WorldAudio Limited v Australian Communications and Media Authority

The applicants' reasons for the intervention of curial relief and the nature of the relief sought 17 It is largely in the context I have already described that what the applicants contend to have been the primary decision of the Authority made adversely to the applicants on 30 June 2005, being a decision followed by the Authority's subsequent refusal to reconsider that earlier decision pursuant to s 285(g) of the Act, or to provide reasons for it, have become the subject of an application for review under both the ADJR Act, and contemporaneously also under s 39B(1A) of the Judiciary Act 1903 (Cth) ('Judiciary Act'). The applicants' apprehension is that the practical effect of the decisions of the Authority under review is that their present broadcasting service under the auspices of the 1620 licence must cease to be provided to the Brisbane area, there being apparently no other means by which the applicants could cause their subject broadcasting service to be transmitted to the numbers of persons in that area presently reached. The implications of any such outcome are apparently considered to be as damaging as they are far reaching to the applicants. 18 The applicants' case was that the maintenance of the status quo in relation to the 1620 licence, is vital to WAL's business involving the sale of broadcast airtime to advertisers, and further that the metropolitan area of Brisbane, as the capital city of Queensland, is a vital part of WAL's radio network. The provision of the subject broadcasting service under the 1620 licence is a key source of the advertising revenue of WAL. That is because when allocating advertising to radio networks, advertising agencies place significant weight on the ability of a network to reach audiences in the three major Eastern seaboard capital cities of Brisbane, Sydney and Melbourne. Accordingly if WAL is unable to continue to provide a radio network which covers each of those cities, it will be seriously disadvantaged financially when competing in the national radio market, being a market presently embracing at least those three capital cities. It was asserted that WAL's reputation as a reliable provider of national commercial radio would therefore also be greatly damaged, with a consequentially adverse impact on all remaining markets in which it presently operates, and therefore on its revenues, share price and returns to shareholders. 19 The Authority's decision primarily the subject of the present application for review, as I have foreshadowed, was communicated to the applicants by letter dated 30 June 2005, being a decision by the Authority not to vary a condition of the 1620 licence by providing that instead of the site of transmission remaining nominally at 170 Kingsley Terrace, Manly, the current site of actual transmission at 320 Fleming Road, Tingalpa be authorised. That nominated site relocation was not entertained because it was said not to meet the Authority's policy relating to separation distances between transmitters. That refusal of site relocation decision, according to the applicants, was made pursuant to s 111 of the Act; however the Authority did not so characterise the same, and hence the Authority did not issue a s 287 notice. 20 Included within the challenge of that decision of 30 June 2005, and hence the subject further of the present administrative review proceedings, are also what the applicants term the Authority's subsequent decisions, each made on 18 August 2005, being not to reconsider its first decision pursuant to s 285(g) of the Act, and also to refuse WAL's request for a statement of reasons for that first decision pursuant to s 13 of the ADJR Act. The Authority adopted the position that no decision the subject of challenge had been made by it under an enactment, notwithstanding, as the applicants would insist, that a decision of the Authority exercising the discretion conferred by s 111 of the Act would constitute such a decision. 21 The basis provided by the applicants in their amended application for being 'aggrieved' by the three respective decisions referred to above, within the meaning of s 5(1) of the ADJR Act, were outlined as follows: (i) AusCoast is a wholly owned subsidiary of WAL and the holder of the 1620 licence; (ii) by letter dated 14 February 2005, WAL requested that the site of the 1620 licence be changed from the Manly site to the Tingalpa site; and (iii) the Authority 'claims that no decision has been made under an enactment and has refused to reconsider the First Decision [ie communicated on 30 June 2005] or to provide a statement of reasons as sought by [WAL].' 22 The grounds for the applicants' review application were fourfold as follows: (i) the first decision of the Authority on 30 June 2005 involved one or more errors of law, in that:

(a) the Authority misconstrued the NAS PIP Policy (being the policy embodying the so‑called '30/160 rule' and the 'make it better rule') by applying the same as if it had the force of law;

(b) the first decision was made in accordance with that policy, being a published policy of the Authority, and was based primarily on the reduction in distance between another radiocommunications transmission site at Mango Hill (apparently conducted by Proma Radio) and the Tingalpa site from 30.7 kilometres to 29.6 kilometres; so much was said by the applicants to involve 'an overly rigid application of the policy, which is a policy and not a statutory rule';

(ii) the making of the first decision on 30 June 2005 was an improper exercise of the power conferred by s 111 of the Act, in pursuance of which it was purported to be made, in that:

(a) the Authority failed to take relevant considerations into account in the exercise of the power, namely the considerations set out in WAL's request for the site of the licence to be changed from Manly to Tingalpa;

(b) the Authority exercised its discretionary power in accordance with a rule of policy without regard to the merits of the particular case;

(iii) the second decision, being the Authority's refusal to reconsider its decision of 30 June 2005, involved an error of law, in that the Authority misconstrued ss 111, 285(f) and 285(g) of the Act;

(iv) the third decision involved an error of law, in that having regard to the proper construction of ss 111, 285(f) and 285(g) of the Act, the Authority was obliged under s 13 of the ADJR Act to provide WAL with a statement of reasons under that provision in respect of the first decision.

23 Those above respective provisions of the Act (of course being the Radiocommunications Act 1992 (Cth)earlier referred to) read, so far as presently material, as follows: '111 Changes to licence conditions (i) The ACMA may, by notice in writing given to the licensee of an apparatus licence: (a) impose one or more further conditions to which the licence is subject; or (b) revoke or vary any condition imposed under paragraph (a); or (c) revoke or vary any condition specified under paragraph 107(1)(g) … (d) if the licence is a transmitter licence, other than a licence issued under section 101A, 102 or 102A or a datacasting transmitter licence - vary a condition of the kind referred to in paragraph 108(2)(a), (b) or (c).' (I would mention that s 107 relates to general conditions of an apparatus licence, s 108 to additional conditions for transmitter licences, and ss 101A, 102 and 102A to transmitter licences for particular broadcasting services). '285 Decisions that may be subject to reconsideration by the ACMA An application may be made to the ACMA for reconsideration of any of the following decisions: … (f) inclusion of conditions in an apparatus licence under paragraph 107 (1)(g) …; (g) a decision under section 111 concerning the conditions of an apparatus licence;'. 24 It is appropriate to set out also the text of paragraphs 107(1)(a), (f) and (g): '107 General conditions (1) An apparatus licence is subject to the following conditions: (a) a condition that the licensee, and any person authorised by the licensee to operate a radiocommunications device under the licence, must comply with this Act; … (f) such conditions (if any) as the ACMA may determine, by written instrument, in relation to that particular type of apparatus licence; (g) such other conditions as are specified in the licence. …'

The Authority's objections to competency and the applicants' contentions in support of competency 25 On 31 August 2005, the Authority filed an amended notice of objection to competency which asserted that the Court lacked jurisdiction to try the application for review brought under the ADJR Act and under s 39B(1A) of the Judiciary Act,on the grounds that the decision purportedly the subject of the proceedings is not a decision made under an enactment nor a matter arising under any laws made by the Parliament. The amended notice of objection to competency went on to state '[i]n the alternative if the court determines that it has jurisdiction there is no proper basis upon which to grant relief to the applicant[s]'. The Authority described this as its 'related alternative motion'. 26 As I have foreshadowed, in support of its objection to competency, in relation to the operation of the ADJR Act in the present circumstances outlined by the applicants, the Authority characterised its decision of 30 June 2005 adversely to the applicants, not as a decision to refuse to change the subject site condition for the 1620 licence of the applicants, but rather as a prior decision to decline to consider whether or not the site condition may be varied at all. It was largely upon that footing that the Authority contended that the initial or prior decision of 30 June 2005 was not a decision made under an enactment, even though a decision involving the exercise of the discretion conferred by s 111 of the Act would seemingly constitute such a decision. The applicants rejoined to the effect that even if that purported distinction was to be taken at face value, the very notion that any such so‑called initial or prior decision did not constitute a decision made under the Act immediately encounters forensic and conceptual difficulties. The Authority also submitted that the lawfulness of such initial or prior decision was not a 'matter … arising under any laws made by the Parliament …' (see s 39B(1A) of the Judiciary Act), since it was made under a non‑legislative policy, being the subject of the NAS PIP and NAS BOP policy documents referred to above. 27 The meaning and implications of the statutory notion of 'decision', where used in the ADJR Act, was comprehensively explained by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. It was emphasised by Mason CJ at 335 (with whose reasons Brennan J agreed, as did Deane J other than in relation to a particular matter not here material) that such meaning must be determined by reference to the text, scope and purpose of the legislation, and further that the remedial nature of the ADJR Act indicates that no narrow view is to be taken of the notion of 'decision' in that statutory context. Moreover his Honour pointed out at 336 that the concept of 'a reviewable decision is a decision which a statute requires or authorises, rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision', and further that 'the examples of a decision listed in the extended definition contained in s 3(2) [of the ADJR Act] are also indicative of a decision having the character or quality of finality, [being] an outcome reflecting something in the nature of a determination of an application, inquiry or dispute …'. Section 3(3) of the ADJR Act, which extends the statutory definition of 'decision' to '… the making of a report or recommendation before a decision is made in the exercise of a power', was said by his Honour to operate to '… qualif[y] the characteristic of finality'. Moreover the Chief Justice explained that '… acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".' 28 In the further course of his reasons for judgment in Bond at 337, Mason CJ pointed out that '… a reviewable "decision" is one for which provision is made by or under a statute', which '… will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration', so long of course '… that it be a substantive determination', as opposed to 'procedural determinations'. 29 The applicants focused those explanations and expositions of the Chief Justice upon s 111 of the Act, which refers to power conferred upon the Authority inter alia to revoke or vary any condition of a licence which it may have previously imposed, and submitted that so much did not mean that a refusal to exercise any such positive power on the part of the Authority did not constitute a decision made under s 111. It was pointed out in that regard, in my opinion rightly, that there are many statutes in which the decision‑making power is expressed only in terms of a positive discretion, without express reference to the power to make a decision of a negative character, yet in such cases it is necessarily implicit that a negative decision would also be made under that provision. Otherwise, so it was further emphasised by the present applicants, paras (a), (b) and (g) of s 3(2) of the ADJR Act would be otiose. Those subsections read as follows (the emphasis appearing in non‑italics is mine): 's 3(2) In this Act, a reference to the making of a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; … (g) doing or refusing to do any other act or thing…' 30 In that context of the applicants' discussion of general principles and their operation, I was then referred to the decision of a Full Federal Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, where it was held by Lockhart and Beaumont JJ that a decision by the Secretary not to direct that clinical trials of a drug be stopped was a reviewable decision for the purposes of the ADJR Act. The provision in issue was item 3(e) of Schedule 5A of the Therapeutic Goods Regulations 1990 (Cth), that item being one of a number of conditions to be satisfied for exemption of the drug from the operation of Part 3 of the Therapeutic Goods Act 1989 (Cth), which condition read as follows: '(e) the Secretary must not, at any time: (i) have become aware that to conduct or continue the trial would be contrary to the public interest; and (ii) have directed that the trial not be conducted, or be stopped …'. The appellant Association had requested the Secretary to stop the trials on the ground that they amounted to a breach of NSW and Victorian criminal law, and were thus 'contrary to the public interest'. The Secretary had then notified the appellant Association and advised that on the evidence available, 'nothing would warrant my acting to stop the trials'. At 62, Lockhart J observed in relation to that notification as follows: 'If the Secretary has reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor [of the trial] would clearly be a person aggrieved and would in my view be entitled to such a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case … It was a decision which had "the character or quality of finality"; it was an ultimate or operative decision …' Beaumont J, who reached the same decision as Lockhart J, pointed out at 80 that '… the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed …'. Although he reached a different outcome to the majority, Gummow J's observations at 88 are I think also apposite for consideration in the present circumstances: 'It was submitted for the Secretary that s 5(1) of the ADJR Act would be attracted only if conferral of the power to give the direction carried with it a duty upon the Secretary. It was then submitted that in the case of condition (e) there was no such duty … The submission, in essence, would limit the operation of s 5 of the ADJR Act to decisions in respect of which there was a public duty, performance of which might be required by a writ of mandamus … This would be contrary to the scheme of the legislation …' 31 The Authority sought to deny any conclusion as to the existence of a justiciable decision by characterising its first decision as declining to even consider the exercise of any discretion under s 111 of the Act. In the applicants' submission that purported characterisation was misconceived, and must be rejected, for the following reasons: (i) the decision not to exercise its power under s 111 to vary a condition of the licence was indeed final, operative and determinative, in the practical sense described in Bond and in Right to Life¸ of AusCoast's ability to continue to broadcast under the auspices of the 1620 licence from the current site at Tingalpa; (ii) any such characterisation sits at least uncomfortably with the terms of the Authority's letter of 30 June 2005, containing as it does the assertion '[a]s a result the [Authority] will not exercise its discretionary power under section 111 of the [Act] and vary licence conditions in the terms proposed by [WAL]'; (iii) the decision not to exercise the power was one which was authorised by and therefore made under s 111 of the Act, since s 111 confers a discretionary power, and hence contemplates that a decision whether or not to exercise that discretion could be made, there being no other source of power for such a decision. I think that there is force in each of the foregoing submissions of the applicants. 32 The Authority did not dispute that a refusal to exercise a power may constitute a decision…made…under an enactment, for the purposes of the ADJR Act. Nevertheless it sought to distinguish Right to Life on the basis that in the circumstances of that case, as opposed to the present case, the decision-maker had purported to consider 'the full gamut…of all the relevant issues'. The Authority's contention was that its officer in this instance had in effect 'terminated the request [made by WAL for a variation in the site condition of the 1620 licence] at the first hurdle', without considering all of the issues that the Authority would normally take into account in assessing a variation. I am not persuaded that such contention of the Authority is sound, and that there is in any event any viable difference between the circumstances relevantly in Right to Life and those here prevailing. In both instances the decision-maker received a request for a decision to be made to a certain effect, and in both instances there was no provision made under the relevant legislation for such requests to be made by formal application. Moreover in both cases, detailed reasons for that request were given by the entity in favour of the decision it sought to be made. Most importantly for the outcome of this objection to competency, it was put by the applicants that the refusal of the Authority to make a decision in the terms requested by WAL had the practical effect of constituting an ultimate or operative decision, and hence one which bore the character of finality.

The applicants' contentions in relation to what it termed the Authority's second decision made on 18 August 2005 33 It becomes necessary to consider next the implications of the Authority's so‑called 'second decision', being that said by the applicants to have been made on 18 August 2005 not to reconsider its first decision of 30 June 2005, to the effect that it would not exercise its discretionary statutory power to alter the condition on the 1620 licence so as to change the site of the licence. The Authority's objection to the Court's competency to review the second decision rested however on its objection to competency of review of the first decision, and was therefore said by the applicants to encounter the same or similar difficulties which I have already described in relation to the first decision. The applicants contended that '[t]he plain words of para 285(g) [of the Act] also tell against the [Authority]'. 34 The opening words to s 285, which I have of course already extracted, but nevertheless merit further emphasis, are that '[a]n application may be made to [the Authority] for reconsideration of any of the following decisions', the notion of reconsideration being of wide import. Moreover the ensuing language of sub‑paragraph (g) includes the word concerning, which was also said by the applicants to be of wide import, such that there could be no contextual reason to construe s 285(g) narrowly. Hence the applicants contended on that basis that the Authority's decision not to vary the site condition at the centre of the disputation was clearly a decision concerning the conditions of the 1620 licence, that licence being of course an apparatus licence. 35 It was submitted by the applicants moreover that the wording of s 285(g) of the Act should be compared with other sub‑paragraphs of s 285. I was referred again to s 285(f) which explicitly refers to the inclusion of conditions in an apparatus licence under paragraph 107(1)(g) …'. So much was said by the applicants 'clearly' to exclude review of a negative decision, that is to say, a decision not to includ[e] the operation of any conditions in an apparatus licence under s 107(1)(g), which statutory expression is used in marked contrast to what appears in s 285(g), which was described by the applicants as covering 'both positive and negative decisions' by reason of its use in particular of the broad notion of concerning. 36 It was further submitted by the applicants that if s 285(g) of the Act was intended to be limited to decisions to give a notice under s 111, the Legislature would have used an expression such as that used in s 285(qa), namely decisions giving a notice. The point was said moreover to be made even more starkly when other sections of the Act are considered, such as s 118, which by para (a) of subs (1) thereof refers to 'a notice under section 111 relating to changes in licence conditions …'. The applicants submitted that it would have been a simple matter for the draftsperson to have used that expression in s 285(g) of the Act, had so much been the legislative intention, and further that the difference in expression provided an indication that para 285(g) has a wider operation than the phrase used in s 118(1)(a) of the Act. There is considerable force in those submissions of the applicants upon the statutory texts.

Outline of the Authority's submissions in support of its objection to competency 37 The Authority's principal contention was that the Act did not impose any duty upon it to consider or act upon requests made by licensees or others to vary the conditions of apparatus licences. Instead s 111 of the Act reposed in the Authority a discretionary power to unilaterally vary or revoke conditions of apparatus licences, and s 111 did not provide for a means whereby a licensee could move the Authority to exercise its power under that provision. The Act was said by the Authority to draw 'a clear distinction' between 'powers in respect of which an application may be made and is necessary and those where no provision is made for an application from an interested person'. I was referred in that regard to s 286 of the Act, which was said to evidence the former situation, that section reading as follows: 's 286 Deadlines for reaching certain decisions (1) If this Act provides for a person to make an application to the ACMA for such a decision, the ACMA must make the decision: (a) within 90 days after receiving the application; or (b) if the ACMA has, within those 90 days, given the applicant a written request for further information about the application - within 90 days after receiving that further information.' Subsection (2) provides for a deemed refusal by the Authority, if it has not informed an applicant of its decision within 90 days. Where any such application procedure is invoked, it was acknowledged by the Authority that it '… is under a duty to consider the application and indeed, must do so within a prescribed timeframe'. 38 Section 286 appears in Part 5.6 of the Act entitled 'Review of decisions' and follows s 285, which provides for the making of applications to the Authority for reconsideration of the decisions listed in that section. Bearing in mind the location of s 286 within Part 5.6 of the Act, the meaning of 'application…for such a decision' in s 286 must be read as a reference to an application to the Authority for a reconsideration under s 285, and not as a reference generally to any decision of the Authority under the Act for which application can be made. In any event, the absence of any such express 'application procedures' under the Act for the making by the Authority of decisions under s 111 was said by the Authority to imply that it lacked a duty to consider any request or application purportedly made by a licensee under s 111. I observe that the Authority did not draw the Court's attention to any species of decision under the Act for which an application procedure exists other than to applications for reconsideration of the decisions listed in s 285. 39 The Authority next contended that where no application procedure is provided for, as was said to be the case with decisions made under s 111, the Authority may have a discretionary power that can be exercised, such as its power to vary conditions under s 111, but that the Authority would be under no duty to exercise that power, or even to consider whether or not to exercise that power. Reference was made to two Full Federal Court authorities relating to the operation of the Migration Act 1958 (Cth) ('Migration Act'), as exemplifications of what was said to be a general principle that the mere existence of a discretionary power does not carry with it a duty to exercise the power, or even to consider whether or not to exercise the same. 40 It is convenient to consider immediately whether either of those authorities do exemplify or otherwise lend support to that contention of the Authority. WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 227 was concerned with the operation of s 427(1)(d) of the Migration Act,which provided that the Refugee Review Tribunal ('RRT') '… may require the Secretary to arrange for the making of any investigation … that the Tribunal thinks necessary with respect to the review.' The Full Court in WAGJ (Heerey, RD Nicholson and Mansfield JJ) held that s 427(1)(d) did not impose a duty upon the RRT to consider whether to exercise that power to order an investigation, their Honours placing emphasis upon such statutory words may and Tribunal thinks necessary. I would observe that the Court in WAGJ did not purport to lay down any general principle or rule, their Honours' decision apparently being predicated on the above emphasised words in s 427(1)(d), and the prevailing legislative context. The issue arising relevantly in the second of those decisions relied upon by the Authority, being WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79, was not concerned with any particular provision of the Migration Act at all, the appellant in that litigation contending that the Tribunal had erred by failing to enquire into the veracity of certain documents and correspondence provided by the appellant in support of his application for a protection visa. It is not apparent that the appellant in WAJQ formulated his case by reference to the operation of s 427(1)(d) of that legislation. The Full Court cited WAGJ as authority for the wider proposition that there is no duty on the RRT to make inquiries, the failure to carry out whereof would give rise to judicial review. 41 I am unable to obtain sufficient assistance from resort to authorities arising in the context of the Migration Act, which has its own terms and conditions for administrative review far removed from those contained in the ADJR Act. Leaving aside contextual statutory differences, WAGJ and WAJQ do not purport to lay down any principle of general application to the effect that the existence of a discretionary power does not impute a duty to consider whether or not to exercise it. Nor was either of WAGJ or WAJQ concerned with the meaning of 'decision … made … under an enactment', as that expression appears in the ADJR Act, or otherwise. 42 It was the Authority's further contention that its officers paid due regard to policy formulated by the Authority concerning the location of MF NAS transmitters, and took the view, as they were said by the Authority to be entitled to do, that the proposed relocation advanced by the applicants did not meet the policy requirements apparent in the so-called '30/160 rule', or the 'make it a better rule' apparent in the NAS PIP policy, and that as a consequence, it was decided by the Authority that the applicants' proposal should not be further entertained. The circumstances of the present case were said by the Authority in that context to be 'broadly analogous' to those considered in a joint judgment of a Full Federal Court (comprising Black CJ, Kiefel and Emmett JJ) in Bedlington v Chong (1998) 87 FCR 75, which was concerned with the operation of ss 48A and 48B of the Migration Act. The Authority relied upon Bedlington for the proposition that it is open to a decision-maker, who is under no duty to consider exercising a discretionary power, to draft a policy which identifies the types of cases in which the exercise of that discretion might be exercised. 43 Again I am unable to obtain sufficient assistance from resort to authorities involving the application and operation of the Migration Act, which in the case of Bedlington explicitly stipulated that 'the Minister does not have a duty to consider whether to exercise the [power] … in any … circumstances'. The Full Court emphasised at 78 of its reasons for judgment that the particular language of subsection 48B(6) was the sole basis for their decision that the Minister was under no duty in any circumstances to exercise the relevant power under s 48B(1). The critical issue arising was whether the Departmental Secretary was under a duty to bring the application made for the exercise of the power under s 48B(1) to the Minister's attention in order that the Minister could personally determine whether or not to exercise that power. Their Honours held that the use of policy guidelines by the Secretary as the basis for refusing to bring the application to the Minister's attention, where such guidelines were specifically intended to identify those cases in which the Minister might consider the exercise of his or her power was valid. I have considerable difficulty in discerning the availability of assistance from that further authority, given that it relevantly involved a power that the provision required be exercised personally by the Minister, and concerned only the proposition that the Minister had no statutory obligation to make a decision, and again did not occur in an ADJR Act context. Moreover there is no express provision in the Act (ie the legislation the subject of the present proceedings) to the effect that the Authority need not make any relevant decision. All that discourse put forward by the Authority here in relation to migration cases, in any event, ultimately still begs the question as to whether a decision not to make a decision in a particular context nevertheless constitutes a decision … made… under an enactment within s 5 of the ADJR Act. Taken to their logical conclusion, the Authority's submissions appear moreover to run contrary to the warning issued by Gummow J in Right to Life, which I have extracted above, to the effect that limiting the scope of the ADJR Act to decisions in respect of which there was a duty, performance of which might be required by a writ of mandamus would be contrary to the scheme of the ADJR Act. In that latter regard, I would refer again to the text of s 3(2) of the ADJR Act earlier extracted. 44 In further support of the contention that a decision by an officer to the effect that a request does not fall within an established policy as to which decisions will or will not be entertained, is not a decision…made…under an enactment, the Authority referred me to two additional decisions of this Court. The first was Brownsville Nominees Pty Ltd v Commissioner of Taxation (1988) 19 FCR 169, where Northrop J held that the Commissioner's refusal to issue an amended assessment under s 170 of the Income Tax Assessment Act 1936 (Cth) was not subject to review under s 7 of the ADJR Act. Section 7(1) of the ADJR Act provides for the making of applications for review of the failure of a decision-maker to make a decision where, inter alia, that decision-maker has a duty to make a decision to which [the ADJR Act] applies. Northrop J held at 173 of his reasons for judgment that s 170 did not impose any duty on the Commissioner to make an amended assessment of income tax upon the request of a taxpayer, and thus the application for review of the Commissioner's refusal to issue the amended assessment was not competent. I would observe that the Commissioner's refusal to issue an amended assessment was expressed to the taxpayer in that case in the following terms (at 171): '…In the circumstances your request to have the subject assessments amended should remain in abeyance pending resolution of the appeal…'. Of course the issue thus arising fell for consideration in the context of the complexity of the code of that legislation as to the circumstances where an amendment to an assessment may be made. Brownsville Nominees did not involve the situation of a successful challenge to an assessment of tax by the Australian Tax Office made by a taxpayer, whether formally or informally. The Authority contended nevertheless that there was no practical difference between that situation and the present, the Authority simply deciding here not to consider the request for a variation at all. 45 It is important to bear in mind, in any event, that the applicants have applied for review of the Authority's decision here under s 5(1) of the ADJR Act, and not under s 7 thereof, so that the only question with which I am presently concerned is whether or not the subject decision fulfilled the requirements of s 3(1) of the ADJR Act. In that context I would observe what Lockhart J said at 62 of his reasons for judgment in Right to Life concerning Brownsville Nominees: 'We were referred by counsel for the Secretary to the judgment of Northrop J in [Brownsville Nominees] as authority for the proposition that there was no "decision" within the meaning of s 5 of the ADJR Act because there was no duty imposed on the Secretary to make such a decision. Brownsville is not authority for that proposition...His Honour's decision was based squarely upon the duties imposed upon the Commissioner under the Assessment Act.' In similarly rejecting the application of Brownsville Nominees in the manner sought by the Secretary, Beaumont J concluded at 80 of his reasons for judgment that: 'I have difficulty accepting the submission. In the first place, as has been noted, the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed, although such decisions are also picked up…'. Moreover at 88 of his reasons for judgment, Gummow J expressed his agreement with: '…what [was] said in the reasons for judgment of the other members of the Court as to the inadequacy of [Brownsville Nominees] as authority for the proposition that in the present case there could be no decision attracting the ADJR Act unless the Secretary was under a duty to act.' I need add nothing further as to the absence of any assistance of Brownsville to the Authority. 46 A further authority referred to by counsel for the Authority in the course of argument was Carter v Minister for Aboriginal Affairs [2005] FCA 667. In that case, Ryan J held, inter alia, that the Minister's refusal to exercise his power under s 21D(2) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to make a temporary declaration of preservation was not a decision for the purposes of s 3(1) of the ADJR Act. 47 Subsections 21D(1) and (2) of that particular legislation were in the following terms: '(1) If a local Aboriginal community decides, whether after an application is made to it or on its own motion, that: (a) a place or object in the community area is an Aboriginal place or Aboriginal object; and (b) that place or object is under threat of injury or desecration; the community may advise the Minister that it considers a temporary declaration of preservation should be made. (2) On receiving advice under subsection (1) or determining on his or her own motion that a temporary declaration of preservation should be made, the Minister: (a) shall, within 14 days, cause notice of the advice or determination to be given to any person who is likely to be affected by the making of a declaration; and (b) shall give any such person an opportunity to be heard.' 48 Ryan J found that the Minister there had not received advice from a local Aboriginal community in accordance with s 21D(1), and thus the issue of relevance was whether or not the Minister's decision not to determine[e] on his…own motion that a temporary declaration of preservation should be made was a reviewable decision for the purposes of s 5(1) of the ADJR Act. The Minister had informed the applicants in writing that he would 'consider' their request for a determination on his own motion, but later told the applicants that he would not do so pending the resolution of another proceeding before this Court involving the same artefacts. His Honour found that the Minister's decision was a decision to decline to determine[e]…on his own motion and was thus made 'preparatory' to the making of a decision to determine to make a temporary declaration. Alternatively, his Honour characterised the decision declining to so determine[e] as 'a conclusion reached as a step on the way to an ultimate decision', which is not reviewable, for that reason also, thereby referring to dicta to like effect at 337 of Mason CJ's reasons for judgment in Bond. 49 The applicants submitted, in my opinion correctly, that the particular statutory framework addressed in Carter featured a 'staged process of decision-making' whereby before making the ultimate decision of imposing a temporary declaration of preservation, the Minister may make a decision to proceed with such a determination on his or her own motion, such a decision being clearly 'a step along the way'. By contrast the present legislation (ie the Radiocommunications Act) features no such stepped or staged decision-making, the power to make the ultimate or operative decision being conferred in its terms by s 111 and relevantly, s 111(1)(c). On that basis at least, Carter is distinguishable from the present case. 50 The Authority submitted next that a similar conclusion to that which it advocated here was reached by an application of the principles stated by the High Court in Griffith University v Tang (2005) 213 ALR 724. The issue there arising was whether the decision of a university to exclude a candidate for a doctorate of philosophy on account of academic misconduct was made under an enactment. In a majority finding to the contrary of that candidate's complaint, the following appears at [89] in the joint reasons for judgment of Gummow, Callinan and Heydon JJ to the negative of that proposition (their Honours' emphasis appears in non‑italics): 'The determination of whether a decision is "made… under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made… under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.' Purportedly in the light of that dicta, the Authority contended that its '… decision not to entertain [WAL's] request, however it be characterised, did not confer, alter or otherwise affect legal rights', but '… left them precisely as they were before the applicants requested the [Authority] to exercise its non-compellable discretionary power'. Even if that analysis of the Authority be correct in terms of the present circumstances of either one or both of the applicants, notwithstanding implications flowing historically from their enjoyment of transmission from the Tingalpa site, it is an analysis which in any event appears to fall short of the foregoing dicta in Griffith University that '… it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise'. I would add that counsel for the Authority conceded during the hearing that Griffith University would be of no assistance to him if I were to find that the Authority had in fact exercised its power under s 111, as opposed to merely declining to do so. At least the Authority's communications with the applicants in 2004 point to the former of those propositions as being the case, as do the Authority's file notes of the same year, as is I think sufficiently apparent from what I have earlier extracted therefrom. 51 The submissions of the respondent Authority sought to conclude that '[f]or all of these reasons, the decision of the [Authority's] officers was not a decision under an enactment', and was '… not, therefore, a decision to which the [ADJR Act] applies … [and] [s]imilarly, the lawfulness of the decision is not a matter arising under a law of the Parliament if it were made under a non-legislative policy'. The Authority did not elaborate on that latter submission. However it is clear that it was predicated on the Authority's construction of its decision that was contended by the applicants to be 'highly technical' and 'prefer[ring] form over substance, contrary to the remedial character of the ADJR Act'. In essence, as I have foreshadowed already, the respondent Authority contended that the 'decision' was nothing more than the refusal of its own officers to consider whether to exercise the Authority's power under s 111 of the Act, that determination having been made by the relevant officers by reference to the policies of the Authority encapsulated in NAS PIP and NAS BOP. 52 The Authority accepted that '… this Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act to determine whether the [Authority] was under a duty to consider the applicants' request to vary [AusCoast's] licence condition', but asserted that '[n]onetheless, if this Court accepts that the [Authority] was not under such a duty (and remains free from such a duty), the Court would be unable to make an order in the nature of mandamus'. Absent such an order, so the Authority further submitted, there was no proper basis for any of the relief sought by the applicants', thereby citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 411 at [44]-[48] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) and at [98]-[100] (Gaudron and Kirby JJ), in each such instance containing observations relating to the operation of s 417(1) of the Migration Act, whereby the Minister is empowered to substitute for the RRT's decision a decision more favourable to an applicant for relief, if '… the Minister thinks it is in the public interest to do so'. Once again I have difficulty in identifying any sufficiency of assistance of authority from a context involving quite different legislation; indeed s 417(7) of the Migration Act at least then explicitly stipulated that '[t]he Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.' In any event, as the applicants rightly pointed out, whether or not mandamus might be available against the Authority in relation to the operation of s 111 of the Act, relief pursuant to s 39B(1A) of the Judiciary Act for declaratory relief was sought by the applicants' amended application which Jacobson J accepted for filing in Court on 25 August 2005. I have of course earlier referred to the applicants' case for relief being framed on that basis by way of additional or alternative relief to that afforded by the ADJR Act. 53 As to what the Authority referred to as its 'related alternative motion', the Authority contended that since AusCoast is currently broadcasting from premises which are not the premises specified on the conditions of its licence, such conduct was unlawful and improper. Accordingly, in case the Court was otherwise minded to entertain a grant of relief following a substantive hearing, it was submitted that relief should be refused as a matter of discretion; since the applicants here seek to protect and validate unlawful and improper conduct, and thereby attract the operation of the maxim of equity 'he who comes into equity must come with clean hands', discussed in R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines & Remedies,(4th ed) at [3-110]. The relief presently sought by the applicants is however in the nature of administrative and not equitable relief, the applicants having not purportedly founded any case on equitable estoppel. In any event I am of course presently concerned with the Authority's notice of objection to competency. The relevance of any such matters so raised by the Authority is limited to the Court's determination of final relief, should the Authority's objection to competency fail wholly or in part. 54 I should add for completeness that in a short supplementary submission, the Authority repeated the essence of its earlier submissions, and submitted further in the alternative as follows (inter alia): 'If the court accepts that there is no duty [for the Authority to consider a request made for a variation of an apparatus licence under s 111] but considers that, nonetheless, the Authority made a decision under s 111, the matter would need to go to a substantive hearing. There would then be an argument about whether a reviewable error was made in that legislative context. There would also be a discretionary issue too.' It is sufficient for me to respond to that supplementary submission at the present stage of the proceedings by referring to the interlocutory decision upon which I have arrived below in the light of the respective submissions of the parties, which have been addressed on the basis of the Authority's objection to competency.

Conclusions 55 I am of the opinion that the Authority's objection to competency in its presently amended form must be dismissed, for reasons which I have largely foreshadowed. 56 The applicants have rightly contended that the following decisions of the respondent Authority are reviewable by the Court under and pursuant to the provisions of the ADJR Act: (i) the decision of the Authority made on 30 June 2005 under s 111 of the Act not to exercise its power to change the condition on its radiocommunications apparatus licence number 1130030 (called the 1620 licence) granted to AusCoast, such that the site for the operation of that licence be altered from 170 Kingsley Terrace Manly, Brisbane in the State of Queensland to 320 Fleming Road, Tingalpa, Brisbane in that State ('the first decision'); (ii) the further decision by the Authority made on 18 August 2005 not to reconsider the first decision under s 285(g) of the Act; and (iii) the further decision by the Authority also made on 18 August 2005 to refuse WAL's request for a statement of reasons for the first decision. 57 I am further of the opinion, to the extent that it may therefore matter, that in so far as the Authority has contended that the subject decisions of the Authority did not arise under any laws made by the Parliament pursuant to s 39B(1A) of the Judiciary Act, that further contention must also fail. 58 It will have been appreciated from observations that I have made in the course of my outline of these reasons for judgment that I would reject the contention of the Authority that its decision‑making of 30 June 2005 merely constituted a withholding from consideration of a request of either or both of the applicants to change the site condition of the 1620 licence, whether pursuant to an exercise of a discretionary function or power generally or at large on the Authority's part, or otherwise, and in particular whether by way of exercise of a discretionary power conferred under s 111 of the Act, or otherwise. The applicants, or at least WAL on behalf of both of them, in substance and in reality, applied unambiguously to the Authority on 6 August 2004 to change the site condition for the subject apparatus licence being a change which the Authority was empowered to implement pursuant to s 111 of the Act. A statutory decision‑maker does not avoid the operation of the review provisions of the ADJR Act by purporting to create, whether explicitly or implicitly, a standpoint or position involving a decliner of entry upon statutory decision-making, or for that matter of consideration of decision‑making unless the statutory scheme for decision‑making so provides (cf Carter). So much however is in reality the position or standpoint which the Authority has seemingly endeavoured to adopt and maintain. 59 Thus by way of reflection of the dictum I have cited from Bond, the communications of the Authority as evidenced from the outset by its faxed response of 16 August 2004 to the applicants' application of 6 August 2004 and thereafter, inclusive of its critical communication to WAL of 30 June 1995, the Authority indicated to the applicants the position which it had adopted or taken as inherently and essentially indicative of decision-making on its part, the same having for instance the 'character or quality of finality', and constituting and involving 'an outcome reflecting something in the nature of a determination of an application' within the scope of that dictum of Mason CJ in Bond I have earlier cited. That communication of the Authority constituted or involved a decision 'at least in a practical sense, of the issue of fact falling for consideration'. It was 'a substantive determination' as opposed to a 'procedural determination', to adopt the Chief Justice's further dictum in Bond. 60 Moreover by way of reflection of dicta I have cited from Right to Life, and in particular from that of Lockhart J at 62, I would characterise the Authority's conduct culminating in its faxed response of 30 June 2005 as similarly indicative of a conclusion having been reached by the Authority in or to the effect of the first decision postulated in the applicants' amended application filed in Court on 25 August 2005. The Authority made thereby a decision under s 111 not to effect a variation to one of the conditions it had imposed on the 1620 licence pursuant to s 107(1)(g) of the Act, namely the condition stipulating the transmission site. The Authority's communication of 30 June 2005 constituted or involved moreover the very opposite or antithesis of the decision which the applicants had been seeking from the Authority, commencing from WAL's application of 6 August 2004 made to the Authority, being a decision the implications and consequences whereof clearly and in substance affected rights and obligations of the applicants concerning the 1620 licence. 61 It follows in my opinion that the Authority's objection to competency must fail, at least for the reason that such objection is founded on the erroneous proposition that no decision has been relevantly made under an enactment, pursuant to s 3(1) of the ADJR Act. Whilst that conclusion renders unnecessary any conclusion to be reached as to whether a matter relevantly arose under any law made by the Parliament for the purpose of the operation of s 39B(1A) of the Judiciary Act,I am unable to identify any viable basis in favour of a negative response to that latter proposition of the applicants as well. It is moreover not accurate for the Authority to contend that its refusal was a decision made pursuant to a policy as opposed to an enactment, any resemblance here to the factual situation prevailing in Bedlington being merely chimerical, for the reasons that I have indicated above. 62 It follows from my foregoing conclusions that the Authority's refusal to vary the 1620 licence site condition involves a matter arising under a law made by Parliament of the Commonwealth, the legislative authority to make that decision being conferred by s 111 of the Act. Accordingly I would further find that the purported ground of objection pleaded by the Authority in the alternative, namely that '… there is no proper basis upon which to grant relief to the applicant', must also fail, owing to the availability at least of declaratory relief to the applicants for the reasons I have earlier explained. 63 Accordingly the application for review of the first decision sought by the applicants' amended application filed in Court on 25 August 2005 must proceed to a final hearing. 64 It follows moreover, in the light of all of my foregoing findings, that the further applications to review the Authority's decision of 18 August 2005 not to reconsider its prior principal decision of 30 June 2005, and also the Authority's yet further decision made at the same time to refuse WAL's request for a statement of reasons in respect of the first decision, must also proceed to a final hearing, the first decision not being one excluded from the operation of s 13 of the ADJR Act. 65 I should add for completeness that the further concluding contention raised by the Authority in any event to the effect that since AusCoast presently broadcasts from premises at Tingalpa which are not the premises specified in the conditions of the 1620 licence, being conduct asserted by the Authority to be 'unlawful and improper', the Court should as a matter of discretion refuse that relief. That subject must be a question for another day, and is irrelevant to the issue of competency per se for the reasons I have already indicated. Doubtless on that further occasion, the applicants would seek to pursue in more detail the circumstances and implications of the conduct of the Authority relating to the variation of the site condition on the 1611 licence to the Bracken Ridge Reservoir transmission site, being a conceivable issue apparently to be raised by the applicants from which I would necessarily withhold from further comment at this interlocutory stage of the proceedings. Whether that subject is in any event a matter for legitimate consideration in the context of the administrative relief sought by the applicants would be a matter for submission at that further hearing. 66 The Authority having failed on what has been analogous to a demurrer to the applicants' cause of action, I see no good reason in principle why the applicants should not have the benefit of an award of costs in their favour of and incidental to the present application. 67 The proceedings will be stood over to a date to be fixed by agreement by the parties, or by the Court in the event that no agreement is reached, for the purpose or making such declarations and orders as may be appropriate to give effect to these reasons for judgment. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 16 January 2006 Counsel for the First and Second Applicants: Dr J Griffiths SC

Solicitor for the First and Second Applicants: Blake Dawson Waldron

Counsel for the Respondent: S Lloyd

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 28 October 2005

Date of Judgment: 16 January 2005