late reference to these provisions did not mean that the applicants were required to meet a wholly different case from that which they came to meet. As the ACMA noted in its post-hearing submissions in response, the applicants' position was that the classification of a function as one under a particular provision did not depend on whether ss 10(1)(o)(ii) and 10(1)(s) and/or s 12 of the ACMA Act provided the source of power to perform the function. Further, the applicants maintained that these provisions merely identified a function or power that would have been implicit in any event. With these considerations in mind, I am inclined to accept that, as the ACMA said, the ACMA's late reliance on ss 10 and 12 of the ACMA Act did not relevantly alter the position. Nonetheless the position is not free from doubt. Accordingly, I turn to the question of whether or not the amendment to add the proposed new grounds should be refused because to add those grounds would be futile.
136 There is no doubt that the ACMA considered Sunshine's request for a variation of the Nambour LAP. Whether or not it was under an obligation to do so - being an obligation to be implied from the governing legislation - need not be considered here.
137 If there is such an obligation, there are effectively two aspects to the exercise of discretion. There is the "gateway" issue - whether the proposed variation is of a kind that makes it appropriate for the ACMA to enter upon the function contemplated in s 26(2), including the process of wide public consultation required by s 27(1) of the BS Act. There is also the discretion as to the factors that the ACMA takes into account when forming a view on the "gateway" issue.
138 The applicants argued that the ACMA's discretion was limited in two respects. First, as already mentioned, the applicants argued that the ACMA can only refuse to take forward a proposed variation to a LAP where the proposal is "insubstantial, trivial, repetitious, frivolous or vexatious" or has some comparable defect. As stated earlier, there is simply no statutory basis for such a limitation. The applicants' submission in this regard is discussed further below. Secondly, the applicants argued that, in considering the proposed variation, the ACMA was not permitted to take into account the policy that it would apply in discharge of its function under s 26 and the merits of the proposed variation so far as they bear on the gateway issue.
139 There is no statutory statement of the matters that the ACMA may or must consider in exercise of the discretion involved in the challenged decision. There are no legislative provisions providing for the receipt or consideration of a request like that made by Sunshine, to vary a LAP. In the words of Dixon J in Browning at 505, there is no "positive indication" of such considerations. The ACMA's discretion is therefore "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view": see Browning at 505 (Dixon J); Radio 2HD at 49 (Stephen, Mason, Murphy, Aickin and Wilson JJ); Peko-Wallsend at 39-40. As Mason J said in Peko-Wallsend at 40 in a much-quoted passage:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which is in its terms unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
(Citations omitted.)
140 This does not mean that the ACMA can exercise its discretion in any arbitrary or perverse way: compare Browning at 505 and Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at 551 [133]. As Dixon J went on to say in Browning at 505:
I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power. But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon.
(Citations omitted.)
141 In Radio 2HD at 49, Stephen, Mason, Murphy, Aickin and Wilson JJ referred to these statements of Dixon J in Browning before observing that "[t]he applicant therefore shoulders a very heavy, indeed an impossible, burden" in seeking to show that the Tribunal had no discretion to refuse consent to the licence transfer: see [83] above. In this case, the applicants carry a heavy burden in seeking to establish that the discretion to consider Sunshine's request for a variation of the Nambour LAP was limited in the way they have argued.
142 In this context, a particular consideration would be irrelevant only if it was extraneous to any purpose falling within the scope and object of the ACMA's discretion in carrying out any obligation to consider a request to vary a LAP under s 26(2) of the BS Act. The fact that at the time it made the challenged decision the ACMA mistook its task as one that was authorised by s 26 of the BS Act, rather than under ss 10 and 12 of the ACMA Act, does not of itself disclose reviewable error - providing its misunderstanding of its task did not lead it to take into account such an extraneous consideration: see Lockwood v The Commonwealth (1954) 90 CLR 177 at 184.
143 In support of their proposed new grounds, the applicants contend that the ACMA "erroneously applied the Licence Area Policy as an operative constraint on the making of the [challenged] [d]ecision": see also above [125] and following. This was presumably a reference to the statements made by the ACMA in the ACMA paper at paragraphs [12] and [43] concerning the ACMA's stated policy. For convenience, I set out paragraph [12] again, since it is critical to an understanding of this argument. Paragraph [12] of the ACMA paper stated that:
12. Section 27 of the BSA requires the ACMA to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA in performing its functions under sections 24, 25 and 26 (s.27(2)). One of these assumptions is that licence areas of commercial broadcasting services using the broadcasting services bands 'represent accepted media markets and the [ACMA] will not vary them without good reason, other than to update them where boundaries are based on outdated Census descriptions. This approach is also reflected in the ACMA's draft policy on LAP variations.
144 The substance of the applicants' argument would appear to be that the ACMA impermissibly took account of that "good reason" policy because:
(a) the policy itself assumed that a process of public consultation would have taken place before it came to be applied;
(b) taking into account the "good reason" policy "so as to prevent the carrying out of wide public consultation … inverted the statutory scheme for the proper conduct of [the ACMA's] planning function under ss 24, 25 and 26"; and
(c) taking account of a policy that was designed to be applied in the performance of functions under ss 24, 25 and 26 was necessarily improper (within the meaning of ss 5(1)(e) & 5(2)(a), 5(1)(f) and 5(1)(j) of the ADJR Act) if the function being carried out was preliminary to the performance of a function under ss 24, 25 or 26 of the BS Act.
145 If, in engaging in the process of varying a LAP under s 26 of the BS Act, the ACMA would properly take into account the "good reason" policy (see [125]-[132] above), then it is plainly rational and consistent with the BS Act for the ACMA to have regard to that policy in deciding whether a request to vary a LAP of the kind made by Sunshine should be carried forward and the s 26 process engaged. It would be anomalous if the "good reason" policy was a permissible consideration for making or declining to make a variation once the ACMA had entered upon its legislative function, including undertaking public consultation, but an impermissible consideration at the anterior step of deciding whether it was appropriate to engage in that function or not: compare Radio 2HD at 50-51. There is, moreover, no part of the subject matter, scope and purpose of the BS Act that can, by implication, be interpreted so as to preclude the ACMA from taking the "good reason" policy into account when making this anterior decision.
146 Furthermore, I do not consider that there was any merit in the applicants' assertion that the policy applied only to the preparation, not the variation, of a LAP. There was little argument on this point but, plainly enough, it was open to the ACMA to have regard to the policy in both preparation and variation determinations, since, as indicated above, a proposed variation is affected by similar considerations to the initial preparation of a LAP.
147 For the foregoing reasons, the first argument that the applicants seek to make by reference to the proposed new grounds is not fairly arguable.
148 The applicants' second argument was that the ACMA "erroneously undertook a detailed analysis of the substance of [Sunshine's] application and reached concluded views as to its merits". The applicants argued that, "by undertaking a full analysis of the proposed variation without the benefit of wide public consultation, the ACMA subverted the statutory scheme of Part 3 of the [BS] Act". At the hearing and in relation to this proposed new ground, the applicants' submission was that the only relevant issue for the ACMA when it received a request for a variation of a LAP and the only matter that it could consider before embarking on its function under s 26 of the BS Act was whether the request was "insubstantial, trivial, repetitious, frivolous or vexatious". The applicants argued that Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 ("Padfield") supported their position.
149 I have already referred to the lack of statutory support for the applicants' proposed limitation. As stated above, there is no aspect of the subject matter, scope or purpose of the BS Act or the ACMA Act that would support this implied limitation on the ACMA's discretion to consider variation requests. The applicants' further submission in their post-hearing submissions that the criteria to which it referred were not exhaustive did not improve their argument, since the applicants failed to indicate any other relevant limitation that might be implied from the subject matter, scope or purpose of the legislation.
150 On the other hand, in deciding whether to initiate the process that could lead to the variation of a LAP under s 26(2) of the BS Act, including carrying out the wide public consultation required by s 27(1), it would be irrational for the ACMA not to have some regard to the merits of a proposed variation. As the ACMA noted in its post-hearing submissions in response, one of the House of Lords' criticisms of the Minister's decision in Padfield was that the Minister had not had regard to the merits of the complaint in deciding not to refer it: see Padfield at 1049 (Lord Hodson), 1059 (Lord Upjohn). Further, their Lordships rejected the appellants' contention in that case that the Minister's duty was "to refer every genuine and substantial complaint" or that an aggrieved person had an "absolute right to an enquiry": see Padfield at 1029 (Lord Reid), 1045-1046 (Lord Hodson), 1057-1058 (Lord Upjohn); also 1038-1039 (Lord Morris, dissenting).
151 In any event, as the ACMA noted, even if the applicants' limitation were accepted, it would be virtually impossible in many cases for the ACMA to determine whether a request for variation was "insubstantial, trivial, repetitious, frivolous or vexatious", without giving some consideration to the merits of the request. Indeed, in using the adjective "substantial", the members of the House of Lords in Padfield meant something akin to "having merit": see Padfield at 1029-1032 (Lord Reid), 1054 (Lord Pearce). If a test of substantiality were appropriate in the context of the BS Act, then, in this case, the ACMA would have applied no relevantly different approach since the ACMA's consideration of Sunshine's request involved comparing the material put forward by Sunshine with the results of "desk-based analysis and research" for the purpose of deciding whether there was a sufficient case to take forward: see 23 September 2011 reasons at paragraph [21].
152 To the extent that the House of Lords in Padfield held or intimated that, in the circumstances, the Minister was under a duty to refer the complaint for investigation, this must be understood in the context of the complaint in that case and the very different legislation at issue. This legislation provided a defined category of aggrieved persons with the remedy of having complaints dealt with by a committee of investigation, on referral by the Minister: see Padfield at 1027, 1032 (Lord Reid), 1045 (Lord Hodson), 1051-1053 (Lord Pearce). The remedy would have been rendered nugatory if no duty was imposed on the Minister to refer a complaint.
153 It is clear enough that Part 3 of the BS Act, especially in ss 24, 25 and 26, is of an entirely different nature to the legislation considered in Padfield. As already stated, the BS Act evidently contemplates that LAPs created under s 26 by legislative instrument will have a relatively enduring nature, and that the public (including relevant licence holders) are not to be unduly burdened with proposed or actual changes to them. In this context, there is no reason to suppose that Parliament would have intended that the ACMA be obliged to discharge its function under s 26(2), including undertaking wide public consultation, without paying any regard to the merits of the requested variation beforehand.
154 The applicants argued at some length in their post-hearing submissions that the ACMA's decision went beyond determining whether or not it was appropriate to take Sunshine's request for a variation forward so as to engage in a function under s 26. Referring to the ACMA paper and the 23 September 2011 reasons, the applicants argued that "the ACMA reached a concluded view that the proposed variation was in substance inappropriate" notwithstanding that "the very purpose of the s 27 requirement … was to ensure that the views of the public … would be appropriately and meaningfully taken into account". I reject this attempted characterisation of the ACMA's decision. For the reasons already stated, no consultation obligation had as yet arisen under s 27(1). In any event, the applicants' characterisation of the challenged decision is inconsistent with the terms in which the ACMA stated the decision, as set out in its resolution of 25 August 2011, that "there was no sufficient case to propose a variation to the Nambour LAP changing the boundary of Nambour RA1".
155 The gist of the applicants' argument is that, because of the role played by public consultation in s 27(1) of the BS Act, the ACMA is not permitted to consider the merits of a proposal, or is not permitted to do so "in detail", without the benefit of the views of the public, but this assumes the very issue that falls for the Court's determination. For the reasons stated, I would not regard this as fairly arguable.
156 As the proposed new grounds are not fairly arguable, I would not grant leave to amend so as to include them in the applicants' application: compare Nicholls v Australian Federal Police (2009) 192 A Crim R 425 at 437-438; [2009] FCA 15 at [66].