FEDERAL COURT OF AUSTRALIA

RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855

administrative law – broadcasting- determination by Australian Broadcasting Authority of licence area plan – application for review of determination under Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether determination was a decision “of an administrative character”

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3 (“decision to which this Act applies”), 5

Broadcasting Services Act 1992 (Cth) s 26

Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325 discussed

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 discussed

Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 discussed

Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 FCR 463 discussed

Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 discussed

Vietnam Veterans’ Affairs Association v Cohen (1996) 70 FCR 419 discussed

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

RG CAPITAL RADIO LIMITED (ACN 010 711 056) v AUSTRALIAN BROADCASTING AUTHORITY

N 1054 OF 2000

WILCOX, BRANSON AND LINDGREN JJ

6 JULY 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The question:

“Is the decision of the respondent to determine the licence area plan made 31 August 2000 for the Gosford licence area a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?”

ordered on 20 February 2001 to be decided as a separate and preliminary question, be answered:

“No.”

2.         All issues concerning the costs of the determination of the preliminary question be reserved for decision by Moore J.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     By its application filed on 3 October 2000 the applicant, R G Capital Radio Limited (“RGC”), applies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of a decision of the respondent, the Australian Broadcasting Authority (“the ABA”), under subs 26(1) of the Broadcasting Services Act 1992 (Cth) (“the BS Act”).  In RGC’s application, the relevant decision  is described as a decision:

“to make available an additional commercial radio service for the Gosford Licence Area to operate on 104.5 MHz from Mt Penang with a maximum ERP of 16kW Directional…”

2                     It soon appeared there was an issue between the parties as to whether the AD(JR) Act applied to the decision.  RGC contended that the decision was “a decision of an administrative character” within the meaning of that Act but the ABA disagreed.  Accordingly, on  20 February 2001, Moore J ordered that there be decided as a separate and preliminary question, pursuant to O 29 r 2 of the Federal Court Rules, the following question:

“Is the decision of the respondent to determine the licence area plan made 31 August 2000 for the Gosford licence area a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?”

3                     On 20 February 2001 the Acting Chief Justice ordered pursuant to subs 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the question be determined by a Full Court.

4                     As will appear, subs 26(1) of the BS Act requires the ABA “to prepare in writing licence area plans” as described in that subsection.  The requirement of the subsection is not, for example, that the ABA adopt a plan or determine to approve a plan.  It may be thought to be open to question whether the preparation in writing of a plan of some necessary detail and complexity, a task that is likely to be fulfilled progressively and over a considerable period of time, can appropriately be described as the making of a “decision” within the meaning of the AD(JR) Act.  The “preparation”, albeit in writing, to which subs 26(1) (and subs 25(1)) refers might be argued to be different in kind from the declarations, allocations, variations, refusals and other decisions listed in s 204 of the BS Act, in respect of which that section provides for review by the Administrative Appeals Tribunal.  However, as the submissions of both parties accepted that subs 26(1) of the BS Act provides for the making of a decision and that the only issue for determination was the character of that decision, we will consider the question before us on the basis that subs 26(1) of the BS Act does provide for the making of a decision.

5                     Although the aspect of the plan of which RGC, as the holder of licences to operate two existing commercial radio services in the Gosford area, makes complaint is the making available of an additional commercial radio service within that area, the description of the decision impugned in RGC’s application was inappropriately narrow.  The matter was raised with the parties at the commencement of argument.  They proceeded on the basis that the decision in question was correctly described in Moore J’s order and RGC undertook to amend its application by identifying in that way the decision sought to be reviewed.

6                     For the reasons given below, we have concluded that the question which we are required to determine should be answered, “No”.

Legislation

7                     Subsection 5(1) of the AD(JR) Act provides that a person who is aggrieved by “a decision to which this Act applies…may apply to the Court for an order of review in respect of the decision on any one or more of the…grounds [set out in the subsection]”.  The expression “decision to which this Act applies” is defined in subs 3(1) of theAD(JR) Act to mean, relevantly:

“a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment,¼”

As Moore J’s order makes clear, the only question for determination at this time is whether the ABA’s decision of 31 August 2000 is a decision of an administrative character.

8                     As well as the BS Act, the Radiocommunications Act 1992 (Cth) (“the Radcom Act”) is relevant to the issue before the Court.   The object of that Act is to provide for management of “the radiofrequency spectrum”:  see s 3. The word “spectrum” is defined in s 5 of the Radcom Act to mean “the range of frequencies within which radiocommunications are capable of being made”. 

9                     Chapter 3 of the Radcom Act provides for three systems of licences that apply to radiocommunications.   That Chapter includes s 46, which provides that a person must not, without reasonable excuse, knowingly or recklessly operate a radiocommunications device otherwise than as authorised by a licence.  A radiocommunications device is a radiocommunications transmitter or receiver of certain kinds: see subs 7(1).  The  word “radiocommunication” is defined in s 6 of the Radcom Act to mean radio emission or reception of radio emission for the purpose of communicating information.

10                  Section 102 of the Radcom Act provides that if a “broadcasting services bands licence” is allocated to a person under Part 4 or 6 of the BS Act, the Australian Communications Authority must issue to the person the necessary  “transmitter licence”.  Such a licence authorises the operation of specified radiocommunications transmitters or radio communications transmitters of a specified kind:  see subs 97(2) of the Radcom Act.

11                  The expressions “broadcasting services bands” and “broadcasting services bands licence” are defined in s 6 of the BS Act as follows:

“broadcasting services bands means that part of the radiofrequency spectrum that:

(a)       is designated under section 31 of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and

(b)       is referred by the Minister under that section to the ABA for planning.

broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licenceor a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.”

12                  It will be noted that the last definition includes a reference to a commercial radio broadcasting licence.  Accordingly, the effect of s 102 of the Radcom Act is that a transmitter licence must be issued to enable the holder of a commercial radio broadcasting licence to exploit that licence.  The term “commercial radio broadcasting licence” is defined in s 6 of the BS Act as “a licence to provide a commercial broadcasting service that provides radio programs”.

13                  Paragraph 109(1)(d) of the Radcom Act provides that a transmitter licence issued under s 102 is subject to a condition that the licensee must not operate, or permit the operation of, the transmitter otherwise than in accordance with any relevant “technical specifications” determined by the ABA under subs 26(1) of the BS Act.

14                  The objects of the BS Act are stated in s 3 of that Act.  The first two objects are as follows:

“(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…”

15                  Part 2 (ss 11-22) of the BS Act identifies the following six categories of broadcasting services to which the BS Act relates:

(1)       national broadcasting services;

(2)       commercial broadcasting services;

(3)       community broadcasting services:

(4)       subscription broadcasting services;

(5)       subscription narrowcasting services;

(6)       open narrowcasting services.

16                  Sections 13-18 define these categories of broadcasting services and s 19 empowers the ABA, by notice in the Gazette, to determine additional criteria to those specified in  ss 14 to 18 or to clarify the criteria specified in those sections.

17                  Part 3 (ss 23-35) of the BS Act is headed “Planning of the Broadcasting Services Bands”. In para 11 above we quoted the definition of the expression “broadcasting services bands”.  It is with Part 3 of the BS Act that the present case is chiefly concerned.

18                  The ABA relies on s 23, the first section in Part 3, in support of its submission that a determination made by it under s 26 is a legislative, not an administrative, decision.  The ABA points to the broad, policy-oriented considerations which that section requires it to take into account.  Section 23 reads:

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

(a)        demographics; and

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

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

(d)        developments in technology; and

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

(f)        the demand for radiofrequency spectrum for services other than broadcasting services; and

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

19                  Sections 24, 25 and 26 provide for a series of steps, of increasing particularity.  The three sections are as follows:

“24     (1)        Before preparing frequency allotment plans or licence area plans, the ABA must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans.

(2)                The ABA may, by notice in writing, vary priorities.

 25       (1)       Where the Minister has, under section 31 of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ABA for planning, the ABA must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services using that part of the radiofrequency spectrum.

(2)        The ABA may, by notice in writing vary a frequency allotment plan.

(3)                In preparing or varying a frequency allotment plan, the ABA must comply with any directions, whether of a general or specific nature, given to the ABA in writing by the Minister.

 26       (1)       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.

(2)    The ABA may, by notice in writing, vary a licence area plan.”

20                  Section 27 provides for public consultation.  It reads:

“27     (1)       In performing its functions under sections 24, 25 and 26, the ABA must make provision for wide public consultation.

(2)    The ABA is to keep a record of, and make available for public inspection, all advice received by the ABA, and all assumptions made by the ABA, in performing its functions under sections 24, 25 and 26.”

21                  It will be noted that ss 24, 25 and 26 provide for three stages of decision-making: the determination of priorities as between particular areas of Australia and as between different parts of the broadcasting services bands (s 24); the preparation of a frequency allotment plan (s 25); and the preparation of licence area plans (s 26).  The ABA relies on the “planning” nature of the decisions at the three stages and, also, on the requirement of subs 27(1) for wide public consultation in relation to each of them.  These features are said to support the view that a decision under subs 26(1) is of a legislative, not an administrative, nature.

22                  Planning of the broadcasting services bands pursuant to Part 3 precedes the allocation of licences, including commercial radio broadcasting licences, for which Part 4 (ss 36-49) provides.  But some provisions within Part 3 limit the operation of Part 4.  For example, subs 29(1) provides that before allocating, inter alia, a new commercial radio broadcasting licence that is a broadcasting services bands licence, the ABA is to designate one of the areas referred to in s 26 as the licence area of the licence.

23                  Some other provisions of Part 3 should be noted.  First, s 30 provides that the ABA may determine, by reference to census data, “the licence area population of a licence area”. Second, s 31 empowers the Minister to notify the ABA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of national broadcasting services or community broadcasting services (other than temporary services). However, such a notice must not affect the provision of services in accordance with, inter alia, a licence already allocated by the ABA.  A notice under s 31 is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth): see s 32.  Third, s 35 provides that, if the ABA makes an “instrument” under Part 3, it must publish in the Gazette a notice stating that the instrument has been made and the places where copies of the instrument can be purchased. 

24                  It follows, from the above provisions, that the ABA must publish in the Gazette a notice stating that a licence area plan has been made.  But unlike a notice under s 31, for example, and like a determination of priorities under s 24 or a frequency allotment plan under s 25, a licence area plan is not a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth).  RGC relies on this fact as supporting its contention that the ABA’s decision under s 26 to prepare a licence area plan is not of a legislative character but is of an administrative character.

25                  The first section in Part 4 of the BS Act, s 36, requires the ABA to determine in writing a “price-based system for allocating”, inter alia, commercial radio broadcasting licences that are broadcasting services bands licences. The section empowers the Minister to give specific directions to the ABA for the purpose of such a determination, including a direction that the ABA include in its determination a specified reserve price for licences.

26                  Subsection 42(2) of the Act provides that each commercial radio broadcasting licence is subject to the conditions set out in Part 4 of Schedule 2 to the Act and such other conditions as are imposed by the ABA.  The conditions set out in Part 4 of Schedule 2 include the following:

“8        (2) …

(a)               the licensee will provide a service that, when considered together with other broadcasting services available in the licence area of the licence (including another service operated by the licensee), contributes to the provision of an adequate and comprehensive range of broadcasting services in that licence area;

(b)               the licensee will remain a suitable licensee;

(c)                the licensee will not provide commercial radio broadcasting services under the licence outside the licence area of the licence unless the provision of those services outside the licence area occurs accidentally or as a necessary result of the provision of commercial radio broadcasting services within the licence area.”

27                  Part 12 (ss 154-167) of the BS Act provides for the constitution and operation of the ABA.  Under s 154, the ABA is established as a body corporate with perpetual succession, a seal and the capacity to sue and be sued in its corporate name.  Under s 155, the ABA is to consist of a chairperson, a deputy chairperson and not more than five other members, all of whom are appointed by the Governor-General.  Section 158 lists the primary functions of the ABA as follows:

“(a)     to provide advice to the ACA 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; and

           (da)      to conduct investigations as directed by the Minister under section 171; and

(e)          to design and administer price-based systems for the allocation of commercial television broadcasting licences and commercial radio broadcasting licences; and

(f)           to collect any fees payable in respect of licences; and

(g)         to conduct or commission research into community attitudes on issues relating to programs; and

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

(i)           to monitor compliance with those codes of practice; and

(j)           to develop program standards relating to broadcasting in Australia; and

(k)         to monitor compliance with those standards; and

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

(m)       to inform itself and advise the Minister on technological advances and service trends in the broadcasting industry; and

(n)         to monitor, and to report to the Minister on, the operation of this Act.”

28                  Section 160 provides that the ABA is to perform its functions in a manner consistent with the objects of the BS Act.  Section 162 is as follows:

“(1)     The Minister may give written directions to the ABA as to the performance of its functions but, except as otherwise specified in this Act, directions are to be only of a general nature.

(2)         The Minister must cause a copy of each direction given to the ABA to be published in the Gazette as soon as practicable after giving the direction.”

29                  The ABA relies on the facts that s 204 provides for application to be made to the Administrative Appeals Tribunal for review of certain decisions, specified in that section, and that the specified decisions do not include any of the “planning” decisions referred to in ss 24, 25 and 26.

Background facts

30                  The nature of the question for determination requires reference to the background facts only to the extent necessary to explain how this proceeding comes before the Court.  The following account is based on the parties’ agreed statement of facts.

31                  In September 1993, pursuant to s 24 of the BS Act, the ABA determined and published a lengthy document called “Planning Priorities”.  This included the ABA’s determination of priorities for the preparation of licence area plans, including a plan for zone 8, described as “Sydney and Central NSW Coast”.

32                  In August 1994, pursuant to s 25 of the BS Act, the ABA prepared a frequency allotment plan which determined the number of channels that were to be available to provide broadcasting services throughout Australia, including in the Sydney and Central NSW Coast area.    This document indicated that, within zone 8, there would be two commercial radio channels serving the Gosford area.  The document stated that there were already two licensed services in the area and that no new channel was available.

33                  In February 1998 the ABA published an information booklet, “Planning for Radio Broadcasting Services in Sydney, Katoomba and Gosford”.  The booklet identified, inter alia, the two existing commercial services as the VHF-FM services having the call signs 2CFM (frequency 101.3 MHz) and 2GGO (frequency 107.7 MHz).  Although the booklet did not say so, RGC was, and is, the licensee of both these services.  The booklet indicated that, under the draft licence area plan for Newcastle issued in November 1997, it was proposed to make a VHF-FM channel, with a frequency of 104.5 MHz, available for an additional commercial radio service in Newcastle; but if this did not eventuate, the frequency could be made available in Gosford.

34                  In May 1998 the ABA published a further booklet, “The ABA’s General Approach to Planning”, and invited submissions from persons interested in the preparation of a licence area plan for the Gosford area. The ABA received submissions from 29 persons, including two from RGC.

35                  On 26 August 1999 the ABA approved the release of draft licence area plans for Sydney, Gosford, Katoomba and Lithgow.  The draft licence area plan for Gosford showed three commercial radio licences for the Gosford area, the two existing services and a new one proposed for frequency 104.5 MHz.

36                  On 30 August 1999 the ABA published a news release seeking comments on the drafts.  Advertisements were placed in newspapers in September 1999 seeking submissions on the draft licence area plan for the Gosford area.  The ABA received submissions about this draft from 36 persons, including one from RGC.

37                  On 25 February 2000 the ABA distributed to 80 persons a document entitled “Consultation Paper for Broadcasting Services: Proposed changes to Gosford Draft Licence Area Plans”. This document discussed the proposal to make an additional commercial radio service available in Gosford on a 104.5 MHz frequency.  In response, the ABA received seven submissions, including one on behalf of RGC.

38                  On 31 August 2000 the ABA determined to make a plan for broadcasting services in the Gosford area of New South Wales, pursuant to subs 26(1) of the BS Act.  That plan included making available three commercial radio broadcasting services for the Gosford area, being the three services previously mentioned.  The ABA resolved, pursuant to subs 25(2) of the BS Act, first  to vary the frequency area plan accordingly and, second, to adopt certain written reasons for decision. 

39                  On 3 September 2000 the ABA published a news release stating the licence area plan for Gosford had been released. On 13 September a notice was published in the Gazette, advising, among other things that:

“¼on 31 August 2000, the Australian Broadcasting Authority prepared the licence area plan that determines the number and characteristics, including terminal specifications, of radio broadcasting services that are to be available in the Gosford region with the use of the broadcasting services bands.”

Reasoning

40                  There is no simple rule for determining whether a decision is of an administrative or a legislative character.  As long ago as 1932, the Report of the Committee on Ministers’ Powers (“the Donoughmore Committee”) (HMSO Cmd 4060) stated (at 19):

“It is indeed difficult in theory and impossible in practice to draw a precise dividing line between the legislative on the one hand and the purely administrative on the other; administrative action so often partakes of both legislative and executive characteristics.”

In the decided cases, various factors have been referred to as supporting an administrative or a legislative characterisation. The present parties have referred to particular considerations, taken into account in earlier cases, in support of their respective positions. 

41                  In SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604 (“SAT FM”), Sundberg J held that a decision of the ABA, under subs 26(1) of the BS Act, to prepare a licence area plan was not a decision “of an administrative character” within the AD(JR) Act.  His Honour referred to features of the BS Act which he said were against that characterisation.    In the present case, RGC contends Sundberg J’s decision was wrong; the ABA supports it.

42                  It is convenient to deal seriatim with the considerations discussed in the decided cases or raised by counsel in argument before us.  However, it must be emphasised that the task of the Court, at the end of the day, is to make a judgment on the critical issue that takes into account all of these considerations.  No one consideration is decisive of the issue.

Determining content of a general rule as distinct from the application of a rule to particular facts

43                  Perhaps the most commonly stated distinction between the two types of decision is that legislative decisions determine the content of rules of general, usually prospective, application whereas administrative decisions apply rules of that kind to particular cases.  This distinction was referred to in J W Hampton & Co v United States (1928) 276 US 394 at 407; The Commonwealth v Grunseit (1943) 67 CLR 58 (“Grunseit”) at 82 per Latham CJ; Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 66-67 per Latham CJ; Hamblin v Duffy (1981) 50 FLR 308 (FCA/Lockhart J) at 314; Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325 (FCA/FC) (“Tooheys”) at 331; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 (“Blewett”) at 635 per Gummow J; Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 (“Aerolineas”) at 107; and see de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5^th ed, 1995) (“de Smith”)at 1006. 

44                  In Tooheys a Full Court of this Court stated (at 331):

“The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit [(1943) 67 CLR 58], Hamblin v Duffy [(1981) 50 FLR 308] and de Smith’s Judicial Review of Administrative Action (4^th ed.), p71.  In Commonwealth v Grunseit Latham CJ expressed [at 82] the distinction in these terms: ‘The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases’.”

45                  In its Report to the Attorney-General, Rule Making by Commonwealth Agencies (Report No 35, AGPS Canberra, 1992) the Administrative Review Council stated as follows (at pars 3.2 to 3.4):

“3.2     In broad terms, legislative action involves the formulation of general rules of conduct, usually operating prospectively.  Executive or administrative action, by contrast, applies general rules to particular cases.

3.3              While this distinction is a useful starting point, it does not hold in all cases.  Thus, a recent Act of the Victorian Parliament was directed to ‘the care or treatment and the management’ of a named individual [Community Protection Act 1990 (Vic)].  It was unquestionably legislative in character because it altered pre-existing law.  Similarly, executive action may have a wider effect than the particular case for which it was originally made.  An example is the power under the Customs Act 1901 to make a Commercial Tariff Concession Order at the request of an importer for a particular act of importation.  The order can then be applied to other like cases.

3.4              Three characteristics might be used to distinguish legislative action from executive action – determination of the content of the law; the binding quality of the rules; and the generality of their application.  The first is likely to be conclusive.  The presence of the second and third in combination is also a very strong indicator that an instrument is legislative in nature.”

46                  De Smith states (at 1006):

“A distinction often made between legislative and administrative acts is that between the general and the particular.  A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of [sic – or] expediency or administrative practice.  Legal consequences flow from this distinction.”

But the learned authors proceed immediately to caution:

 “Since the general shades off into the particular, to discriminate between the legislative and the administrative by reference to these criteria may be a peculiarly difficult task, and it is not surprising that the opinion of judges as to the proper characterisation of a statutory function is at variance.”

47                  In the same vein, in Blewett, Gummow J observed (at 635) that to accept the general distinction stated by Latham CJ in Grunseitis not necessarily to accept the further proposition that, to qualify as a law, a norm must formulate a rule of general application;  “individual norms” which apply only to the action of a single person on a single occasion may still be classed as laws.

48                  In SAT FM Sundberg J said (at 607) a licence area plan under subs 26(1) of the BS Act “creates new rules of general application to those wishing to provide broadcasting services in the licence area, rather than applying such rules in a particular case to a particular broadcaster”.  He continued (at 607-608):

“A plan determines the number and characteristics of broadcasting services that are to be available in particular areas.  The creation or formulation of rules of law having general application rather than the application of those general rules to particular circumstances is an indicium of a legislative rather than an executive power …”  (Original emphasis)

49                  We agree with those observations.  The licence area plans which the ABA is required by subs 26(1) to prepare determine the number and characteristics of broadcasting services that are to be available in particular geographical areas of Australia.  The considerations to which the ABA is required to have regard are the general ones identified in s 23 of the BS Act, set out at para 18 above.  A licence area plan may be prepared for a geographical area in which there are not yet broadcasting services, or it may, as in the present case, be prepared for an area where such services already exist.  Preparation of the plan may (as in the present case) or may not have implications for an existing licensee.  Either way, the licence area plan lays down general parameters within which takes place the decision-making process (the allocation of licences) for which Part 4 of the BS Act provides.

50                  This first criterion for distinguishing between the legislative and the administrative points to determinations under subs 26(1) of the BS Act being of a legislative character, not an administrative one.

Parliamentary control

51                  In Blewett Gummow J stated (at 633-634):

“The decisions to which the ADJR Act applies are limited, inter alia, by the requirements of the definition in s 3(1) that they be made ‘under’ an ‘enactment’ (…) and that they be ‘of an administrative character’.  That expression is not further defined.  But as Fox J explained in Evans v Friemann (1981) 35 ALR 428; 53 FLR 229 at 234-7, (i) the use of the term “administrative character” indicates that the ADJR Act recognises and maintains the constitutional trichotomy (found in Chs I, II and III of the  Constitution) between the legislative, the administrative and the judicial as an exhaustive description of decision-making, and (ii) in each of these spheres there will be many incidental functions which display some of the characteristics of principal activities in other fields, so that the judges may make rules of court, the Parliament may punish for contempt of the Parliament, and administrators may make some findings of fact conclusively.

Nevertheless, the primary characteristic of the activities of administrators in relation to enactments of the legislature is to maintain and execute those laws, as is indicated by the terms of s 61 of the Constitution itself.  As a result of the holding in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, and the accepted constitutional doctrine flowing from that case, the Constitution does not forbid the statutory authorisation of the Executive to make laws: see Zines, The High Court and the Constitution, 2^nd ed, pp 146-53.  In doing so, the Executive is not exercising the power contained in s 61 of the Constitution.  The prerogative power to make law without statutory mandate is limited: Davis v Commonwealth (1988) 82 ALR 633 per Brennan J.  Rather, the federal legislative powers of the Parliament (found principally in Ch I of the Constitution) authorise the Parliament to repose in the Executive an authority of an essentially legislative character, at least where the exercise of the authority is subject to a measure of parliamentary control.  …

The delegation of legislative authority has most frequently been effected by reposing a regulation-making power in the Governor-General in Council.  Decisions under an enactment by the Governor-General in Council (whether the decisions are legislative or administrative in character) are excluded from the definition of decisions to which the ADJR Act applies: Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 16 FCR 267 at 271-4; 73 ALR 33.

However, delegation by the Parliament may also be made to other personae designatae (for example particular Ministers of State for the Commonwealth) subject to parliamentary control by procedures for disallowance by either House such as those found in ss 48, 49, 49A and 50 of the Interpretation Act.”

52                  In Aerolineas Beazley J said (at 109) that, in Blewett, Gummow J “identified control by the Parliament as a fundamental characteristic of legislative power reposed in the Executive”.  That statement may be accepted, on the understanding that Gummow J did not suggest parliamentary control was an essential characteristic of such a power.  Beazley J  referred also to the statement by Pearce in Delegated Legislation (1^st ed, at [63]) that publication is a fundamental requirement of a legislative act.  The learned author’s full statement was: “Publication of legislation is, of course, fundamental if society is not to be governed by secret laws.”  Professor Pearce was stating a  desirable, rather than an essential, feature of legislation.

53                  In Aerolineas the decision in question was one by the Federal Airports Corporation, under s 56 of the Federal Airports Corporation Act 1986 (Cth), fixing charges in respect of aircraft landings at various airports.  In holding that the determination was a decision of an administrative character, for the purposes of the AD(JR) Act, Beazley J gave weight (at 110) to the facts that the determination was not subject to disallowance by Parliament and that notification in the Gazette was not a pre-condition to the determination’s coming into effect. On appeal (Federal Airports Corporation v Aerolineas Argentinas (1997)76 FCR 582), Lehane J, with whom Beaumont and Whitlam JJ agreed, noted (at 592) that, by contrast with determinations fixing landing charges, by-laws, also made by the Federal Airports Corporation, were required to be published in the Gazette and were subject to parliamentary disallowance (subss 72(4) and (5) of the same Act), as were regulations made by the Governor-General under s 74 of the Act. However, Lehane J cautioned it should not be forgotten that, as was stated in Tooheys(at 331), “[t]he capacity of by-laws, like regulations, orders and rules, to assume either a legislative or an administrative character, is well recognised”.

54                  In Vietnam Veterans’ Affairs Association v Cohen (1996)70 FCR 419 (“Vietnam Veterans”), there was an issue as to whether the Court had jurisdiction under ss 5 and 6 of the AD(JR) Act to review, inter alia, two Statements of Principles determined by the Repatriation Medical Authority under subss 196B(2) and (3) of the Veterans’ Entitlements Act 1986 (Cth).  Tamberlin J thought it a “relevant but not controlling feature” that the Statements of Principles were “disallowable” instruments (see s 196D of the Veterans’ Entitlements Act 1986 (Cth)).  His Honour said of the two instruments in question (at 428):

“They have in fact been laid before both Houses of Parliament as required before they were implemented.  The making of the Statements must be notified in the Gazette to ensure publicity.  They are subject to disallowance by either House.  Consequently they are subjected to public exposure, comment, objection and criticism, and to parliamentary disallowance as part of the political process.”

Tamberlin J thought the analysis by Beazley J in Aerolineas supported a conclusion that the decisions to make the Statements of Principles were not of an administrative character.

55                  Section 35 of the BS Act provides that, if the ABA makes an instrument (including a licence area plan) under Part 3 of that Act, it must publish in the Gazette a notice stating the instrument has been made and the places where copies of it can be purchased.  Accordingly, there is provision for publicity.  There is not, however, a provision for disallowance by Parliament.   This omission is highlighted by the circumstance that the BS Act provides for disallowance by Parliament of certain other instruments made under its provisions.  For example, s 20 so provides in respect of notices under s 19 determining or clarifying criteria for distinguishing between categories of broadcasting services.  Again, s 32 so provides in relation to a notice given by the Minister to the ABA under s 31 reserving capacity in the broadcasting services bands for national or community broadcasting services.

56                  The absence of any provision for disallowance by Parliament points against characterisation of a decision under subs 26(1) of the BS Act as legislative.  However, although persuasive, the absence is not fatal to such a characterisation.  No case declares provision for disallowance to be a litmus test of legislative character.  Its absence is to be taken into account as a factor pointing against that character, but that is all.  Ultimately, we feel, it is outweighed by other considerations.

Publication of making of licence area plan

57                  As noted above, the making of a licence area plan must be notified in the Gazette.  The notice must also state where copies of the instrument can be purchased.  In SAT FM Sundberg J observed (at 608) that a requirement of publication has been seen as suggesting the legislative character of the subject of the publication.  His Honour cited the judgment of Beazley J in Aerolineas at 109, referred to in para 52 above, and the passage from the judgment of Tamberlin J in Vietnam Veterans at 428, quoted in para 54 above.

58                  We do not find the publicity requirement to be a compelling indication of the legislative character of the decision.  Some decisions which are clearly administrative must be notified in the Gazette: for example, a Ministerial declaration which effects the acquisition of land by compulsory process: Lands Acquisition Act 1989 (Cth) s 41.  Nonetheless, the requirement of publication is consistent with the decision having a legislative character.

Wide public consultation

59                  Section 27 of the BS Act is set out at para 20 above.  It will be recalled that subs 27(1) provides that, in performing its functions under ss 24, 25 and 26 of the BS Act, the ABA “must make provision for wide public consultation”.  Similarly, subs 27(2) requires that the ABA keep a record of, and make available for public inspection, all advice received by it, and assumptions made by it, in performing its functions under ss 24, 25 and 26.  RGC submits that the obligation of wide public consultation is directed to natural justice considerations and is therefore a pointer to the decision being one of an administrative nature.  In SAT FM, on the other hand, Sundberg J (at 608) treated this obligation as endowing a decision to make a licence area plan with “a legislative rather than an administrative character”.

60                  In our view, the obligation of wide public consultation does not arise out of a natural justice concern to give a hearing opportunity to interests which might be adversely affected by the making of a licence area plan.   Rather, it seems to us, the obligation is directed to ensuring that the ABA will “promote the objects of [the BS] Act” and “have regard to” the considerations identified in s 23.  The objects of the BS Act are stated in broad terms.  The considerations identified in s 23 include “the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally”.  A proper appreciation of these matters is likely to be facilitated by “wide public consultation”. The Explanatory Memorandum for the Broadcasting Services Bill 1992 stated of the provision which became subs 27(2) (at 32):

“This is one of the many provisions in this Act which are intended to make the ABA accountable in the exercise of its powers and performance of its function.”

61                  It seems to us that, if anything, the requirement of wide public consultation emphasises the general nature of a licence area plan, and so adds weight to the first consideration dealt with at paras 43 to 50 above. The accountability to which subs 27(2) is directed does not indicate that the decision to make a licence area plan is of an administrative character.

The wide policy considerations

62                  In preparing a licence area plan the ABA must: (i) promote the objects of the BS Act including the economic, and efficient use of the radiofrequency spectrum, and (ii) have regard to the broad considerations listed in s 23 (set out at para 18 above); and perform its functions consistently with the regulatory policy described in s 4 of the BS Act, any general policies of the Government notified by the Minister under s 28 of the Commonwealth Authorities and Companies Act 1997 (Cth) and any directions given by the Minister in accordance with the BS Act: see s 160 of the BS Act. 

63                  In SAT FM Sundberg J commented (at 608) “[t]he subject matter for decision involves complex policy questions”, which he thought to be another pointer to a decision to make a licence area plan under subs 26(1) being of a legislative character.

64                  RGC relies on Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 (“Century Metals”).  In that case a Minister commissioned an inquiry into proposals to recommence mining operations on Christmas Island.  The inquiry was conducted by a liquidator of the Government-owned company which had previously conducted the mining operations.  There were competing commercial proposals, one of which the liquidator recommended to the Minister for acceptance.  The Minister acted on the recommendation.  A company whose proposal was not accepted applied under the AD(JR) Act for review of the decisions made by the liquidator and the Minister.  The Full Court held that a decision was not rendered immune from the AD(JR) Act by the mere circumstances that it was purportedly made in the public interest and was politically controversial. The Court stated (at 588):

“It is true that the matters which might legitimately be considered in any assessment of the mining proposals include social and political factors upon which views might differ.  It is also true that the Minister was politically accountable for his ultimate decision.  These factors might make it difficult for any person to challenge the Minister’s decision on the ground that he failed to take account of a relevant fact; the Minister must be regarded as having a wide discretion in the selection of relevant factors, especially in the absence of any statutory guidance: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-42.  Similarly, except perhaps where it is possible to demonstrate an operative illogicality in any process of reasoning revealed by the Minister as the basis of his decision, it would probably be impossible to impugn the decision as unreasonable, in the Wednesbury sense: see Peko-Wallsend at 309-310.  But there is no reason why these factors should be treated as immunising the decision from review on other grounds, for example because of some procedural irregularity.”

65                  It was not disputed in Century Metals that the two impugned decisions were decisions of an administrative nature.

66                  The breadth of the considerations which the ABA is required to take into account in making a licence area plan does not alone compel a conclusion this is not an administrative act.  More persuasive are the nature and impact of the resulting decision.  Nonetheless, the present consideration is consistent with a legislative result.

The power to vary a licence area plan

67                  In SAT FM Sundberg J thought the power of the ABA, by notice in writing, to “vary” a licence area plan was analogous to a legislature’s power to amend legislation.

68                  RGC responds by referring to subs 33(3) of the Acts Interpretation Act 1901 (Cth), which provides that, where an Act confers a power to make, grant or issue any instrument, the power shall, unless the contrary intention appears, be construed as including a power to repeal, rescind, revoke, amend, or vary any such instrument. RGC points out this provision applies to any instrument, including one expressing a decision of an administrative character (as well, of course, as an instrument expressing a decision of a non-administrative character).  In sum, so the submission goes, the power to vary a licence area plan, given by subs 26(2) of the BS Act, is neutral on the question before the Court.

69                  We  agree with RGC that  this consideration is neutral.

Absence of executive variation or control

70                  In SAT FM Sundberg J observed (at 608) that “[o]nce a plan is made, it is not subject to executive variation or control”.  He referred to Vietnam Veterans at 428-429 and Aerolineas at 110 as supporting the proposition that this feature suggests an administrative characterisation.  In Aerolineas statutory provision for executive control was seen by Beazley J as indicating that the fixing of landing charges by the Federal Airports Corporation bore an administrative character; while, in Vietnam Veterans, Tamberlin J thought the absence of that feature suggested the Statements of Principles made by the Repatriation Medical Authority were legislative instruments.

71                  We think the absence of provision for executive variation or control is an indicator that a decision of the ABA under subs 26(1) has a legislative character. The ABA itself can vary a licence area plan (subs 26(2)) and the Minister is empowered to give other directions to the ABA (cf ss 31(1), 160(c), 162, 163), but the Minister cannot control the ABA in formulating a licence area plan (s 163).

Absence of merits review of decisions under subs 26(1) of the BS Act

72                  In SAT FM Sundberg J relied on the omission of decisions under s 26 from the list of decisions, in respect of which review by the Administrative Appeals Tribunal is available.  His Honour thought this suggested the legislature regarded decisions under s 26 as being of a legislative character. 

73                  Section 204 lists, in a table, decisions reviewable by the Tribunal, the provisions of the BS Act under which those decisions are made and the persons by whom review applications may be made.  For example, an applicant for a licence may apply to the Tribunal for review of a decision under subs 40(1) refusing the person’s application for allocation of a licence.  Similarly, the reviewable decisions include a decision that a person is not a suitable applicant or licensee (under subs 41(2) of the BS Act) and a decision to suspend or cancel a licence (under subs 143(1)). 

74                  In regarding as relevant the fact that the BS Act provided for review by the Tribunal of certain decisions made under its provisions, but did not include among them a decision under subs 26(1), Sundberg J referred to Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 FCR 463 (“Austral Fisheries”) at 471-472.  That case concerned the power of the Minister, under s 7B of the Fisheries Act 1952 (Cth), “by instrument in writing, to determine a plan of management for a fishery”.  O’Loughlin J concluded that a decision of the Minister to determine a plan of management was of a legislative, not an administrative, character.  His Honour noted that s 16A of the Fisheries Act 1952 (Cth) provided for application to be made to the Administrative Appeals Tribunal for review of a “reviewable decision”, a term that was defined in that section in a way that did not include a determination under s 7B.  He thought this circumstance supported characterisation of such a determination as legislative rather than administrative.  (On appeal, the Full Court was not required to decide if his Honour was correct because the Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) was invoked in any event: see (1993) 40 FCR 381 at 396-398.)

75                  RGC seeks to distinguish Austral Fisheries. There are differences between that case and the present one.  In particular, subs 7C(6) of the Fisheries Act 1952 (Cth) provided that a determination under subs 7B(1) with respect to a plan of management for a fishery was deemed to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975 (Cth), yet there is no provision in the BS Act to the effect that a determination under subs 26(1) is deemed to be an enactment for those purposes.

76                  However, the point made by Sundberg J remains valid.  In s 204 of the BS Act, the legislature specified what decisions under that Act should be reviewable by the Tribunal.  The legislature did not include a decision under subs 26(1). With one exception, all the decisions mentioned in s 204 are decisions under provisions occurring in Parts of the BS Act subsequent to Part 3.  (The exception is a declaration by the ABA under subs 6(3) that a drama program is not an “Australian drama program”.)  They are all decisions of a kind apt to impact directly on private interests.  Although not conclusive, the omission from s 204 of the more general “planning” decisions of the ABA, for which Part 3 provides, is a further indication that the legislature did not consider those decisions (including a decision under subs 26(1)) to be of an administrative character.

Binding legal effect of licence area plans

77                  In SAT FM Sundberg J stated (at 608-609):

“A plan has binding legal effect once prepared, in the sense that various statutory provisions are only enlivened following its preparation.  Thus, before allocating a new broadcasting services bands licence, the Authority must designate one of the areas referred to in s 26 as its licence area: s 29.

The ‘areas referred to in section 26’ are areas in plans in fact prepared by the Authority.  A person may not exercise control of more than two commercial radio broadcasting licences in the same licence area: s 54.  The Authority  may  determine  the  licence  area  population  of the licence area (s 30), and this determines the number of television licences a person can control: s 53.  The fact that a plan has this ‘carry-on’ effect supports its characterisation as a legislative measure: cf Austral Fisheries at 472 and Vietnam Veterans at p 19 [His Honour’s page reference was to the unreported version of the judgment – see now (1996) 70 FCR 419 at 427].”

We agree this consideration is a further indication that a decision under subs 26(1) is of a legislative character.  A licence area plan under s 26, like a determination of priorities under s 24 and a frequency allotment plan under s 25, is a general measure of a kind one might expect to find contained in the statute, if this were practicable, constituting the legislative background against which applications for, and allocations of, licences are enabled to take place.

Summary

78                  It is necessary to take into account all of the considerations discussed in paras 43 to 77 above; no single feature is decisive.  Taking them all into account, we are of the opinion that the determination of a licence area plan under subs 26(1) of the BS Act is a decision of a legislative, not an administrative, character. The considerations we find most persuasive are the following:

·        The licence area plan is of general application as distinct from being a determination which affects only particular individuals or is made with particular individuals in contemplation;

·        Notwithstanding the power of variation given by subs 26(2), a licence area plan is obviously expected to have a moderately long term application and to lay down parameters within which decisions affecting individuals will be taken;

·        There is a clear distinction between the planning concerns of Part 3 of the Act and the Part 4 provisions regarding allocation of licences which more directly affect the interests of individuals; and

·        Section 204 of the Act provides for review by the Tribunal of a wide range of decisions for which the BS Act provides, including decisions under Part 4 and subsequent Parts of the Act, but omits review of the preparation of a licence area plan under subs 26(1).

CONCLUSION

79                  The question for separate determination should be answered, “No”.  The costs of the separate determination should be reserved for decision by Moore J.

Associate:

Dated:              6 July 2001