FEDERAL COURT OF AUSTRALIA

Harbour Radio Pty Limited v Australian Communications and Media Authority [2015] FCA 371

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    Each of these proceedings concern contentions by the applicant that the respondent (“ACMA”) has exceeded, and proposes to exceed, its jurisdiction and powers by investigating, or continuing to investigate, concerns arising from statements made by Mr Alan Jones on commercial radio.

The statutory scheme

2    The Broadcasting Services Act 1992 (Cth) (“the Act”) provides for licensing of commercial radio operators. The applicant holds such a licence and operates in New South Wales under the call sign “2GB” and in Queensland under the call sign “4GR”. Mr Jones is one of a number of commentators who offer personal opinions about matters thought to be of interest to his audience.

3    Section 123(1) of the Act provides for the development of codes of practice for the broadcasting industry, in consultation with ACMA, which may also deal with how to handle complaints that a code has been breached.

4    Sections 147, 148 and 149 make up Division 1 of Part 11 of the Act and deal with particular types of complaints. Sections 147 and 148 provide as follows:

147    Complaints relating to offences or breach of licence conditions

If a person believes that another person who is providing a broadcasting service has:

(a)    committed an offence against this Act or the regulations; or

(aa)    breached a civil penalty provision; or

(b)    breached a condition of a licence or a class licence;

the person may make a complaint to the ACMA about the matter.

148    Complaints under codes of practice

If:

(a)    a person has made a complaint to a provider of broadcasting services on a matter relating to:

(i)    program content; or

(ii)    compliance with a code of practice that applies to those services and that is included in the Register of codes of practice; and

(b)    if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and

(c)    either:

(i)    the person has not received a response within 60 days after making the complaint; or

(ii)    the person has received a response within that period but considers that response to be inadequate;

the person may make a complaint to the ACMA about the matter.

5    At the time of the decisions which are challenged in the present proceedings (and until 16 October 2014), s 149 provided:

149    Investigation of complaints by the ACMA

(1)    Subject to subsection (2), the ACMA must investigate the complaint.

(2)    The ACMA need not investigate the complaint if it is satisfied that:

(a)    the complaint is frivolous or vexatious or was not made in good faith; or

(b)    in the case of a complaint referred to in section 147—the complaint does not relate to:

(i)    an offence against this Act or the regulations; or

(ia)    a breach of a civil penalty provision; or

(ii)    a breach of a condition of a licence.

(3)    The ACMA must notify the complainant of the results of such an investigation.

6    Since 17 October 2014, s 149 has provided:

149    Investigation of complaints by the ACMA

The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.

7    However, it is the previous version of s 149 which requires attention in each of the present proceedings.

8    Part 13 of the Act deals with “Information gathering by the ACMA”. Section 168 (which commences Division 1), s 170 (which commences Division 2) and s 182 (which commences Division 3) provide:

168    Obtaining of information by the ACMA

(1)    In informing itself on any matter relevant to its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005), the ACMA:

(a)    may consult with such persons, bodies and groups as it thinks fit, and may form consultative committees for that purpose; and

(b)    may conduct investigations and hold hearings; and

(c)    may otherwise inform itself in any manner it thinks fit.

(2)    Subject to any directions by the Minister under this Part, the procedure that the ACMA adopts in informing itself on any matter relevant to those functions is to be that which the ACMA considers:

(a)    will be the quickest and most economical in the circumstances; and

(b)    will also promote the due administration of this Act.

170    Investigations by the ACMA

The ACMA may conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.

182    Power to hold hearings

The ACMA may hold hearings for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.

9    There are a series of procedural provisions in Division 2 which invest ACMA with particular powers and discretions in connection with the conduct of an investigation. In Division 3 and Division 4 of Part 13 there are a series of procedural provisions in connection with hearings.

10    In both investigations and hearings ACMA may summons persons and documents; it may take evidence on oath or affirmation and require answers to questions. In an investigation, examination of a person is generally in private (s 175); hearings are generally held in public (s 187).

11    So far as investigations are concerned, it will be noted that s 149 of the Act at the time imposed an obligation on ACMA to investigate a complaint in stated circumstances, whereas s 170 provides it with a broader discretion to conduct investigations for the purpose of its statutory role.

12    ACMA is constituted under the Australian Communications and Media Authority Act 2005 (Cth) (“the ACMA Act”). Section 10 of the ACMA Act states the “broadcasting, content and datacasting” functions of ACMA which are referred to in ss 168, 170 and 182 of the Act. Those functions include:

10    ACMA’s broadcasting, content and datacasting functions

(1)    The ACMA’s broadcasting, content and datacasting functions are as follows:

(a)    to regulate broadcasting services, internet content, designated content/hosting services and datacasting services in accordance with the Broadcasting Services Act 1992;

…

(i)    to assist broadcasting service providers and datacasting service providers to develop codes of practice that, as far as possible, are in accordance with community standards;

(j)    to monitor compliance with those codes of practice;

(k)    to develop program standards relating to broadcasting in Australia;

(l)    to monitor compliance with those standards;

(m)    to monitor and investigate complaints concerning broadcasting services (including national broadcasting services) and datacasting services;

…

(o)    such other functions as are conferred on the ACMA by or under:

…

(ii)    the Broadcasting Services Act 1992; or

…

…

(s)    to do anything incidental to or conducive to the performance of any of the above functions.

(Emphasis in original.)

13    Section 10(2) of the ACMA Act provides:

(2)    An expression used in this section that is also used in the Broadcasting Services Act 1992 has the same meaning in this section as it has in that Act.

14    The broadcasting services which are referred to in s 10(1) of the ACMA Act are, therefore, ones which deliver television programs or radio programs (s 6 of the Act). Section 11 of the Act identifies seven kinds of broadcasting services, including “commercial broadcasting services” (s 11(b)). Section 14 of the Act provides that commercial broadcasting services are ones that appear to be intended for the general public and meet stated conditions (e.g. they are made available for free, are operated for profit, are usually funded by advertising revenue, etc). Mr Jones’ broadcasts are ones which fell within this class. Section 10(1)(m) of the ACMA Act, at least, in conjunction with s 170 of the Act appears, therefore, to permit investigations into complaints about programs such as Mr Jones’ but that hypothesis requires closer examination.

Codes of Practice

15    Codes of Practice for commercial radio have been developed (Commercial Radio Australia Codes of Practice, September 2013 (Cth)) (“the Codes”).

16    Code of Practice 2 deals with news and current affairs programs. Clause 2.2 of Code of Practice 2 provides:

CODE OF PRACTICE 2:

NEWS AND CURRENT AFFAIRS PROGRAMS

Purpose

The purpose of this Code is to promote accuracy and fairness in news and current affairs programs.

…

2.2    In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a)    factual material is reasonably supportable as being accurate; and

(b)    substantial errors of fact are corrected at the earliest possible opportunity.

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

…

17    Code of Practice 5 deals with the making and handling of complaints. Those parts of Code of Practice 5 relevant to the present proceedings are as follows:

CODE OF PRACTICE 5:

COMPLAINTS

Purpose

The purpose of this Code is to prescribe:

(a)    the method of handling complaints made by members of the public to licensees regarding compliance with these Codes; and

(b)    the manner of reporting by the commercial radio industry to ACMA on complaints so made.

Complaints

5.1    For the purposes of this Part, a complaint is an assertion:

(a)    made in writing by letter or fax by a person who signs the letter or fax and provides his or her name and address or, where the licensee has technological capacity, by an online electronic complaint form in which identifying information of the complainant is required;

(b)    to a licensee or a person at the radio station concerned who is acting with the apparent authority of the licensee;

that the licensee has broadcast matter which, in the opinion of the complainant, breaches these Codes. Complaints need not specify the particular section of the Code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.

5.2    The licensee must make appropriate arrangements to ensure that complaints are received and recorded by a responsible person during normal office hours.

Telephone Comments

5.3    Licensees welcome telephoned comments from listeners, which they regard as valuable feedback on reactions to their service.

5.4    Listeners who telephone a station alleging a breach of the Codes, and who wish to make a complaint, will be asked to make the complaint in writing, in accordance with the provisions of clause 5.1.

Advice in Writing

5.5    Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.

5.6    The response must inform the complainant that he or she has the right to refer the complaint to the ACMA if the complainant is not satisfied with the response of the licensee.

Stale Complaints

5.7    If a complaint is made more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged to comply with this Code of Practice 5.

Unwarranted Complaints or Anonymous Material

5.8    The licensee must make every effort to resolve complaints made in accordance with this Code, except where the complaint is, in the reasonable opinion of the licensee, frivolous, vexatious or an abuse of the complaint process under the Code.

5.9    The licensee is under no obligation to respond to or record complaints provided anonymously to the licensee or not made in accordance with this Code.

…

The proceedings

18    The factual foundation for the two present proceedings is different, but they require consideration of many of the same aspects of the statutory scheme, and of the Codes.

NSD 1086 of 2014

19    Mr Jones’ weekday radio broadcast on 2GB is heard between 5.30 am and 9.00 am. On 24 September 2013, at about 7.15 am, Mr Jones made remarks about a forthcoming (but not yet publically released) report of a United Nations body, the Intergovernmental Panel on Climate Change (“the IPCC”). The remarks were based on a report in The Australian newspaper published on 16 September 2013.

20    Mr Jones suggested that the draft IPCC report would correct an estimate of global warming trends given in a 2007 report from an increase of 0.2 degrees centigrade every decade to 0.12 degrees centigrade every decade, a correction which he suggested revealed “almost a 100% error”.

21    The figure published by the IPCC in 2007, which corresponded to the figure of 0.12 degrees in the draft report, was 0.13 degrees. The figure of 0.2 degrees related to a different measure. The report in The Australian (and other news sources) was incorrect.

22    At about 8.45 am, Mr Jones made further comments about the issue, beginning his remarks by saying they were a correction of his earlier remarks. The comments began by reporting a correction to the 16 September 2013 report made in The Weekend Australian newspaper on 21 September 2013. Mr Jones’ further remarks went on to assert that the IPCC had nevertheless made an “admission” that “temperatures have in fact all but stopped rising” and that global warming had slowed to 0.05 degrees Celsius, “below the long term average of 0.12”. He said, “so basically the temperatures have all but stopped rising”.

23    ACMA received complaints from a Ms Webb and a Mr Mansford said to have been made to the applicant by Ms Webb on 1 October 2013 (which the applicant denied receiving at all) and by Mr Mansford on 3 October 2013.

24    Ms Webb’s complaint, she said, was made using a “Listener Complaint Form” to which was attached a typed note. She said they were sent together by facsimile to a nominated number. As I have said, the applicant denied receipt. No verification of transmission was provided, then or later.

25    Mr Mansford’s complaint was made via the internet to a central complaints facility. It was acknowledged by the applicant’s solicitors on 14 November 2013.

26    On 28 November 2013, Mr Mansford was advised by the applicant:

28/11/2013

David Mansford

[address]

Dear Mr Mansford

Complaint under Commercial Radio Australia Codes of Practice & Guidelines (Code)

I refer to your complaint received via our electronic complaints system on 3 October 2013 at 4:46pm.

Application of the Code

1.    You have identified that your complaint is made under the Code. 2GB takes your complaint, and its obligations relating to the Code, very seriously, Set out in this letter is 2GB’s response to your complaint.

Consideration of Complaint

2.    You have stated that your complaint relates to a broadcast by Mr Alan Jones AO on 24 September 2013.

3.    In your complaint, you state that Mr Jones was “lying about the IPCC Report and global warming. He spoke despite Chris Smith making similar incorrect comments and later admitting his errors.”

4.    You have not identified a particular clause of the Code which you say is breached. However, clause 5.1 of the Code does not require a complainant to do so. Clause 5.1 requires only that the complaint adequately identify the material broadcast and the nature of the complaint.

5.    While your complaint appears to be alleging that a factual statement was incorrect, 2GB is of the view that your complaint does not adequately identify the material broadcast for the following reasons:

a)    The statement of fact which you allege to be incorrect has not been identified.

b)    Your reference to Chris Smith’s programme does not appear to be accurate. Mr Smith broadcast many programmes in September 2013 referring to climate change, however, to 2GB’s knowledge, he has not made, or admitted, any errors in those broadcasts.

6.    2GB is therefore not required to respond to your complaint under the Code.

7.    Given that you have identified the ABC TV Media Watch programme as how you heard about the broadcast, we have attached for your reference a note containing 2GB’s response to allegations made in that programme.

8.    Clause 2.2 will be taken not to have been breached where a correction is published which is adequate and appropriate in all the circumstances. In the attached note, you will see that Mr Jones did in fact broadcast a correction shortly after making the statement discussed in that programme. It follows that 2GB is of the view that there was no breach of clause 2.2 of the Code.

Proposed Action

9.    It follows that 2GB is satisfied that even if it were required to respond to your complaint, there has been no breach of the Code. A further correction is therefore not warranted in the circumstances.

Yours Faithfully

Alessandra Steele

General Counsel

(Emphasis added.)

27    The applicant’s contention that it complied with cl 2.2 of the Codes in a way which avoided breach of cl 2.2(a) was repeated to ACMA. The contention will require further attention, but only after some more fundamental questions of statutory construction have been resolved.

28    As I have said, Ms Webb and Mr Mansford each complained to ACMA. Each complaint was based on cl 2.2 of the Codes. Ms Webb also complained of lack of compliance with cl 5.5 of the Codes because she received no response from the applicant. However, ACMA in due course accepted that transmission of the complaint to the applicant had not been verified.

29    The applicant was advised of the complaints to ACMA by email on 17 December 2013. ACMA informed the applicant that it was responding to the statutory direction in s 149 of the Act.

30    The applicant responded on 19 December 2013 to the effect that ACMA had no power to proceed under s 149 of the Act. In the case of Mr Mansford’s complaint, that was because it was said not to comply with s 148 of the Act because it failed to adequately identify the material broadcast, as required by cl 5.1 of the Codes. In Ms Webb’s case, it was because there was no record of any complaint being received.

31    On 7 March 2014, after considering those contentions, ACMA advised the applicant that it proposed to investigate the complaints under s 170 of the Act “for the avoidance of doubt”. ACMA did not say whether it was also proceeding in response to an obligation in s 149.

32    On 26 May 2014, ACMA provided the applicant with a copy of a Preliminary Investigation Report in which a finding was recorded that the applicant had breached certain provisions of the Codes, including cl 2.2(a), as well as cll 5.5 and 5.6 in the case of Mr Mansford because the applicant’s response to him was “outside the 30 day timeframe” and did not tell him he could complain to ACMA. The Preliminary Investigation Report referred only to a power in s 170 and not to any obligation arising from s 149.

33    On 19 June 2014, the applicant responded to the Preliminary Investigation Report. It contended that it was not open to deal with breaches of the Codes under s 170 of the Act, or convert the original investigation into one under s 170 of the Act. There were further procedural issues raised, particularly with respect to cll 5.5 and 5.6 of the Codes. The applicant also took issue with the proposed finding of breach of cl 2.2 of the Codes.

34    On 25 September 2014, ACMA provided its final investigation report. The final report contained no adverse findings under cll 5.5 or 5.6. The final report also referred only to a power in s 170 and not to any obligation arising under s 149. The letter forwarding the final report responded to a number of the contentions advanced by the applicant, and indicated that ACMA did not accept them.

35    The finding made in the final report was:

Finding

The ACMA finds that the licensee:

•    did not make reasonable efforts to ensure that factual material was reasonably supportable as being accurate

•    did not broadcast a correction which was adequate and appropriate in all circumstances.

Accordingly, the licensee breached clause 2.2(a) of the Codes.

36    In its Reasons, which followed, ACMA identified the following statements by Mr Jones (shown in bold hereunder) as factually inaccurate within the meaning of cl 2.2(a) of the Codes:

[...] What has been leaked tells us the report will admit that its computer drastically overestimated rising temperatures and over the past 60 years the world in fact has been warming at half the rate claimed in the previous IPCC report in 2007. More importantly, according to reports in British and US media, the draft report seems to suggest that global temperatures are less sensitive to rising levels of atmospheric carbon dioxide than was previously thought.

The 2007 Assessment Report said the planet was warming at the rate of 0.2 of a degree centigrade every decade. Well, the update now says the true figure was 0.12, almost a 100% error. The IPCC for a week has been denying it’s locked in crisis as they talk to scientists and don’t know what to do about the fact that their former theories of climate change have been disproven.

[...] It [the IPCC] dramatically overestimated rising temperatures in the past and it’s clear that carbon dioxide is not impacting on global temperatures in any major way. As I said the IPCC’s 2007 report claimed the earth was warming at the rate of 0.2 of a degree Celsius every 10 years. The latest report reduces that figure to 0.12 of a degree, 12 hundredths of a degree since 1951, per decade by the way, per decade since 1951 [...]

[...]

Now we’re about to learn that the IPCC has dramatically overestimated rising temperatures in the past. Got it wrong by about 100%.

[...]

(Emphasis in original.)

37    The Report went on:

The ACMA is of the view that these statements were specific, unequivocal and capable of independent verification. The ACMA is satisfied that they would have been understood by the ordinary, reasonable listener as statements of fact made by Mr Jones.

The statements were also inaccurate.

38    Then the Report considered whether reasonable efforts had been made to ensure accuracy and concluded:

Here, a range of credible material threw doubt on the original article from The Australian. This included a visible correction in the weekend edition of the same newspaper prior to the broadcast. Moreover, the inaccuracy leading to that correction had, itself, received broad press coverage prior to the broadcast.

Accordingly, the ACMA considers that the licensee did not use reasonable efforts to ensure that factual material was reasonably supportable as being accurate.

On this basis, the ACMA finds that the licensee did not meet the requirements at clause 2.2(a) of the Codes.

39    Next, ACMA considered whether there had been a correction that was adequate and appropriate in all the circumstances. The Report said:

The correction was placed appropriately and was timely. Placement of a correction in the same program and within such a short time after the original statement is commendable.

The correction itself, however, must be clear. In this case it was not. …

and concluded:

This lack of clarity leads the ACMA to the view that the licensee did not broadcast a correction that was adequate and appropriate in all the circumstances.

Accordingly, the ACMA finds that the licensee breached clause 2.2(a) of the Codes.

40    In view of the fact that a challenge is pressed in the proceedings to the conclusions about the adequacy and appropriateness of the correction, it will be necessary to return to that issue and I will set out then more fully what Mr Jones said in the second segment upon which ACMA focussed.

41    On 15 October 2014, in response to a request from the applicant, ACMA advised that it did not intend to publish its final report pending the outcome of any judicial review proceedings, except on five days’ notice to the applicant. That remains the present position.

NSD 1104 of 2014

42    Between 12 November 2013 and 13 December 2013 in broadcasts on 4GR, Mr Jones made a number of comments about a proposal to build an airport at Toowoomba in Queensland. Mr Jones’ comments suggested a serious lack of prudential attention on the part of Toowoomba Regional Council, similar to the prudential lapses of the New South Wales government with respect to water allocations to Mr Eddie Obeid and his family.

43    Mr Jones’ criticism of the proposed airport was directed in large part at Mr John Wagner and his family and associated business interests.

44    On 20 December 2013, Mr Paul McCowan, a principal of a firm of solicitors (McInnes Wilson) acting for Wagners Investments Pty Ltd made a complaint on behalf of that company, supported by a 24 page schedule of detailed particulars. On 29 January 2014, McInnes Wilson confirmed to the applicant that the complaints were made by “Wagners Investments Pty Ltd including its directors and members”.

45    On 26 February 2014, the applicant responded. It said that the complaints were not valid because they were not signed by the complainant. It said they were an abuse of process and were vexatious. The foundation for those contentions appears to be that the complaints were detailed, were made by lawyers and were made without first contacting Mr Jones. It was suggested that the complaint was intended to “stifle legitimate criticism”.

46    On those various grounds, the applicant said it had no obligation to investigate the complaints. However, it went on, in some detail, to deny any relevant inaccuracy.

47    On 14 March 2014, Mr McCowan made a complaint to ACMA on behalf of “Wagners Investments Pty Ltd and its Directors and Shareholders”, relying upon the complaint earlier made to the applicant. On 9 April 2014, ACMA advised the applicant that it had commenced an investigation of the complaint under s 149 of the Act.

48    On 1 May 2014, the applicant made representations to ACMA to the effect that the complaint was defective. The deficiencies were said to be:

1.    it is made by more than one complainant;

2.    even if that was available to the complainants, the other complainants are not identified by name; and

3.    none of the purported complainants signed the letter.

49    The consequences of the alleged deficiencies was said to be that ACMA lacked jurisdiction and any investigation would be ultra vires (beyond power).

50    On 17 June 2014, ACMA informed the applicant that it did not share the view expressed by it on 1 May 2014 but had decided to conclude that investigation and commence one under s 170 of the Act into the same matter. The applicant protested.

51    On 30 September 2014, ACMA informed the applicant that it had formed the view that it was obliged to continue to investigate the complaint under s 149 of the Act and that it would, therefore, conduct its investigation under both s 149 and s 170 of the Act.

52    Thereupon, the applicant asked ACMA to suspend its investigation, and not insist on production of a large amount of material it had sought, until proceedings in this Court had been concluded, but ACMA declined. The request was repeated but again refused. To this point, however, no Preliminary Investigation Report has been produced.

The statutory foundation for the proceedings

53    Each of the proceedings was commenced under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). Each of the proceedings raises the following issues in the context of the particular complaints and histories to which I have referred:

    Was there a relevant complaint which might “trigger” an investigation under s 149 of the Act?

    Was it permissible to commence an investigation under s 149 of the Act, but then proceed (in whole or in part) under s 170 of the Act with respect to the same matters?

    In NSD 1086 of 2014, did ACMA misconstrue cl 2.2 of the Codes in particular respects?

    In NSD 1104 of 2014, did ACMA misconstrue s 148 of the Act and cl 5.1 of the Codes to permit a new class of complainant, namely agent and/or corporations?

54    Although there is a large area of overlap with respect to the legal issues which arise for consideration, confusion will be best avoided if I address those issues, to the extent necessary, in each proceeding individually and by reference to the particular facts and circumstances. I shall call these the “Webb/Mansford proceedings” and the “Wagners proceedings”.

The Webb/Mansford proceedings

55    In its final investigation report, ACMA accepted that Ms Webb had been unable to establish that she had sent her complaint by facsimile to the applicant – e.g. by providing a facsimile transmission report. I accept, therefore, that no obligation arose under s 149 to investigate her complaint. I will need to consider whether there was a discretion to do so under s 170 of the Act.

56    In the case of Mr Mansford, the argument is that he failed to make a valid complaint because contrary to cl 5.1 of the Codes, he failed to “adequately identify the material broadcast and the nature of the complaint” (quotes and italics in the applicant’s written submissions).

57    ACMA’s finding about this was as follows:

Complainant 2

In its response to this complainant, the licensee argued that it was not required to respond to his complaint under the Codes because he did not adequately identify the material broadcast for the following reasons:

•    he did not identify the statement of fact he alleged to be incorrect

•    his reference to Chris Smith’s program did not appear to be accurate, as Chris Smith has not made, or admitted, any errors in broadcasts referring to climate change in September 2013.

In reviewing the complaint, the ACMA considers that it is arguable that the complainant adequately identified the broadcast material. The ACMA notes that the complaint made to the licensee:

•    identified the date of broadcast – 24 September 2013

•    identified the time of broadcast – 7:00am to 8:00am

•    asserted that it was a ‘breach of the Commercial Radio Australia Codes of Practice’

•    asserted that ‘Alan Jones [lied] about the IPCC report and global warming’ and ‘spoke despite Chris Smith making similar incorrect comments and later admitting his errors’.

While the complainant did not indicate a specific statement he considered to be incorrect, it is relatively clear from his complaint that he was asserting a breach of the accuracy provision of the Codes in regard to comments made by Mr Jones on the rate of global warming reported by the IPCC.

The relevant comments were made by Mr Jones at approximately 7.15am and were distinct and easily identifiable, as Mr Jones clearly referred to the ‘IPCC report’ and to ‘global warming’. The ACMA also notes that the comments made by Mr Jones concerning the IPCC report were centred on the revised figure of global warming (0.12 degrees Celsius) and the (erroneous) comparison of this figure with a rate of global warming from the 2007 report (0.2 degree Celsius). The same erroneous comparison made by several media organisations had received wide media coverage and would have provided further context and clarification concerning the broadcast material that was the subject of the complaint.

Further, the complainant stated in his complaint to the licensee that he heard about the relevant broadcast (in which Mr Alan Jones discussed the draft IPCC findings) on Media Watch. The ACMA notes that on 30 September 2013, Media Watch had again discussed media coverage of the draft IPCC findings, including the relevant broadcast of 24 September 2013, and identified incorrect statements made by Mr Jones regarding the draft IPCC report. It also asserted that Chris Smith had also made similar statements. The reference to Media Watch, together with the other complaint information, further assists in identifying the relevant material broadcast. That is the case regardless of whether or not Mr Chris Smith had in fact made similar statements.

Accordingly, the ACMA is of the view that the complaint arguably contained adequate information to adequately identify the broadcast material and was made in accordance with the Codes.

However, it is not necessary to reach a final view about this issue because, even if it is assumed that the complaint was validly made, the licensee responded to the complainant in accordance with the requirements at clauses 5.5 and 5.6 of the Codes. The licensee initially acknowledged receipt of the complaint, at which point it advised the complainant that a final response would be provided and that he had the right to refer the matter to the ACMA if he was not satisfied with its final response. The licensee subsequently provided the complainant with a substantive response within the required timeframe.

(Emphasis added.) (Footnote omitted.)

58    I can see no error of law in ACMA’s conclusions, so far as they went. The applicant was in no sense disabled from responding to this complaint on the merits or misled about its true nature or content. The applicant plainly understood what the relevant statements were and set out to defend them. In my view, the material and the nature of the complaint were “adequately” identified for that purpose and the complaint was a valid one.

59    It would follow that ACMA was obliged by s 149 to investigate the complaint. ACMA purported to do so pursuant to s 170. An administrative tribunal does not lack power or jurisdiction if it does something it had power to do:

… simply because it thought that its power was conferred by one section whereas in truth it was given by another.

(R v Moore; Ex parte Graham (1977) 138 CLR 164 at 173).

60    It will become apparent from the later discussion that I accept ACMA’s submission that s 149 was not, in any event, the relevant source of power. Section 149 imposed an obligation but the obligation has been discharged, subject to Mr Mansford being notified of the results of the investigation.

61    The next question which arises is whether it was permissible to investigate Mr Mansford’s complaint under s 170, whether or not there was an obligation to do so under s 149. When I have dealt with that issue I will return to consider the position about Ms Webb’s complaint to ACMA.

62    The applicant argued that there was no power for ACMA to investigate any complaint (or possible complaint) about a code of practice under s 170 of the Act, but only (if at all) under the combined operation of ss 148 and 149 – i.e. in response to an earlier complaint made first to a broadcaster. This was said to reflect a statutory purpose of “co-regulation”.

63    This argument appeared to me to proceed upon two different, and contradictory, foundations. I shall deal with each of them. One foundation was that s 170 simply did not extend to the subject matter of complaints or potential or possible complaints about codes of practice. The other foundation was that the operation of s 170 was confined by the more limited operation of ss 148 and 149. This second aspect of the argument did not depend on the existence of a valid complaint, where s 149 obliged an investigation. It extended to the proposition that the whole subject matter of complaints (or possible complaints) about codes of practice was exhaustively dealt with by ss 148 and 149 of the Act, to the complete exclusion of s 170 of the Act.

64    I propose to consider this issue first by reference to the statutory scheme itself and point out some matters which will also be relevant to bear in mind when I refer to the legal authorities upon which the applicant relied. I also propose to assume, initially, that s 149 and s 170 are each a source of some power to investigate, as the applicant argued. I will need to revisit that assumption.

65    The parties agreed that there are no different statutory consequences which arise from an investigation obliged by s 149 or from one permitted by s 170. That is a most fundamental matter to bear in mind when the authorities are referred to.

66    In my view, the first variant of the argument is answered conclusively (as ACMA submitted) by simply reading s 170 of the Act together with s 10 of the ACMA Act. Subject to consideration of the second variant of the argument, there is no doubt in my view that the power of investigation given by s 170 of the Act extends to matters which might possibly be the subject of a complaint to a broadcaster or to ACMA under s 148, or which actually are. Such matters fall comfortably within the notion of monitoring compliance with codes of practice in s 10(1)(j) of the ACMA Act and within the function to monitor and investigate complaints concerning broadcasting services in s 10(1)(m) of the ACMA Act, at least. Those functions are harmonious with the operation of s 168 of the Act and its explicit reference to conducting investigations and holding hearings and with the extensive catalogue of procedural powers which are prescribed for those purposes.

67    Section 168(1) uses the same point of reference as s 170 (as also does s 182, which gives the power to hold hearings). Section 168(1)(b) refers to ACMA conducting investigations and hearings. Those are fairly obviously references to investigations and hearings conducted pursuant to the specific grants of power in s 170 and s 182.

68    In my view, ss 168, 170 and 182 are general grants of power to ACMA to enable it to perform the functions referred to in s 10 of the ACMA Act. Those functions extend (by virtue of the ACMA Act and the Act) to investigating complaints required to be investigated by s 149. That investigative process falls comfortably within the grant of power given by s 170, and includes access to the range of procedural powers granted by Division 2 of Part 13 of the Act for that purpose.

69    If, as the applicant argued, the powers in Part 11 of the Act are self-contained, or exclusive of the powers in Part 13, one consequence might be that the procedural powers in Part 13 were not available to ACMA in the context of an investigation conducted by reason of s 149. At least that would be so if the two Parts operated in isolation from each other.

70    I can see no reason at all why the procedural powers in Division 2 of Part 13, which clearly apply to investigations conducted by ACMA under s 170, would not also be available in an investigation of a complaint required by s 149, which includes not only complaints under codes of practice first made to a broadcaster under s 148 but also complaints made to ACMA directly under s 147. The character of such complaints, alone, suggests that ACMA was intended to have the usual range of procedural powers to compel co-operation.

71    If all those procedural powers in Division 2 of Part 13 are available in an investigation required by s 149, I can see no reason why s 170 should be thought to stand apart.

72    In my view (and subject to the argument to be addressed next), the conjunction of s 170 of the Act and s 10(1)(m) of the ACMA Act would, without more, provide ACMA with a discretion and power to investigate a complaint (a general term not defined in the ACMA Act or the Act) concerning a broadcasting service, whether or not an obligation arose to investigate the complaint under s 149 of the Act.

73    For those reasons, I reject the argument that s 170, properly construed, does not on its face or in terms extend to an investigation required by s 149. I therefore reject the submission that s 170 is confined at the outset in the way the applicant argued. Then it is necessary to consider whether, as a general power, s 170 should be read down by reference to, or to accommodate, the specific operation of ss 148 and 149.

74    The applicant’s second proposition relied on the doctrine of generalia specialibus non derogant as reflected in High Court authorities like Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (“Anthony Hordern”); R v Wallis (1949) 78 CLR 529 (“Wallis”); and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (“Nystrom”).

75    The passage usually cited from Anthony Hordern is from the judgment of Gavan Duffy CJ and Dixon J (at 7) as follows:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

76    A number of important points should be noted. First, the particular provision must be a source of power. Secondly, it must appoint a particular mode of exercise of the power. In such a case a less restricted operation of the power will not be available. The principle embodied in this passage rests upon an implication that prescribed statutory restrictions upon a particular power cannot be avoided by resort to a more general one.

77    The question for examination usually concerns the statutory limitations which accompany the exercise of a power and whether those limitations, qualifications, conditions or restrictions would be avoided (Anthony Hordern at 7) or some statutory precaution or safeguard might be disregarded or rendered ineffective (Anthony Hordern at 8).

78    The first difficulty with the applicant’s argument is that even if s 149 (which states an obligation) and s 170 (which gives a power) have different methods of engagement (e.g. a complaint under s 148 or the exercise of a discretion by ACMA), that does not signify that the mode of exercise of a power of investigation (once engaged) has been relevantly limited (e.g. by s 148). It certainly does not signify that the outcome will be different, assuming both powers are apparently available.

79    The applicant relied upon my earlier judgment in Harbour Radio Pty Ltd v Australian Communications and Media Authority (2010) 184 FCR 537 as contributing to its argument on this point, but the reliance was misplaced. The issue there being considered was whether ACMA was obliged to investigate the particular complaint in that case (see at [27], [29], [36]). It was not necessary in that case to address an argument by ACMA that powers elsewhere in the Act (or in other legislation) were also available to it (see at [40]).

80    In Wallis, the question was whether a clause in an award, providing for a monopoly in employment of members of a union, and effectively for compulsory unionism, could be valid under a general power in the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (s 38), having regard to specific provisions in the same statute (s 56) dealing with preference to unionists. Again, the passage normally cited is in the judgment of Dixon J. Often only the second paragraph extracted below is cited but the full passage reads:

The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.

But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. …

81    In Wallis, again, the specific provision was treated as the source (and the only source) of authority. If that principle truly applied to the present case it would mean that a power to investigate a complaint made to ACMA about non-observance of a code of practice could only arise pursuant to an obligation to do so pursuant to s 149. However, s 149 appears to me to serve a different purpose. In the form it took at the relevant time it represented a statutory guarantee that ACMA would deal with particular kinds of complaints under s 147 or s 148, including a proper and valid complaint to a broadcaster about program content or compliance with a code of practice which a complainant believed to have been erroneously handled or wrongly rejected. That statutory guarantee did not, in my view, operate as a fetter upon the general power of investigation given by s 170.

82    In Nystrom, Gleeson CJ said (of two provisions in the Migration Act 1958 (Cth)) (at [2]):

2    … The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent’s contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said.

(Footnotes omitted.)

83    Gummow and Hayne JJ in Nystrom also pointed out (at [48]) that any contention of “implied repeal” based on Anthony Hordern:

… requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands.

(Footnote omitted.)

84    Their Honours went on (at [49]):

49    … there is a confusion of ideas in compounding the doctrine of implied repeal and what was said in Anthony Hordern. That case, and the cases in this Court which have considered it, were concerned with questions of construction of two provisions, both of which remained effective in their terms, with no abrogation, by repeal, of the one by the other.

85    Their Honours then discussed Anthony Hordern in greater detail and Wallis, as well as later cases, and said (at [59]):

59    Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

(Emphasis added.) (Footnotes omitted.)

(See also Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (“the Malaysian Declaration Case”) (at [84]).

86    The applicant’s argument in this area did not depend upon the resolution of any tension, conflict or contradiction in the statutory provisions. It depended upon notions of procedural exclusivity. That is to say, that the sole statutory source of power available to investigate any issue about compliance with a code of practice was when there was a valid complaint under s 148. I do not accept this contention.

87    The applicant’s thesis appeared to depend upon the idea that, when the obligation in s 149 is read in conjunction with the conditions stated in s 148, the statutory scheme operated to protect the applicant from all but valid complaints under the Codes and, further, denied any power to ACMA to enter upon any investigation in that area at its own discretion. Its power and authority to investigate were only engaged by individual members of the public acting in a procedurally effective way.

88    The significance of a valid complaint to ACMA under s 148 is, if the other conditions are satisfied, that ACMA was obliged to investigate the complaint under the terms of s 149 applying at the time. The absence of such a statutory obligation in a particular case does not, in my view, extinguish ACMA’s power of investigation at its own discretion. Nor did the presence of a valid complaint operate to curtail the extent of an investigation which ACMA may decide to conduct at the same time under s 170.

89    The significance of an investigation conducted concurrently under s 149 and s 170 would be that a complainant must be advised of the result of such part of an investigation as is obliged under s 149 and ACMA will have the discretion mentioned in s 178 about whether a report is prepared. Also, the formal end date of each investigation will be determined in accordance with s 4(3) and (4) of the ACMA Act (to which I refer shortly). But none of those procedural differences makes any difference of substance to the availability of power.

90    I can see no reason, therefore, why a complaint made under s 148 (or any issue concerning a code of practice) might not also be considered under s 170, or why a complaint made directly to ACMA, but not to a broadcaster, would fall outside ACMA’s remit for that reason. Of course, ACMA has a discretion to investigate under s 170, whereas it had an obligation to do so in an appropriate case under s 149, but that is a different question from its power.

91    ACMA had a further answer to the applicant’s arguments which, if accepted, would avoid any real possibility of inconsistency between s 149 and s 170 of the Act. It was that s 149 of the Act should not be seen as an independent source of power at all. Rather, ACMA argued, it should be seen as imposing an obligation to exercise the power in s 170.

92    An alternative construction advanced by ACMA was that the engagement or non-engagement of s 149 on the facts of a particular case left ACMA’s discretion under s 170 unrestricted, save by reference to its own terms and statutory purpose. Acceptance of either argument would defeat the applicant’s contentions.

93    As I have already indicated, upon the thesis that s 149 and s 170 are each sources of power the alternative argument should be accepted. However, ACMA’s primary proposition seems to me to be the correct construction.

94    The ACMA Act refers, in a number of places, to the possibility of investigation by ACMA under various statutory provisions. Section 3 of the ACMA Act provides the following definition:

investigation means an investigation conducted, or proposed to be conducted, by the ACMA under:

(a)    Part 26 of the Telecommunications Act 1997; or

(b)    Part 11 or 13 of the Broadcasting Services Act 1992; or

(c)    Part 4 of Schedule 5, Part 5 of Schedule 6, or Part 3 of Schedule 7, to the Broadcasting Services Act 1992.

95    Section 4 of the ACMA Act provides for when particular investigations under various statutory provisions come to an end. Investigations under Parts 11 and 13 of the Act (i.e. under s 149 and s 170) are again separately mentioned, as are other investigations under the Act and other Acts.

96    For example, s 4(3) and (4) of the ACMA Act provided (until 16 October 2014):

4    When does an inquiry, investigation or hearing end?

…

(3)    An investigation under Part 11 of the Broadcasting Services Act 1992 ends at the end of the day the ACMA notifies the complainant of the results of the investigation under whichever of subsections 149(3) or 152(3) of that Act is applicable.

(4)    An investigation under Part 13 of the Broadcasting Services Act 1992 ends:

(a)    if the ACMA decides to prepare a report about the investigation under section 178 of that Act—at the end of the day the ACMA completes the report; or

(b)    otherwise—at the end of the day the ACMA completes the investigation.

…

97    Those and the other provisions in s 4 of the ACMA Act are relevant to particular aspects of the ACMA Act (e.g. s 21(3) which permit extension of a term of a member of ACMA to the end of an inquiry, investigation or hearing) but they do not seem to me to govern the operation of the Act, or to dictate that investigations under the Act should be seen to have a number of sources of statutory authority.

98    Part 13 of the Act, as I have already indicated, provides a large number of procedural powers to ACMA in connection with investigations and hearings. I see no reason to conclude that s 149 evinced a statutory intention that an investigation which it commanded should stand apart from investigations referred to in Part 13 of the Act – i.e. those authorised by s 170. The command in s 149 was not inconsistent with those arrangements. I accept ACMA’s argument that the source of power to investigate is in Part 13 of the Act, and in particular in s 170, and that the statutory command which was in s 149 was not a relevant source of power.

99    That further conclusion provides another reason to reject the applicant’s central premise.

100    The result of these conclusions is that ACMA was obliged to investigate Mr Mansford’s complaint under s 149 of the Act, but its investigation pursuant to s 170 also fulfilled that purpose and was not otherwise invalid.

101    ACMA was also entitled, if it chose to do so, to investigate Ms Webb’s complaint under s 170.

102    The remaining challenge was expressed as follows:

(c)    Assuming that the Respondent had any relevant power to make a determination about the Commercial Radio Australia Codes of Practice 2013 (Codes), did it err in law in misunderstanding clause 2.2 of the Codes?

The Applicant submits that the Respondent has misconstrued the relevant elements of clause 2.2 of the Codes by:

i.    failing to have regard to the particular audience of the program complained of; and

ii.    applying a standard of counsel of perfection to the requirement that the licensee take ‘reasonable efforts’ for the purposes of ensuring that (i) factual material is reasonably supportable as being accurate, and (ii) substantial errors of fact are corrected at the earliest possible opportunity within the meaning of clause 2.2 of the Codes.

103    I can see no merit at all in this argument.

104    ACMA found that the material broadcast was not accurate, and that the correction was not adequate or appropriate in the circumstances. I have set out some parts of its reasons for those findings. I see no basis to conclude that ACMA misunderstood the matters for its attention, failed to address them or made any error susceptible of review in the present proceedings. I am not asked to address the merits, and could not do so.

105    Clause 2.2 of the Codes erects two obligations. They are not identical. The obligation in cl 2.2(a) (but not that in cl 2.2(b)) is subject to the possibility of relief given in the succeeding paragraph – namely, that there is a correction (about material not reasonably supportable as accurate) which is “adequate and appropriate in all the circumstances” (my emphasis) within stated times. Because the possibility exists of compliance up to 30 days after a complaint to ACMA, it is evident that a correction might be much later than a broadcast but no doubt the timing of a correction might bear upon the judgment to be made whether it was adequate and appropriate in all the circumstances. No further attention need be given to that issue in the present case.

106    ACMA’s report said:

The adequacy and appropriateness of any correction must be judged according to all the circumstances of the particular case - which includes not only the timing and placement of the correction but the terms both of the correction and the original, inaccurate broadcast.

In a previous investigation, the ACMA indicated that an adequate and appropriate correction would ordinarily ‘involve a clear-on-air acknowledgement of the error made in a particular broadcast and a statement of the correct position, in such a way that there is a clear connection between the error made and the correction’.

The ACMA notes that the correction made by Mr Jones was flagged as a correction; it was made promptly on air (approximately one and a half hours following the initial statements); and was in substantially the same terms as the correction that had been published in The Weekend Australian on 21 September 2013.

(Footnote omitted.)

107    There was thus no issue about the timing of the correction, or about the fact that it reflected the correction made to the earlier report.

108    The comments treated by ACMA as the correction were as follows:

Correction

Earlier this morning, I just want to correct this, I made comment of a report in The Australian on Monday which said the Intergovernmental Panel on Climate Change had dramatically - this is what The Australian said - revised down the rate of global warming over the past 60 years and it said in fact the new rate of 0.12 degrees Celsius every decade is almost the same as the IPCC’s 2007 figure of 0.13 Celsius every decade over the 50 years to 2005.

Well, the real admission, my attention just has been drawn to this, in the draft is best described by saying, because deep in the article came a critical admission, a leaked draft of the report to be released on Friday by the IPCC, the UN body given a Nobel prize for its climate alarmism, admits temperatures have in fact all but stopped rising.

The Age newspaper said, warming has slowed in the past 15 years to 0.05 degree Celsius a decade, 0.05 below the long term average of 0.12 since 1951. So basically, this rise, which is trivial, according to the reports say less than 114 of a 117 leading climate models, that’s what they predicted, 114 out of 117, and I said the climate models are wrong, and as one media report said, they suggest our rising carbon dioxide admissions may not have much influence on climate after all. So from 0.05, those seem to be the correct figures, 0.05 of a degree Celsius a decade below the long term average of 0.12. So basically the temperatures have all but stopped rising.

109    The applicant argued that only the first paragraph of this extract from the broadcast should be treated as the correction. In my view, it was open to ACMA, whatever passage might contain the “correction”, to pay regard to the whole of the immediate context in which the “correction” was offered. I discern no matter susceptible of judicial review in that aspect of the decision, or in the overall evaluation which followed.

110    Having regard to the substance of the matters discussed above, it is not necessary to discuss the detailed manner in which particular provisions of the ADJR Act were said to be specifically engaged. In my view, the applicant has failed to make out any case for relief.

The Wagners proceedings

111    The first issue which requires attention here is whether there was a proper complaint to the applicant, regardless of who made it. Then it will be convenient to consider questions relating to the identity of the complainant before dealing briefly again with the interaction between s 149 and s 170 in the particular circumstances of this complaint.

112    There is no substance in any suggestion that the complaint was an abuse of process because it was long or detailed. It addressed radio broadcasts over many days where repeated allegations of impropriety and lack of prudential control were made.

113    Section 148 permits a complaint to ACMA (with which ACMA was obliged to deal pursuant to s 149) if a complaint has been made to a broadcaster “in accordance with [a] code of practice” (s 148(b)). To the extent that the complaint related to material broadcast more than 30 days earlier, the applicant was not obliged to address such aspects of the complaint. However, that does nothing to alter the fact that there was an adequate foundation for a complaint to ACMA about the remainder. The point has no practical consequence in the present case.

114    I would, therefore, reject any attack on the content of the complaint as affecting ACMA’s powers in any practical way, even if attention is confined to s 148.

115    In view of my conclusions about the availability of s 170 as a source of power to investigate, the only significance of a failure to meet any condition incorporated by s 148(b) would be that s 148 did not strictly guarantee a permitted subsequent complaint to ACMA and ACMA had no obligation to deal with it under s 149 if it was made. On the facts of the present case, that is academic.

116    Nevertheless, there is one issue raised by the applicant concerning the operation of s 148 which should be addressed. It concerns the identity of the complainant and, in particular, whether a complaint under cl 5 of Code of Practice 5 may be made by a corporation.

117    Clause 5.1 of the Codes identifies what a complaint is. Clause 5.1(a) provides that a complaint is an assertion made in writing by letter or fax by a person who signs the letter and provides a name and address. Clearly enough, that requirement is directed to a practical requirement that anonymous complaints need not be addressed.

118    Clause 5.1 of the Codes also requires that the assertion convey the “opinion” of “the complainant” that the broadcast matter breaches the Codes.

119    In the present case, a letter, attaching a written complaint, was signed by Mr McCowan, for the firm McInnes Wilson, who were acting as solicitors for Wagners Investments Pty Ltd. Strictly speaking, in my view, the signing and identification requirements were met. However, it is clear that Mr McCowan was not conveying his own opinion. He was not the complainant. The firm was acting for its client. All that was disclosed.

120    The contention that a valid complaint cannot be made by a corporation (or was not in this case) must, as ACMA submitted, be evaluated at two levels: first, by reference to the statutory provisions (ss 147 and 148 of the Act) and only then by reference to cl 5 of the Codes.

121    There is no reason to conclude that a “person” referred to in ss 147 and 148 does not ever include a body corporate (Acts Interpretation Act 1901 (Cth), s 2C). There is no “contrary intention” (Acts Interpretation Act, s 2(2)) of that general kind. Quite obviously, for example, s 147 of the Act refers to persons (e.g. “another person who is providing a broadcasting service”) in a way that may include a corporation.

122    However, under s 147, a potential complainant must hold a belief of an identified kind. Only such a person can make a complaint which may engage s 149. Section 148 is less clear, and I shall return to it shortly.

123    In Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 308 ALR 615, members of the Victorian Court of Appeal discussed the difficulty of attributing a “religious belief” to a corporate entity. The majority (Maxwell P and Neave JA) rejected the idea, although Redlich JA accepted it.

124    Maxwell P spoke of the necessity for the creation of a “legal fiction” which would permit attribution of such a belief to a corporation (see e.g. at [308] and [316]-[317]). Neave JA said (at [411]) a corporation:

cannot have a conscious state of mind amounting to a religious belief or principle.

and (at [414]):

[414]    There are numerous legislative provisions which impose criminal or civil liability on a corporation and attribute the intention or belief of an agent of the corporation to it, for the purposes of proving the corporation has the required intention or other state of mind [footnote omitted], or has a defence to liability. The existence of these provisions does not require the conclusion that a corporation is to be deemed to hold beliefs on matters such as the existence of a deity or deities, the presence of an afterlife, or in the case of Christianity, the centrality of the death and resurrection of Jesus Christ, in the absence of a specific legislative provision which requires such “deeming” to occur.269

269.    Provisions which do attribute intentions or beliefs to companies often provide for how that intention or belief is to be ascertained; see the comments on this by Bright J in Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279. An example is the defence of honest opinion provided by s 31 of the Defamation Act 2005 (Vic).

125    I think that I should apply the same reasoning to the potential operation of s 147, despite any differences between the idea of a religious belief (which is intensely personal) and belief of a failure of standards of the kind referred to in s 147 of the Act (which is less so). That restriction in s 147 would necessarily apply to s 149, so far as all or any complaints under s 147 are concerned.

126    Section 148 does not specify the necessity for a particular belief as a foundation for a complaint about program content or compliance with a code of practice. However, as I have indicated, cl 5.1 of the Codes requires that a complaint under Code of Practice 5 convey an opinion of the complainant. In my view, the reference to an opinion is sufficiently close to a belief to be a legitimate analogy for present purposes.

127    I am not satisfied that a corporation may hold an opinion of the kind to which cl 5.1 applies. I am not satisfied, therefore, that it may make a complaint to which s 148(b) applies. In my view, the preferable construction of cl 5.1 is that it may not.

128    ACMA argued that if a code of practice did not include provision for a complaint by a corporation then s 148(b) would not operate in such a case and a complaint to a broadcaster (and thence to ACMA) would be available directly under s 148 of the Act.

129    The better view, however, is that there is no reason to suppose that s 148 permits complaints about program content or compliance with codes of practice by a wider range of juristic “persons” than may make a complaint about breach of licence conditions. In my view, I should infer and imply that s 148, like s 147, is confined to individual complainants.

130    Code of Practice 5 operates quite harmoniously with this conclusion. Its purpose is to permit complaints by “members of the public”. It refers to “listeners”. It allows examination of the correctness of an “opinion” of the complainant that a relevant breach has occurred. In my view, Code of Practice 5 in its own terms does not extend to a complaint by a corporation. Nor does s 148.

131    That conclusion means that ACMA had no obligation to investigate the complaint conveyed by Mr McCowan under s 149 of the Act. The applicant had no obligation to respond to it either. However, ACMA had a discretion to investigate the complaint under s 170 of the Act if it judged that to be appropriate.

132    Each claim for relief in these proceedings must also be dismissed.

Conclusion and Orders

133    The claims for relief in both proceedings will be dismissed. ACMA should have its costs in each case.

Associate:

Dated:    23 April 2015