FEDERAL COURT OF AUSTRALIA

Nezville Pty Ltd v Australian Broadcasting Authority [2001] FCA 29

BROADCASTING AND RADIOCOMMUNICATIONS ‑ Planning of radio spectrum ‑ Determination of Licence Area Plan (LAP) by Australian Broadcasting Authority ‑ LAP lists numbers of national, commercial, community and open narrowcasting (ONC) radio services to be available for broadcasting ‑ Whether in determining LAP Authority obliged to take into account content and merits of existing ONC licence holders’ programs ‑ In determining LAP Authority obliged to make provision for wide public consultation ‑ Whether Authority did so ‑ Person affected by LAP invited to comment within seven days on proposed change to draft LAP ‑ At request of person affected ten days allowed for comment ‑ Whether extended time limit denial of procedural fairness ‑ Statement in LAP that provider of ONC services “will be determined by use of price based allocation system” ‑ Authority no power to make such determination ‑ Whether a decision of Authority or statement of expectation ‑ Source of Authority’s power to make ONC services available.

Broadcasting Services Act 1992 (Cth) ss 23, 26, 27, 34

Radiocommunications Act 1992 (Cth) ss 31, 100, 102, 106

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 cited

Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 cited

Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 cited

SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied

NEZVILLE PTY LTD and HARRY STAMOULIS v AUSTRALIAN BROADCASTING AUTHORITY

V 546 of 2000

SUNDBERG J

31 JANUARY 2001

MELBOURNE

THE COURT DECLARES THAT the Licence Area Plan for Melbourne Radio determined by the Respondent on 22 June 2000, a copy of which is exhibit “MTS2C” to the affidavit of Michelle Margaret Taylor‑Sands (“the LAP”), is invalid in so far as it provides that:

(a)                a commercial radio broadcasting service is to be available on frequency 1116 kHz through service licence number SL 4139 (the applicable part of the second paragraph on page 2 of the LAP, attachment number 1.14 and the applicable part of item 12 in Schedule 1); and

(b)               a community broadcasting service is to be available on frequency 1503 kHz through service licence number SL1150722 (the applicable part of the second paragraph on page 2 of the LAP, attachment number 1.23 and item 21 in Schedule 1).

THE COURT ORDERS THAT:

1.                  The relief sought in the Amended Application dated 9 November 2000 be otherwise refused.

2.                  The operation of the above declaration be stayed for 48 hours.

3.                  The applicants pay four fifths of the respondent’s costs of the proceeding, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BACKGROUND

1                     This is an application for declaratory and injunctive relief expressed to be made pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 209(4) of the Broadcasting Services Act 1992 (Cth) (the “BS Act”). It is made in respect of decisions the respondent (“the ABA”) is alleged to have made in the determination of a licence area plan for Melbourne (“the LAP”). The ABA has responsibility for the preparation of licence area plans (“LAPs”) under s 26 of the BS Act.  The challenged decisions relate to open narrowcasting radio services (“ONC services”). ONC services are defined in s 18 of the BS Act as broadcasting services:

(a)               whose reception is limited:

(i)                 by being targeted to special interest groups; or

(ii)               by being intended only for limited locations, for example, arenas or business premises; or

(iii)             by being provided during a limited period or to cover a special event; or

(iv)             because they provide programs of limited appeal; or

(v)               for some other reason; and

(b)               that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

Other types of broadcasting services ‑ national broadcasting services, commercial broadcasting services, community broadcasting services and subscription broadcasting services ‑ are, respectively, defined in ss 13 to 17 of the BS Act.

2                     The decisions in question affect two broadcasting services ‑ 3XY Radio Hellas (broadcasting at 1422 kHz), operated by the first applicant, and 3BM (broadcasting at 1116 kHz), operated by the second applicant. Both are ONC services: the broadcasts are conducted in the Greek language and are targeted to Greek speaking members of the community.  The other currently operating open narrowcasting service in Melbourne is Rete Italia, broadcasting at 1593 kHz in the Italian language.  The first decision changes commercial radio station 3AK’s broadcasting frequency from 1503 kHz to 1116 kHz.  The second decision makes available frequency 1422 kHz as one of two additional ONC services to be available in Melbourne by what is described in the amended statement of claim as “use of a price‑based allocation system under s 106 of the Radiocommunications Act 1992 (Cth)” (“the Radcom Act”).

THE LEGISLATION

The ABA

3                     The ABA is established by s 154 of the BS Act. Its primary functions are set out in s 158. They include:

“(a)     to provide advice to the [Australian Communications Authority] in relation to:

(i)                 the spectrum plan and frequency band plans under the Radiocommunications Act 1992 ; and

(ii)               the designation under section 31 of that Act of parts of the radiofrequency spectrum as being primarily for broadcasting purposes; and

(b)               to plan the availability of segments of the broadcasting services bands on an area basis; and

(c)               to allocate, renew, suspend and cancel licences and to take other enforcement action under this Act; and

(d)               to conduct investigations or hearings relating to the allocating of licences for community radio and community television services  ….”

4                     Section 160 of the BS Act provides that the ABA is to perform its functions in a manner consistent with, inter alia, the objects of the Act described in s 3, and the regulatory policy described in s 4. The objects listed in s 3 are:

“(a)     to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and

(b)               to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and

(c)               to encourage diversity in control of the more influential broadcasting services; and

(d)               to ensure that Australians have effective control of the more influential broadcasting services; and

(e)               to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and

(f)                to promote the provision of high quality and innovative programming by providers of broadcasting services; and

(g)               to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and

(h)               to encourage providers of broadcasting services to respect community standards in the provision of program material; and

(i)                 to encourage the provision of means for addressing complaints about broadcasting services; and

(j)                to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them.”

5                     Section 4 provides:

“(1)     The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services according to the degree of influence that different types of broadcasting services are able to exert in shaping community views in Australia.

(2)            The Parliament also intends that broadcasting services in Australia be regulated in a manner that, in the opinion of the ABA:

(a)          enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services; and

(b)          will readily accommodate technological change; and

(c)          encourages:

(i)                 the development of broadcasting technologies and their application; and

(ii)               the provision of services made practicable by those technologies to the Australian community.”

Planning

6                     Section 30(1) of the Radcom Act empowers the Australian Communications Authority (“the ACA”) to prepare a spectrum plan.  By sub‑s (2) a spectrum plan must divide the radiofrequency spectrum into the appropriate number of frequency bands necessary for the purpose of regulating radiocommunications, and specify the general purpose or purposes for which the bands may be used.  Section 31 is in part as follows:

“(1)     The Minister may, after consultation with the ACA and the ABA, and in accordance with the spectrum plan, by written instrument:

(a)               designate a part of the spectrum as being primarily for broadcasting services; and

(b)               refer it to the ABA for planning under Part 3 of the Broadcasting Services Act 1992.

(2)        If a subsection (1) designation is in force in relation to a particular part of the spectrum, the ACA and the ABA may make a written agreement allowing licences, or specified kinds of licences, to be issued in specified circumstances in relation to that part of the spectrum or to a specified part or parts of that part of the spectrum.”

The ACA and the ABA may agree in writing to vary or revoke a sub‑section (2) agreement: sub‑s (3).  The ABA may revoke such an agreement if it considers that the agreement is preventing it from properly performing its planning functions under the BS Act: sub‑s (4).

7                     Planning of the broadcasting services band is provided for in Part 3 of the BS Act (ss 23 to 35), and includes planning by the ABA of priorities between different areas and different parts of the band (s 24), and the making of frequency allotment plans (s 25) and LAPs (s 26).  A LAP will typically list the numbers of national radio broadcasting services, commercial radio broadcasting services, community radio services and open narrowcasting services that are to be available in the broadcasting services bands, and nominate the frequency at which each of the services may broadcast, the service licence required to broadcast at that frequency, and the technical specifications required for broadcasting.  Section 23 of the BS Act provides:

“In performing functions under this Part, the ABA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:

(a)               demographics; and

(b)               social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and

(c)               the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and

…

(e)               technical restraints relating to the delivery or reception of broadcasting services; and

…

(g)       such other matters as the ABA considers relevant.”

8                     Section 26(1) of the BS Act provides:

“The ABA is to prepare in writing licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan.”

The ABA may vary a LAP: sub‑s (2).  The expression “broadcasting services bands” is defined in s 6 as that part of the radiofrequency spectrum that is designated under s 31 of the Radcom Act as being primarily for broadcasting purposes and is assigned by the Minister to the ABA for planning.

9                     Section 34 of the BS Act deals with alternative uses of broadcasting services bands.  Sub‑section (1) provides in part that if

“(b)     broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or

…

(d)        broadcasting services bands spectrum is available but the ABA has not commenced or completed planning and allocation processes in relation to that spectrum;

the ABA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ABA:

(e)        for the temporary transmission or the re-transmission of programs; or

…

(f)        to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or

(g)        for other purposes.

(2)               In making a determination under subsection (1), the ABA is to have regard to:

(a)               the possible future demand for the use of that part of the radiofrequency spectrum; and

(b)               such other matters as the ABA considers relevant.”

Licensing

10                  Chapter 3 of the Radcom Act (ss 45 to 153P) provides for the licensing of radiocommunications. It is an offence under s 46 of the Radcom Act to operate a radiocommunications device without authorisation under a licence. Spectrum licences, authorising use of specific frequencies within the spectrum, are provided for in Part 3.2. Spectrum licences are issued to holders of apparatus licences after the spectrum plan and frequency band plans have been finalised (see ss 32, 38 and 52 of the Radcom Act).

11                  Apparatus licences, which authorise the operation of radiocommunications devices, are provided for in Part 3.3 of the Radcom Act. Apparatus licences may be either transmitter licences or receiver licences, and may specify the type of transmitter or receiver to be operated.  The ACA is empowered to issue apparatus licences.  This power can, in relation to the use of part of the spectrum designated under s 31, be delegated to the ABA under s 238(3) of the Radcom Act.  It has been so delegated.  Section 100(2) of the Radcom Act provides that the ACA:

“must not issue an apparatus licence authorising operation of a radiocommunications transmitter within a part of the spectrum designated under subsection 31(1) unless:

(a)               the issue of the licence is in accordance with a decision of the ABA under subsection 34(1) of the Broadcasting Services Act 1992; or

(b)               the issue of the licence is in accordance with an agreement made between the ACA and the ABA under subsection 31(2) of this Act.”

Sub‑section (3) provides that sub‑s  (2) does not prevent the ACA from issuing an apparatus licence if the licence authorises operation of the transmitter only within a part of the spectrum that constitutes capacity reserved under s  31(1)(a) of the BS Act, and the broadcasting service which would be the subject of the licence is a broadcasting service of a kind for which the capacity has been reserved.  Section 106(1) provides:

“The ACA may determine in writing a price‑based allocation system for allocating and/or issuing specified transmitter licences (other than licences issued under section 101A or NBS transmitter licences).

Sub‑section (13) provides:

If a transmitter licence is issued under a system so determined, the ACA must publish in the Gazette the successful applicant’s name and the amount the applicant agreed to pay the Commonwealth for issue of the licence.”

12                  Class licences are issued under Part 3.4 of the Radcom Act. A class licence authorises a person to operate a radiocommunications device of a kind or for a purpose that may be specified in the licence itself. Class licences may be for the provision of subscription radio broadcasting services, subscription radio narrowcasting services, subscription television narrowcasting services, ONC radio services and ONC television services.  Class licences must be consistent with the spectrum plan and any relevant frequency band plan. Class licences may also be determined by the ABA under Part 8 of the BS Act (ss 117‑121).  A person who is able to operate under a class licence must also have an apparatus licence.  Thus a class licence does not authorise the operation of a radio service.  Rather it sets the conditions within which a person, if otherwise licensed, is to operate such a service.

AGREED FACTS

ONC licences

13                  On 1 October 1992 the ABA, pursuant to s 117 of the BS Act, determined a class licence for the provision of ONC radio services. On 22 April 1994 the ABA exercised its power under s 34 of the BS Act, and made radio frequencies 116kHz, 1422kHz and 1593 kHz available in Melbourne for the period from 22 April 1994 to 22 October 1996 for the provision of ONC services.  This process of making unused frequencies available for other radio services is known as “dropping through”.  According to counsel for the ABA, one imagines various levels of broadcasting services bands with bands being primarily available for national, commercial and community broadcasting services.  When a part of the spectrum is not being used for those services, it “drops through” to the next level so as to be available for other services including ONC services.  Also on 22 April the predecessor of the ACA determined under s 106(1) of the Radcom Act a price‑based allocation system for the issuing of apparatus (transmitter) licences for the provision of ONC services.  An auction of the apparatus licences took place on 16 June 1994.  Applicants were informed that channels had been made available under s 34 of the BS Act for specified periods of time, namely from 21 April 1994 to 21 April 1996, and that if the completion of the next LAP was delayed, the ABA would decide whether to exercise its power “to again make the relevant spectrum available … for a limited period.”

14                  Completion of the next LAP was delayed, and in anticipation of the expiry of the licences the ABA decided on 12 June 1996 to make the frequencies available for ONC services until 21 December 1997, and to re-issue the apparatus licences for one year until 22 October 1997.  Three later determinations made the frequencies available for additional twelve month periods.  But for a further determination made after I had reserved my decision, the frequencies would have been available until 31 December 2000, on which date the apparatus licences would have expired.  The current expiry date is 30 June 2001.  The first applicant acquired the 1422 kHz apparatus licence on 14 February 2000, and the second applicant acquired the 1116 kHz apparatus licence on 5 December 1997.

Licence Area Plan

15                  The ABA commenced planning the Melbourne, Geelong and Colac LAPs in 1998. Prior to the commencement of the LAP planning, Fusion Media, which operated commercial radio station 3AK, wrote to the director of the ABA. That letter, dated 11 August 1997, was in part as follows:

“I write at the request of the Board of Directors to register our concern at the difficulty we are experiencing in adequately servicing our licenced coverage area. We are handicapped not only by our frequency location of 1503, but also particularly at night time our signal is being overridden by other stations such as 2BS Bathurst making acceptable reception by listeners virtually impossible. In some cases areas only 10 kilometres from Melbourne Central are affected. This seriously compromises our programming and financial viability.

…

We seek your advice as to the most expedient method of achieving any of the following.

1.         An increase in transmission power from 5Kw to 10Kw.

2.         Relocation to a better frequency.

3.         Consideration of the exchange of our AM licence for one of the proposed new FM licences to be granted in Melbourne.”

16                  The ABA advertised in The Age, The Geelong Advertiser and The Colac Herald inviting submissions from interested parties. Submissions were received from a variety of individuals, associations and corporations, including the applicants, solicitors for Rete Italia, and others interested in broadcasting ONC services.  Not all were broadcasters or aspirant broadcasters to ethnic groups.  For example, submissions were received from Kids Radio and the Gay and Lesbian Association of Australia.  In December 1999 the ABA released a discussion paper and draft LAPs for Melbourne, Geelong and Colac. The draft LAP for Melbourne did not propose a change of frequency for 3AK, but proposed that the frequencies of 1116 kHz, 1422 kHz and 1593 kHz be made available for ONC services. Further submissions were received in January and February 2000. Amongst these submissions were two from Fusion Media. The first, dated 7 January 2000, commented as follows on the draft LAP:

“3AK has previously advised the ABA of concerns re the adequate coverage of the station’s service area. Our concerns are related to increasing levels of interference plus the increase of the geographical spread of the Melbourne population. This has had a marked effect on 3AK’s signal of 1503 kHz. We will be communicating separately regarding this.

3AK believes that the status quo of the AM band should not be altered.

We believe that the AM band should remain at: Commercial Licenses         5

                                                                             Narrowcast Licences         3

                                                                             Community Licences          2

                                                                             National Frequencies         4”

17                  The second submission, dated 17 February 2000, was in part as follows:

“Further to our response re the Draft Licence area plan for Melbourne, 3AK has previously advised the ABA of our concerns at our inability to adequately cover the station’s licensed service area.

As the ABA is aware, from our representations in early 1997, our signal impact has deteriorated over the years due to the increasing levels of interference plus the increase of the geographical spread of the Melbourne population.

…

We therefore formally apply for a change of frequency to 1116AM currently listed as an open narrowcast licence, our reasons being:-

1.                  An increase of power to 10KW at 1503 AM will be of marginal, if any, improvement to our signal…

2.                  We request an increase in power to 20KW…

3.                  … It is proposed that we will broadcast at 20KW during daylight hours and 10KW during evening hours…

The company has experienced substantial losses over the past 3 years and we believe an inadequate signal has been the main reason.

…

As we already cosite with 1116 we believe this is the most convenient narrowcast frequency to move to.

If successful in our application we would request the right to simulcast on 1116AM and 1503AM for at least 30 days – preferably 90 days, before handing back the 1503 frequency to the ABA.”

18                  On 1 May 2000 the ABA issued “Draft Revised Technical Specifications for Commercial Radio Station 3AK Melbourne, Vic”.  It was as follows:

“In a submission in response to the December 1999 Discussion Paper and Draft LAP for Melbourne, Geelong and Colac, the licensee of 3AK requested a change of frequency and increase in power under day / night switching arrangements.

…

The change of frequency request by 3AK can be considered as part of the current Licence Area Planning (LAP) process.

3AK currently operates on 1503 kHz and has requested a change in frequency to 1116 kHz, which is currently dropped through for open narrowcasting use until 31 December 2000.

The ABA is considering 3AK’s proposal to operate on 1116 kHz. Attached for comment are revised technical specifications for 3AK once the licence for the open narrowcasting service expires.”

19                  The ABA sent copies of the draft specifications to twenty‑one interested parties, including the second applicant, and allowed until 8 May 2000 for comments.  On 4 May the solicitors for the second applicant told the ABA that their client had not received the draft specifications until 3 May, and requested until 11 May 2000 to reply.  The reply, dated 12 May, was as follows:

“As you are aware we act on behalf of the licensee for the radio frequency 1116 kHz, Mr Harry Stamoulis.

On behalf of our client, objection is taken to the submission made by radio station 3AK proposing a change of frequency and radiation pattern for that commercial radio service. We note that as part of the change of frequency it wishes to use 1116kHz frequency.

Our client considers the proposed use by 3AK of the frequency as inappropriate as:-

1.                  3AK is a commercial radio station and does not fit the criteria required for “Open Narrow Casting Radio Services”;

2.                  3AK does not service a particular part of the community as the current licensee for 1116 does; and

3.                  it would be an inappropriate use of the radio spectrum to allow a commercial licence to be used on a frequency that is clearly of benefit to the community that the licensee currently serves.”

Responses were received from five other parties, including one on behalf of the operator of station 3BM (earlier called 3AB), which broadcast at 1116 kHz.

20                  The ABA issued LAPs for Melbourne, Geelong and Colac on 22 June 2000.  3AK was to be allowed to change frequency from 1503 kHz to 1116 kHz on 1 January 2001, and was given a two month simulcast period. This was part of a series of allocations referred to in the ABA’s statement of reasons as Decision 2. The other frequencies currently used for open narrowcasting services – 1422 kHz and 1593 kHz - were to be retained for open narrowcasting. This decision was referred to in the statement of reasons as Decision 8. Decision 8 went on to state:

“These channels are made available for open narrowcasting services under s 34 of the Broadcasting Services Act 1992, for a minimum period of five years. The provider will be determined by use of a price-based allocation system under s 106 of the Radiocommunications Act 1992.”

21                  In a letter to the applicants’ solicitors the solicitor for the ABA has confirmed that the ABA’s reasons for decision record both the ABA’s consideration of the matters taken into account in determining to adopt the LAP and its reasoning in making that determination.  The solicitor further confirmed that the reasons for decision record all matters taken into account by the ABA, the weight given to those matters and the reasoning process in making the determination.  If the ABA was required to take into account a particular matter in making its determination, and the reasons for decision do not indicate that that matter was taken into account, that may be taken as evidence that the matter was not taken into account.

GROUNDS OF REVIEW

Failure to take into account applicants’ submissions

22                  The applicants contend that the ABA failed to take into account the submissions they and Greek Broadcasters Pty Ltd (an earlier licensee of radio frequency 1422 kHz) had made in relation to

·               the existing use of radio frequencies 1116 kHz and 1422 kHz

·               the intended use of those frequencies in the future

·               the benefit to the Greek and Chinese speaking communities of those uses

·               the need for radio services in the Greek and/or Chinese languages in Melbourne.

In argument this was called “the content” submission ‑ content of programs, audience, benefit to the community.  It was said that the ABA completely ignored the current use of the three ONC licences in the Melbourne area.  Each frequency broadcast programs in ethnic languages, and thus served a significant part of the community.  The nature, benefits and utility of the services, and their contribution to diversity, were ignored.  This, it was said, constituted a failure by the ABA properly to carry out its planning function.  In performing its planning function under s 26 the ABA “is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum”: s 23.  It is also to have regard to the six specific matters mentioned in that section and such other matters as it considers relevant (see par 7 above).  The applicants submitted that in taking the course it did, the ABA had ignored the objects in s 3(1)(a) and (e).  Object (a) is to promote the availability of a diverse range of radio and television services offering entertainment, education and information.  Object (e) is to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity.  In response to the ABA’s contention that the applicants could not establish that the matters it said had not been taken into account were matters it was bound to take into account (Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39), the applicants denied they were making a relevant considerations submission.  Rather the submission was that the ABA did not plan in accordance with the planning criteria specified by the BS Act, namely the objects of the Act.  All it did was identify available frequencies and refer to matters that related to how many frequencies should be made available.

23                  The ABA accepted that in coming to a decision about the number and characteristics of the broadcasting services that are to be available in a particular area, it must seek to promote the objects of the Act.  Thus it must seek to make an allocation between the different categories of broadcasting services that will have the effect of promoting those objects.  To take object (a) as an example, the ABA must seek to set up a framework in which there will be a diversity of radio services available offering entertainment, education and information.  However, the ABA’s position was that the requirement in s 23 of the BS Act that in performing its planning function it promote the objects of the Act does not oblige it to have regard to the content of the programs particular broadcasters offer or that aspirants hope to offer.  Those matters are not relevant to the preparation of a LAP, which does not allocate licences or weigh up the merits of existing or potential broadcasters.

24                  In my view the ABA’s contention is sound.  The applicants’ submission treats the planning process as encompassing much more than s 26 involves.  Section 26 requires the ABA to prepare LAPs that determine the “number and characteristics, including technical specifications, of broadcasting services that are to be available” in various areas.  The “characteristics” referred to are the categories of broadcasting services for which Part 2 of the BS Act provides.  The making of a LAP does not involve any allocation of licences.  A LAP does not determine whether a particular broadcaster or aspirant is to be permitted to deliver a particular category of broadcasting service for which the LAP makes provision.  The allocation process is a separate and later exercise.  In relation to commercial broadcasting services it is done under Part 4 of the BS Act, and in relation to community broadcasting services under Part 6.  A person intending to provide an ONC service must apply for an apparatus (transmitter) licence under s 100 of the Radcom Act, unless a price‑based allocation system has been determined under s 106.

25                  In carrying out its planning function the ABA’s task was not to investigate the comparative merits of current broadcasters’ existing services.  Rather it was to determine whether there was a demand for ONC services, and whether there was substantial interest from potential broadcasters who were likely to be able to provide such services.  That is what the ABA did in the LAP.  Under the heading “Interest in provision of ONC services (s 23(c) and (g))”, it referred to the submissions received from various parties interested in providing ONC services, including the second applicant, Greek Broadcasters Pty Ltd, Rete Italia and the licensee of the ONC service operating on 1116kHz, and concluded that there was considerable interest from ONC radio broadcasters in providing ONC radio services in Melbourne, and that they were likely to be in a position to provide those services.  The “most popular format” was ethnic radio.  After summarising its findings as to interest, demand and availability of capacity, the ABA concluded:

“For the reasons given above and canvassed in Decisions 2, 5 and 8, the ABA is of the opinion that making two high/medium powered AM open narrowcasting radio services available in Melbourne is likely to promote the object at s 3(a) of the Act, including the economic and efficient use of the radiofrequency spectrum.”

26                  The ABA did not, as the applicants assert, treat the existing broadcasters as if they did not exist.  While the ABA was not obliged by s 26 read with s 23 to investigate the content of the applicants’ and other parties’ services and engage in the weighing exercise proposed by the applicants, it was obliged to investigate interest in and demand for ONC services and the ability of the interested parties to provide the service.  This it did, by reference to the submissions the applicants and others had filed.

27                  I note in conclusion that not only was the ABA not required to have regard to content etc in the manner asserted by the applicants, it would have been unwise at the planning stage for it to have engaged in the weighing process urged.  Had it gone beyond identifying the existence of interest in the provision of broadcasting services by persons apparently capable of providing them, and considered the comparative merits and coverage (audience) of their programs, there would have been a significant risk that it would be seen to have pre‑empted the process of allocating licences, and to have fettered any discretion it might subsequently have to exercise when the issue of licences arose under later provisions of the BS Act in relation to commercial and community services and, as the ACA’s delegate, under the Radcom Act in relation to ONC services.

28                  I would have reached the same conclusion on this ground if, as the respondent submitted, it was really a relevant considerations ground.  The ABA was not only not bound to take the content of existing or future ONC services into account at the planning stage; it would have been inappropriate for it to have done so.

Procedural fairness denied to second applicant

29                  The second applicant’s complaint was that the ABA denied him procedural fairness by giving him only one week in which to put in a submission in relation to the proposed allocation of frequency 1116 kHz to commercial broadcaster 3AK.  It was said that the proposed frequency change, if implemented, would terminate radio 3BM and deny the second applicant any opportunity to retain, or be the successful bidder for, frequency 1116 kHz.

30                  The licensee of 3AK raised with the ABA in August 1997 its concern about interference with its reception.  One of the options for remedying the situation was relocation to a better frequency.  In its draft LAP and Discussion Paper of December 1999, the ABA noted 3AK’s August 1997 submission and the options outlined in it.  It ruled out one of the options ‑ conversion from AM to FM.  The change of frequency option was the subject of the following observations:

“With regard to the option of changing frequency, there are three AM frequencies (1116 kHz, 1422 kHz, and 1593 kHz) which are proposed to be made available for open narrowcasting services in the Melbourne area ….  These frequencies are currently used for high power open narrowcasting services.  The ABA seeks 3AK’s detailed engineering assessment of the AM frequencies if it wishes to change to one of these frequencies.”

In another part of the Discussion Paper 3AK’s August 1997 submission was set out, and the above observations were in substance repeated.  The ABA ruled out a permanent (day and night) power increase for 3AK as a viable solution, but thought day‑night switching was a possible solution, subject to international agreement.  The possibility that frequency 1116 kHz or one of the others would be given to 3AK was thus flagged in December 1999.

31                  In its 1 May 2000 document ‑ “Draft Revised Technical Specifications for Commercial Radio Station 3AK Melbourne, Vic” (see par 18 above) ‑ the ABA said it was considering 3AK’s proposal to operate on 1116 kHz, and invited comments by 8 May.  The second applicant received the document on 3 May.  On 4 May his solicitors telephoned the ABA’s contact officer and asked for an extension to 11 May of the time in which to comment on the proposal.  The officer apparently agreed to the extension sought.  This conversation was recorded in the solicitors’ letter to the ABA of the same date.  On 12 May the solicitors provided their client’s comments, objecting to the proposal and giving their reasons for regarding it as inappropriate.  The second applicant thus had ten days in which to provide his comments.  Solicitors for the operator of frequency 1116 kHz also lodged a submission objecting to the proposal.  Although the second applicant’s solicitors’ letter was out of time, it was taken into account.  The LAP records the various responses to the 1 May proposal, sets out the bulk of the comments made on behalf of the second applicant and the operator of frequency 1116 kHz, and gives its reasons for rejecting their objections.  In the circumstances the second applicant was accorded a sufficient opportunity to respond to the proposal.  He was given an extension of the time within which to make his comments.  The extension was of the duration his solicitors sought.  Although his submission was late, it was taken into account.  He was not denied procedural fairness.

32                  In what I have said in pars 29 to 31 I have assumed, without deciding, that the second applicant was entitled to procedural fairness.  As to whether he was, see Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 415‑416, Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 at 584‑585 and SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604 at 607‑609.

Wide public consultation

33                  Section 27 of the BS Act requires the ABA in performing its functions under s 26 to make provision for wide public consultation.  The applicants’ complaint that the ABA failed to comply with s 27 was put in four ways.  The first, and the only pleaded non‑compliance, was that it gave the second applicant only one week in which to respond to the ABA’s 1 May document.  The second was that the second applicant and the other interested parties had no idea of the issues the ABA was addressing, “and there was therefore no effective public consultation”.  The third was that having in its Discussion Paper stated that it considered content issues to be relevant matters, it failed to consider submissions on those matters.  The fourth was that having consulted a larger number of interested parties earlier in the planning process, the ABA consulted only twenty‑one of them when in May 2000 it was considering the change to 3AK’s frequency.

34                  I do not regard the pleaded complaint as constituting a failure to provide for wide public consultation.  As pointed out in par 31, the second applicant had ten days in which to respond.  No one other than the second applicant claims to have been disadvantaged by the response deadline or, where applicable, the extended deadline.  Twenty‑one entities were invited to comment on the 3AK proposal.  Five (excluding the second applicant) responded, one pursuant to an extension of time.  None complained about the shortness of the response period or the extended period.  There is no evidence that any of the others failed to respond because of the response deadline.

35                  The second way in which the matter was put does not establish a failure to comply with s 27.  The second applicant and others likely to be affected were aware from the December Discussion Paper of 3AK’s problem and proposed solutions.  The 1 May document informed them that in response to the Discussion Paper 3AK had sought a change of frequency to 1116 kHz and an increase in power.  The second request was being deferred, and comments were sought only on the first.  Recipients were told that the ABA was considering the request for the change of frequency.  The object of wide public consultation is to enable interested parties to express their views about a topic or a proposed course of action.  That object was achieved here by identifying the topic, namely the request for a change of frequency to 1116 kHz, stating that the ABA was considering the request, and inviting comments on the request and seeking the recipients’ view on how it should be dealt with by the ABA.  Those who responded did not claim they needed more information in order properly to put their case.  Those most immediately affected put in reasoned responses through their solicitors.  Having regard to the nature of the topic in issue, it is difficult to see what could have been added to the combined force of the letters from the second applicant’s solicitors and the 1116 kHz operator’s solicitors.

36                  As to the third way the matter was put, the passages in the Discussion Paper relied on to establish that the ABA regarded content as a relevant matter do not bear it out.  The first was a sentence quoted by the ABA from the Explanatory Memorandum to the Broadcasting Services Bill 1992 commenting on what became s 3(a) of the BS Act:

“Diversity in the range of services is encouraged by a more open planning regime that is expected to increase the availability of services, and by a licensing regime which is designed to accelerate the introduction of services and encourage the emergence of the new ‘niche’ services.”

So far as it relates to planning, as opposed to licensing, that comment merely reflects the object in s 3(a) ‑ the promotion of a diverse range of radio and television services.  It does not assert, or even suggest, that the content or quality of particular programs is relevant to the planning process.  Another passage relied on as an invitation to submit content material is as follows:

“Open narrowcasting also has a place in promoting diversity, particularly open narrowcasting whose reception is limited either:

·               by being targeted to special interest groups; or

·               because they provide programs of limited appeal.

These types of ‘niche’ services clearly have a major role in promoting diversity, particularly of information but also of certain types of entertainment, such as entertainment in languages other than English.”

This is not an invitation to aspirants to submit content material or bid for recognition in the LAP.  The first four lines merely reflect part of the definition of ONC services (s 18).  The balance recognises the value of ONC services as a type or category of broadcasting service in promoting diversity.  As counsel for the respondent put it ‑ “It recognises the potential of open narrowcasting as a genus, not the potential of any particular provider”.

37                  The fourth way the s 27 ground was put relates to the extent of the ABA’s public consultation in connection with the 3AK change of frequency.  The essence of a LAP is to map out how many services, and of what type, are to be made available.  Wide public consultation, for which provision must be made, requires that the public be able to comment on all important matters with which the LAP will deal.  Provision for wide public consultation was made in the early stages of the preparation of the LAP.  Submissions were invited and received, draft LAPs were produced and distributed, and further submissions were invited, made and received on the drafts.  However, the consultation that took place prior to the proposed changes to decisions 2 and 8 does not absolve the ABA from its obligation to undertake wide public consultation in relation to the LAP as a whole.  In my view, before it can be said that the ABA has made provision for wide public consultation in preparing a LAP, the ABA must have made that provision in relation to all significant components of the LAP.  While in the scale of things the proposed changes were small, they significantly altered one aspect of the LAP, and the public was entitled to comment on them.  There was no general opportunity for members of the public to do so, and although some twenty‑one entities some of whom had earlier made submissions on the ONC parts of the proposed LAP were invited to comment on the changes, others who had earlier made submissions were not, even though the effect of the changes was to reduce the number of ONC services from three to two.  Given that there was no general invitation to the public to comment on the proposed changes, and that there was no opportunity to comment afforded to individuals and associations known to have expressed an interest in ONC services, I am of the view that while provision may have been made for wide public consultation in relation to the bulk of the plan, the LAP as a whole was not the subject of such consultation.

38                  I do not accept the ABA’s submission that, looking at the process as a whole, there was wide public consultation in relation to the 3AK issue because the December 1999 Discussion Paper flagged the possible shift of 3AK’s frequency to one of those then being used for ONC.  The ABA’s Preliminary view 2 was that 3AK would continue to operate on 1503 kHz with day/night switching as the solution to its reception problem.  It is true that reference was made to changing frequencies to one of the three proposed to be made available for ONC services.  But the ABA did not say it was considering this option.  Rather it said if 3AK wished to change to one of the available frequencies, it would have to submit a “detailed engineering assessment of the AM frequencies”.  A reader of Preliminary view 2 together with this comment would not understand that a change of frequency was a live issue upon which comment was required or invited.  The other reference to 3AK’s reception problem appeared in the discussion of Technical Restraints.  Reference was made to 3AK’s three options for solving its problem.  The ABA referred to the three available frequencies, but did not suggest that it was considering a change of frequency as the solution.  Indeed it proposed day/night switching as a possible solution.  A reader of this part of the Discussion Paper would not see any occasion to comment on an option to which the ABA was plainly not attracted.

39                  Having regard to the language of s 27 and the subject matter and objects of the BS Act, it was in my view the intention of the legislature that an act done in breach of s 27 should be invalid.  Cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388‑389.

Erroneous claim that frequencies 1116 and 1422 were “available”

40                  This ground asserts that, contrary to the provisions of the Act, the ABA wrongly specified that radio frequencies 1116 kHz and 1422  kHz were “available” and did not have an existing licensed broadcaster, and failed to take into account the existing services of the applicants.  A careful reading of the LAP does not bear out this claim.  In considering the parts of the LAP that relate to frequencies 1116  kHz and 1422  kHz, it is to be remembered that the “drop through” of spectrum for the frequencies was not to end until 31 December 2000, and that the implementation of those parts of the LAP would not take effect until 1 January 2001.  The ABA’s determination states that

“Seven national radio broadcasting services, eleven commercial radio broadcasting services, nine community and two open narrowcasting radio services are to be available in the area described at Attachment 1.1 to this Determination with use of the broadcasting services bands.  The characteristics, including technical specifications, of the services that are to be available in the area described at Attachment 1.1 are set out in Schedule One and Attachments 1.2 ‑ 1.31 to this Determination.”

The emphases are added.

41                  Schedule One consists of a table containing a number of columns.  So far as presently relevant the table is as follows:

Other service categories are “National” and “Community”.  Other status entries are “Licensed Reserved” and “Licensed”.  The notes to the Schedule inform the reader that it sets out each of the services that “are to be available” in that area, that the status of the service does not form part of the LAP and is included for reference only, that N/A (Not Applicable) in the fourth column reflects the fact that the BS Act only requires service licences for commercial and community services, that in the Status column “Licensed” means that the service is already licensed, “Available” that a new licence is available for allocation, “Alternative” that an alternative channel is “proposed” for the licensed service, and that “Reserved” means that capacity is reserved for a national or community service in accordance with Ministerial notification.

42                  Attachment 1.13 relates to a commercial radio broadcasting service currently on frequency 1503 kHz, and records that “This specification will have its frequency replaced by 1116 kHz, described under Attachment 1.14, at a date not later than 1 March 2001.  Attachment 1.14 contains the new specification for commercial radio broadcasting service on frequency 1116 kHz, and records that “This specification will replace the frequency 1503 kHz, described under Attachment 1.13, at a date not later than 1 March 2001”.  Attachment 1.30 identifies frequency 1422 kHz as available for ONC.

43                  As is apparent from the above information read as a whole, “Available” in relation to frequency 1422 kHz means that that frequency is to be available.  The word “Available” is not used in relation to frequency 1116 kHz.  The words “are to be available” reflect the fact that the LAP was not to take effect until 1 January 2001.  By that time, as I have said, the “drop through” of spectrum for 1116 kHz and 1422 kHz would have ended.  Similarly, the fact that the applicants hold transmitter licences under the Radcom Act, which authorisation would end on 31 December 2000, cannot affect that part of the LAP which made the frequencies available with effect from 1 January 2001 for the services identified in the LAP.  The claim that the ABA failed to take into account the existing services of the applicants is correct in the sense that the information described in pars 38‑40 represented the position that would obtain when the LAP was to come into operation.  The applicants’ existing services were referred to elsewhere in the LAP.  It follows from the foregoing that the factual substratum for this ground has not been established.

Failure to take into account use made of 1116 and 1422

44                  It was said that the ABA failed to take into account the use made by the applicants of radio frequencies 1116 kHz and 1422 kHz or the benefit to the community, in particular the Greek speaking community, of radio 3XY and radio 3BM, or the extent to which the continuation of those services would fulfil the planning criteria in s 23 of the BS Act and the objects of the Act.  For the reasons given in pars 24 to 26 this ground is not sustainable.

Failure to make proper assessment of need for ethnic services

45                  The claim is that the ABA failed to make any or any proper assessment of the need for or benefit to the community or sections of the community of Greek, Chinese and/or Italian radio broadcasting services.  This ground must also fail for the reasons given in pars 24 to 26.

“Allocation decision”

46                  It will be recalled that after determining that frequencies 1422 kHz and 1593 kHz would continue to be available for ONC services, the ABA said that “The provider will be determined by use of a price‑based allocation system under s 106 of the Radiocommunications Act 1992”.  The applicants described this as the allocation decision.  They did not in their oral submissions assert that the decision was beyond power.  Indeed they asserted that the ABA had authority to make it.  As I understood it the argument was that the allocation decision exposed the hypocrisy of the ABA’s argument that matters of content were not relevant at the planning (s 26) stage, but would arise for consideration at the licensing stage.  However, under the price‑based allocation system decided upon by the ABA, matters of content would not arise at the licensing stage, because licences would in effect be put up for auction and go to the highest bidder.

47                  The ABA had no power to determine that there be a price‑based allocation system.  The power in s 106 of the Radcom Act is conferred on the ACA.  While the ACA can delegate to the ABA certain of its powers under the Radcom Act, the power in s 106 of that Act is not one of them.  See s 238(3) of the Radcom Act.  The history of frequencies 1422 kHz, 1116 kHz and 1593 kHz between 1994 and 2000 throws light on the meaning to be attributed to the ABA’s statement in Decision 8 that the provider “will be determined by use of a price‑based allocation system under s 106”.  On 22 April 1994 the ABA made the three frequencies available under s 34 of the BS Act for the provision of ONC services for the period from 22 April 1994 to 22 October 1996.  On the same day the ACA determined, under s 106 of the Radcom Act, a price‑based allocation system for allocating and issuing transmitter licences under s 100 of that Act for ONC services in the parts of the spectrum that under the ABA’s determination of 22 April 1994 were available for allocation.  The apparatus licence for the 1116 kHz frequency was issued by the ABA under s 100 of the Radcom Act for the period from 21 July 1994 to 22 October 1996, and that for frequency 1422 kHz for the period 10 October 1994 to 22 October 1996.  The licences were issued pursuant to the price‑based allocation system determined by the ACA.  The ACA’s s 106 determination was expressed to operate in respect of the same period as the ABA’s s 34 determination.  It thus expired on 22 October 1996.  The availability of frequencies 1422 kHz, 1116 kHz and 1593 kHz was therefore extended by the ABA under s 34(1) of the BS Act and the 1116 kHz and 1422 kHz apparatus licences were reissued by the ABA under s 100 of the Radcom Act.  The availability of the three frequencies would have terminated on 31 December 2000 but for the extension referred to in par 14.  The 1422 kHz and 1116 kHz apparatus licences expired on 31 December 2000.  Over the period 1994 to 2000 the ABA corresponded with the holders from time to time of the 1116 kHz and 1422 kHz apparatus licences, confirming that the “drop through” of spectrum under s 34(1) of the BS Act was for a limited period of time pending the completion of planning under s 26, and stating that if the relevant frequency were to be made available pursuant to the LAP for Melbourne for ONC services, transmitter licences would or probably would be issued by way of a price‑based allocation system.  In some of the correspondence the ABA said the licences “will be issued by way of a price‑based allocation system under s 106 of the Radcom Act”.  In a letter to solicitors Byrne & Clark in relation to 1116 kHz, the ABA was more cautious, saying only that the “most likely outcome” was that ONC licences would be auctioned under a price‑based allocation system.

48                  Given this history, and the ABA’s undoubted awareness that only the ACA could determine a price‑based allocation system, its statement in Decision 8 that the provider “will be determined by use of a price‑based allocation system under s 106 of the Radiocommunications Act 1992” is to be seen as a statement of its expectation, perhaps a very firm expectation approaching certainty, that based on past experience that is what would happen.  The statement is not to be taken as a decision by the ABA that the provider will be determined in that way.  It will be recalled that the applicants’ allocation argument, as I understood it, was designed to answer or at least impugn the ABA’s submission as to the correct construction of the ABA’s planning power in s 26 of the BS Act, that is to say that content was not at that stage relevant, but would be relevant at the licensing stage.  That in a particular case there might, as in the present case, be a price‑based allocation system in place, so that the merits of a particular ONC aspirant or operator might not fall for consideration, cannot affect the proper construction of the planning and licensing provisions of the BS Act.  The content of programs will be relevant to licensing decisions under Parts 4 and 6 of the BS Act and under s 100 of the Radcom Act.

49                  The allocation issue was put in an entirely different way in the amended statement of claim.  There it is claimed that the ABA acted in breach of the BS Act and unlawfully in that “a price‑based allocation system for ONC services is inappropriate as the same fails to have regard to the objects of the Act … or the planning criteria” in s 23.  This contention must fail because it assumes, wrongly, that the ABA made the price‑based allocation determination.

Other grounds

50                  Under this heading I deal with four pleaded grounds that were not the subject of any submissions by the applicants, but were not expressly abandoned.

Failure to distinguish between ONC services and commercial broadcasting services

51                  The complaint here is that the LAP provides that radio frequencies 1422 kHz and 1593 kHz will be ONC services, but specifies that they are to be allocated solely on the basis of a price bid.  Thus any intending broadcaster, including a commercial broadcaster, can bid for the licence for such frequencies.  This was said to be in breach of the BS Act and unlawful in that it failed to distinguish between ONC services on the one hand and commercial broadcasting services on the other.  I refer to what I have said in pars 45 and 46 about the “allocation decision”.  Assuming

·               that when the allocation of the relevant transmitter licence is made a determination of the ACA under s 106(1) of the Radcom Act is in force mandating a price based allocation system for allocating or issuing the licences, and

·               that the consequence is that a commercial broadcaster might bid for one or both of the licences,

the complaint has no substance.  The LAP designates the two frequencies as available for ONC services, not for commercial broadcasting services.  The frequencies can only be used for ONC services as defined in s 18 of the BS Act.  They do not become available for commercial broadcasting services simply because a commercial broadcaster successfully bids for them.  That broadcaster could only use them for ONC services.  The distinction required by the BS Act between ONC services and commercial broadcasting services is not disturbed.

Failure to provide ONC criteria to be met by intending broadcasters

52                  The criteria for ONC services are those set out in s 18 (see par 1 above).  The complaint is that the ABA “failed to consider and the ABA Decisions and the LAP do not provide for open narrowcasting criteria to be met by intending broadcasters on radio frequencies 1422 and 1593”.  It is not clear whether the first limb of the complaint asserts a failure to consider the criteria.  If it does not do that, it is difficult to accord a meaning to that limb.  In any event, the ABA did not fail to consider the criteria.  It set them out in its reasons for Decision 8, and discussed existing ONC services and the interest that had been expressed in the provision of additional ONC services.

53                  The second limb of the complaint ‑ failure to provide for ONC criteria to be “met by intending broadcasters” ‑ erroneously treats the selection of the operators of a new ONC service as part of the planning process.  Whether a particular broadcaster or aspirant satisfies one or more of the criteria in s 18 of the BS Act is not a planning function.  Satisfaction of the criteria is a matter for the licensing regime for which the Radcom Act provides.  It is true that the ABA is the ACA’s delegate for the purposes that regime.  But that is neither here nor there.  The allocation (licensing) function is different in kind from the planning function, and the two are provided for and administered under separate, though related, statutes.  I refer to what I have said in pars 24 to 26.

Failure to specify criteria that must be satisfied by bidders

54                  The applicant complains that the ABA has not specified and the LAP does not specify what criteria for an ONC service must be satisfied by any person bidding for frequencies 1422 kHz and 1593 kHz.  I refer to what I have said in relation to the preceding ground.  All I need add is that the criteria to be met are set out in s 18, and it is no part of the ABA’s function or of the LAP to add to or vary them.

Failure to provide a formula for assessing features of services to be offered by bidders

55                  The applicant submits that the LAP should have contained a formula for weighing the “demographic, social, economic, cultural, community and other features” of the services proposed to be offered by bidders for the two frequencies or “weighing such features against community need or benefit or price bid”.  As I have said in pars 24 to 26, matters relevant to the allocation of licences ‑ the qualities of the bidders and the services they propose to offer if successful ‑ are not part of the ABA’s planning role under s 26 of the BS Act.  Those matters are doubtless to be taken into account in the allocation and issue of transmission licences under s 100 of the Radcom Act.  That section requires the ACA to take into account various specific matters together with “all matters that it considers relevant” (sub‑s (4)(a)).

SOURCE OF POWER TO PROVIDE FOR ONC SERVICES

56                  Submissions of some complexity were made about the source of the ABA’s power to provide for ONC services.  The pleadings do not raise any such issue.  Rather the applicants assert that the decision under s 34 of the BS Act to make two ONC services available (Decision 8) was invalid because it was accompanied by a decision that the providers of the services would be determined by use of a price‑based allocation system under s 106 of the Radcom Act.  I have dealt with that claim in par 47.  The pleading thus assumes that the ABA has power under s 34 to make ONC services available.  However, in their submissions the applicants contended that there was no such power.

57                  The applicants took the ABA to contend that s 34 of the BS Act was the source of its power to make available frequencies for ONC, whereas the true source was s 26.  The ABA’s position was not as simple as that attributed to it.  The ABA’s reasons for decision disclose that it was of the view that it was open to it to include ONC services amongst the broadcasting services for which it could plan pursuant to s 26.  Thus it said “Amongst the services that are included in the plan under subsection 26(1) are two open narrowcasting radio services”.  It is true that the ABA also referred to s 34, but according to the ABA’s counsel that was because of s 100(2) of the Radcom Act, which prohibits the ACA from issuing an apparatus licence unless the issue is in accordance with either a decision of the ABA under s 34(1) of the BS Act or an agreement made between the ACA and the ABA under s 31(2) of the Radcom Act.  It was submitted that in referring to s 34 the ABA was recognising the essential step that had to be taken before the ACA or its delegate (the ABA) could act under the Radcom Act to issue transmitter licences.

58                  The applicants’ answer was that the ABA’s contention misunderstood the function served by s 34 of the BS Act.  It was pointed out that s 100(1) of the Radcom Act confers on the ACA a general power to issue an apparatus licence.  Sub‑section 100(2) prohibits the issue of an apparatus licence for the operation of a transmitter “within a part of the spectrum designated under s 31(1)” unless one of the two specified exceptions applies.  All radio and television broadcasting under the BS Act takes place in the part of the spectrum designated by the Minister under s 31(1).  The prohibition in s 100(2) is not made subject to any other provision of the Act, and in particular is not subject to s 102.  Section 100(1) does not subject the whole of s 100 to, inter alia, s 102, but only sub‑s (1) itself.  On the ABA’s construction, s 100(2) and s 102(1) would be inconsistent.  The former would preclude the ACA from issuing an apparatus licence unless the issue was in accordance with a decision under s 34(1), while s 102(1) would require the ACA to issue a transmitter licence to a person to whom a broadcasting services bands licence had been allocated under Part 4 or Part 6 of the BS Act.  Parts 4 and 6 deal respectively with commercial and community licences.  Neither s 100(2) nor s 102 is expressed to be subject to the other.  The purpose to be served by s 100(2) is seen when it is viewed in the light of the related provision to which it refers ‑ s 31(1).  Section 31(1) empowers the Minister to designate a part of the spectrum as being primarily for broadcasting purposes and refer it to the ABA for planning under the BS Act.  The planning function in s 26 of the BS Act is the planning of broadcasting services that are available “with the use of the broadcasting services bands”. The expression “broadcasting services bands” is defined in s 6 of the BS Act as that part of the radiofrequency spectrum designated and referred for planning under s 31 of the Radcom Act.  The part of the spectrum referred to has not been planned.  It is “unplanned”.  Accordingly, the prohibition in s 100(2) is necessarily concerned with the pre‑planning issue of licences.  Thereby the tension between ss 100(2) and 102 is resolved: the former dealing with the pre‑planning issue of licences and the latter with the post‑planning issue of licences.  Once the relevant part of the spectrum has been planned, the ACA has power to issue an apparatus licence under s 100(1) unless it is required to issue licences by ss 100B, 102 and 102A, to which s 100(1) is made subject.

59                  In my view the applicants’ construction of the relevant provisions is correct.  Section 100(2) is directed to the period during which the designated part of the spectrum is subject to planning.  Although the sub‑section speaks only of the designation of the part of the spectrum (and not also of reference of the designated part to the ABA for planning), the designation carries with it the reference.  That is because the Minister’s power is a composite one ‑ to designate and refer, not to designate alone.  The second exception to the prohibition in s 100(2) is the issue of a licence in accordance with an agreement made under s 31(2).  That sub‑section enables the ACA and the ABA, if a designation under sub‑s (1) is in force, to make a written agreement allowing licences to be issued in specified circumstances in relation to the designated part.  That this provision is concerned with the planning period is made clear by sub‑s (4), which enables the ABA to revoke an agreement if it considers the agreement is preventing it from properly performing its planning functions.  I accept the applicants’ submission that unless the prohibition in s 100(2) applies only to the period during which the designated part of the spectrum is subject to planning, there is a conflict between s 100(2) and s 102.

60                  As I have said, the pleadings are silent as to this point, and no clear submissions were made as to consequence of the ABA’s mistaken apprehension as to the availability of s 34 of the BS Act.  Since the ABA has power to make ONC services available under s 26, and has exercised that power, referring to s 34 only because it considered, wrongly, that it had to do so to enable apparatus licences to be issued under s 100 of the Radcom Act, it may be that nothing turns on that mistaken belief.

CONCLUSION

61                  I will hear counsel as to the orders that should be made as a result of my conclusion on the s 27 ground, and as to whether any, and if so what, orders should be made as a result of my acceptance of the applicants’ submissions on the role to be performed by s 34.

Associate:

Dated:              31 January 2001