FEDERAL COURT OF AUSTRALIA

Community Television Sydney Limited v Australian Broadcasting Authority [2004] FCA 443

ADMINISTRATIVE LAW - Broadcasting Services Act 1992 (Cth) - application for community broadcasting licence – Australian Broadcasting Authority required to have regard to specified considerations – whether Authority took into account extent to which proposed service would meet existing community needs given delay in commencement of service - whether the Australian Broadcasting Authority erred in not delaying the allocation of the community television license to a later date, thereby allowing the existing temporary licensee to continue until such time

Broadcasting Services Act 1992 (Cth) ss 3, 4, 5, 11, 15, 18, 23, 26, 31, 34, 80, 84, 85, 86, 87, 87A, 89, 92J, 117, 121, 139, 143, 154, 155, 158, 160; Schs 2, 3

Radiocommunications Act 1992 (Cth) ss 100, 101A

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13

Acts Interpretation Act 1901 (Cth) ss 4, 46A

Broadcasting Legislation Amendment Act (No 2) 2002 (Cth)

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 cited.

Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority (2003) 125 FCR 560 cited.

R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 cited.

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 cited.

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 applied.

Jones v Dunkel (1959) 101 CLR 298 distinguished.

Muin v Refugee Review Tribunal (2002) 190 ALR 601 applied.

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

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

COMMUNITY TELEVISION SYDNEY LIMITED v AUSTRALIAN BROADCASTING AUTHORITY & ANOR

N 378 of 2004

SACKVILLE J

SYDNEY

16 APRIL 2004

THE COURT ORDERS THAT:

1.                  Vacate the orders made on 22 and 25 March 2004.

2.                  The application be dismissed.

3.                  Subject to Orders 4-6, the applicant pay the second respondent’s costs of the proceedings.

4.                  Any party wishing to contend for a costs order other than the applicant paying the second respondent’s costs of the proceedings serve and file written submissions on costs within seven days.

5.                  If written submissions are served and filed in accordance with Order 4, any party wishing to oppose those submissions serve and file its submissions within a further seven days.

6.                  If written submissions are filed and served in accordance with Order 4, Order 3 is vacated.

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

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     In these proceedings, the applicant (‘CTS’) challenges a decision made by the first respondent, the Australian Broadcasting Authority (‘Authority’) on 18 March 2004.  On that date the ABA decided to allocate a community broadcasting licence (‘CTV licence’) for Sydney to the second respondent (‘TVS’) and not to CTS (the ‘allocation decision’).  The allocation decision was made pursuant to s 84 of the Broadcasting Services Act 1992 (Cth) (‘Broadcasting Act’) and took effect on 19 March 2004, when the licence was issued.  The same date, 19 March 2004, was also the date of expiry of CTS’s apparatus licence, which had been issued pursuant to s 100(1) of the Radiocommunications Act 1992 (Cth) (‘Radiocommunications Act’).  The allocation decision has been suspended by orders made by this Court.  Subject to the suspension, if the allocation decision stands and CTS receives no extension of its licence, it will be ‘off the air’.

2                     CTS challenges two aspects of the allocation decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’):

(i)                  The decision to allocate the CTV licence is said to be vitiated by reason of the Authority’s failure to have regard to a relevant consideration, or by it having taken into account an irrelevant consideration.

(ii)                In deciding to allocate the CTV licence from 19 March 2004, the Authority refused to extend CTS’s existing apparatus licence notwithstanding that the Authority recognised that TVS would probably need twelve months before it could commence broadcasting.  In refusing to extend the licence the Authority is said to have failed to take into account relevant considerations, taken an irrelevant consideration into account and not complied with s 5(1)(b) of the Broadcasting Act.  Alternatively, the decision is said to be manifestly unreasonable.

3                     The proceedings first came before Emmett J as duty Judge on 19 March 2004, when CTS sought urgent interim relief in view of the imminent expiration of its apparatus licence. His Honour made interim orders suspending the allocation decision until 22 March 2004 and staying all proceedings under the allocation decision.  The parties agreed on 22 March 2004 to an urgent final hearing.  That hearing took place on 25 March 2004, only seven days after the Authority’s decision.  The interim orders have been extended until further order.

4                     Two procedural matters should be mentioned.  First, presumably because of the urgency of the matter, CTS has not requested the Authority to provide a statement of reasons.  Section 13(1) of the ADJR Act provides for such a request to be made, but the decision-maker has up to 28 days to prepare and furnish the statement (s 13(2)).  Accordingly, no statement of reasons was before the Court.  Since no member of the Authority gave evidence, the factors it took into account in making the allocation decision must be inferred from other sources. 

5                     Secondly, at the hearing in this Court all three parties were represented by senior counsel.  Mr Gageler SC, who appeared with Mr Smark for the Authority, read without objection an affidavit, tendered some documents and made detailed submissions in opposition to the relief sought by CTS.  In the course of Mr Gageler’s submissions, I suggested that the role adopted by the Authority in the litigation, having regard to the fact that there was a contradictor present in the form of TVS, appeared to be inconsistent with the observations of the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at 35-36.  There the High Court pointed out that if a tribunal (or in this case the Authority) becomes a protagonist in litigation challenging its decisions

‘there is the risk that…it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted’. 

6                     Mr Robertson SC, who appeared for TVS, justified the Authority’s role on the ground that, in substance, it was simply providing assistance to the Court by explaining its powers and the operation of the Broadcasting Act.  Although the Authority presented valuable material explaining the background to the allocation decision, in my view it went beyond merely assisting the Court in relation to the Authority’s powers and procedures.  In effect, it resisted the applicant’s claim by addressing and attempting to refute each of its arguments.  In other words, it became a protagonist in the proceedings.  Consistently with the pronouncement of the High Court, unless there are exceptional circumstances, not present in this case, the Authority should not adopt this role.

7                     I note that in Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority (2003) 125 FCR 560, the Authority seems to have acted as a contradictor in proceedings challenging a decision to allocate a CTV licence.  Indeed, the Authority was ordered to pay the costs of the successful application to review its decision.  However, no objection seems to have been taken to the Authority acting in this way and the question was not addressed in the judgment.

the legislation

8                     The Broadcasting Act was enacted on 14 July 1992 and came into force on 5 October 1992.  The objects of the Broadcasting Act include the following (s 3):

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

9                     The Broadcasting Act creates the Authority as a body corporate which consists of a Chairperson, a Deputy Chairperson and not more than five other members (ss 154, 155).  At a meeting three members of the Authority constitute a quorum: Sch 3, cl 10(5).  The allocation decision was made at a meeting of the Authority attended by six members.  However, two members apparently absented themselves from the discussion concerning the allocation of the CTV licence in Sydney.  The decision was made by majority, with three members in favour of CTS being allocated the licence.  One member dissented.

10                  Section 4(1) of the Broadcasting Act states that Parliament intends that different levels of regulatory controls be applied across the range of broadcasting services

‘according to the degree of influence that different types of broadcasting services… are able to exist in shaping community views in Australia’.

Section 5(1) is as follows:

‘In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:

(a)       charges the [Authority] with responsibility for monitoring the broadcasting industry, the datacasting industry and the Internet industry; and

(b)       confers on the [Authority] a range of functions and powers that are to be used in a manner that, in the opinion of the [Authority], will:

(i)                 produce regulatory arrangements that are stable and predictable; and

(ii)               deal effectively with breaches of the rules established by this Act.’

11                  The functions of the Authority include providing advice to the Australian Communications Authority in relation to the designation of parts of the radiofrequency spectrum for broadcasting services; planning the availability of segments of the broadcasting services bands on an area basis; and allocating, renewing and cancelling licences under the Broadcasting Act (s 158(a)-(c)).  The Authority is to perform its functions in a manner consistent with the objects of the Broadcasting Act and the regulatory policy described in s 4 (s 160(a)).

12                  Part 3 of the Broadcasting Act deals with ‘Planning of the broadcasting services bands’.  The Minister has power to notify the Authority that capacity in the broadcasting services bands is to be reserved, among other things, for a specified number of community broadcasting services (s 31(1)).  The Authority’s responsibilities include preparing licence area plans that determine the number and characteristics of broadcasting services to be available in particular areas of Australia (s 26) and allocating unused parts of the radiofrequency spectrum for a variety of purposes (s 34).  Section 23 provides as follows:

‘In performing functions under this Part, the [Authority] 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

…

(g)               such other matters as the [Authority] considers relevant.’

13                  The Broadcasting Act provides for categories of broadcasting services including ‘community broadcasting services’ (s 11(c)) and ‘open narrowcasting services’ (s 11(f)).  Section 15 provides that ‘community broadcasting services’ are broadcasting services that

‘(a)      are provided for community purposes; and

(b)           are not operated for profit or as part of a profit-making enterprise; and

(c)           that provide programs that:

(i)                 are able to be received by commonly available equipment; and

(ii)               are made available free to the general public; and

(d)           comply with any determinations or clarifications under section 19 in relation to community broadcasting services.’

Section 18(1) provides that ‘open narrowcasting services’ are 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.’

14                  Part 8 of the Broadcasting Act provides for the determination of ‘class licences’.  Section 117 empowers the Authority to determine a class licence, inter alia, for the provision of open narrowcasting television services (s 117(e)).  Section 121 makes class licences ‘disallowable instruments’ for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth).  Class licences are generic in character, in the sense that they are not issued to particular licensees.

15                  Section 34 of the Broadcasting Act is headed ‘Alternative uses of broadcasting bands’.  It permits the Authority, in certain circumstances where part of the radiofrequency spectrum is not otherwise required for transmission services, to determine that the unrequired radiofrequency spectrum is available, inter alia, to temporary community broadcasting licensees or to providers of open narrowcasting services (s 34(1)(ea), (f)). The circumstances include the case where spectrum has been reserved under s 31 but has not been made available for the purpose for which it was reserved (s 34(1)(c)).

16                  Part 6 of the Broadcasting Act deals with ‘community broadcasting licences’.  This expression is defined to mean a licence under Part 6 to provide a ‘community broadcasting service’ as defined in s 15.  Where the Authority intends to allocate a community broadcasting licence, it must advertise for applications from Australian companies that ‘represent a community interest’ (s 80(1)).  Section 84(2) of the Broadcasting Act provides as follows:

‘In deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ABA is to have regard to:

(a)       the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and

(b)       the nature and diversity of the interests of that community; and

(c)        the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and

(d)       the capacity of the applicant to provide the proposed service; and

(e)        the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and

(f)        the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a community broadcasting licence.’

The Authority is not, however, required to allocate a community broadcasting licence to any applicant (s 85).

17                  The provisions in the Broadcasting Act relating to community broadcasting were amended by the Broadcasting Legislation Amendment Act (No 2) 2002 (Cth).  The amendments imposed additional conditions on community broadcasting licences under Part 6 of the Broadcasting Act to provide a service that provides television programs.  The intention of Parliament in imposing the additional conditions is stated by s 87A(1) to be that

‘services provided under CTV licences be regulated in a manner that causes them not to operate in the same way as commercial television broadcasting services’.

Among other things, the 2002 amendments liberalised the sponsorship rules for community broadcasting that provides television programs only.

18                  Each CTV licence remains in force for five years (s 89) and is subject to the conditions set out in Part 5 of Schedule 2 and such other conditions as are imposed under s 87 (s 86). Part 5 of Schedule 2, cl 9, imposes a number of conditions on CTV licences including the following:

‘(1)(h)the licensee will commence the provision of broadcasting services within one year of being allocated the licence or within such longer period as is notified in writing by the [Authority].

            …

 (2)(c)  the licensee will encourage members of the community that it services to participate in:

(i)                 the operations of the licensee in providing the service; and

(ii)        the selection and provision of programs under the licence’.

Breach of licence conditions specified in cl 9(1) are offences (s 139(4)) and may lead to suspension or cancellation of a licence by the Authority (s 143(1)).

19                  The Radiocommunications Act provides for apparatus licences, which include transmitter licences entitling the holder to operate specified radiocommunications transmitters (Part 3.3, Div 1).  The Australian Communication Authority is empowered to issue apparatus licences, including temporary community transmitter licences (ss 100, 101A).

BACKGROUND TO THE DECISION

20                  On 1 October 1992, in anticipation of the Broadcasting Act coming into force, the Authority determined a class licence for the provision of ‘open narrowcasting broadcast services’ under s 117(e) of the Broadcasting Act: see Acts Interpretation Act 1901 (Cth), s 4.

21                  On 22 December 1992, the then Minister for Transport and Communications, acting pursuant to s 162(1) of the Broadcasting Act, directed the Authority to give favourable consideration to a proposal that the broadcasting spectrum available for a sixth free-to-air analogue terrestrial television service be allocated to community access television on a continuing trial basis, pending review.

22                  At this time, the Broadcasting Act made no express provision for such a trial, there being no power to issue a temporary CTV licence (see now Part 6A).  The Minister dealt with the problem by notifying the Authority on 17 March 1994, pursuant to s 31(1) of the Broadcasting Act, that capacity in the broadcasting services band was to be reservedfor community broadcasting services.  That notice was subsequently revoked, and replaced with a notice reserving capacity for one community broadcasting service in each of the six State capital cities, and in Bendigo and Lismore.

23                  The Authority, acting pursuant to s 34(1) of the Broadcasting Act, then made available the relevant part of the spectrum for open narrowcasting services.  The Authority was empowered to take this step since the broadcasting services band spectrum reserved under s 31 had not been made available for the purpose for which it was reserved, no licence area plan under s 26 having been prepared.  Thus the precondition specified in s 34(1)(c) was satisfied.

24                  Next, the Authority assessed entities interested in participating in the trial.  Once a suitable entity had been identified for a particular area, the Authority invited that entity to apply for an apparatus licence.  The Authority issued a written instrument, pursuant to s 34(1)(f) of the Broadcasting Act, in respect of the area in question.  The instrument determined that part of the radiofrequency spectrum would be available during a specified period (usually, but apparently not always a twelve month period) for open narrowcasting services for community and educational non-profit purposes.  Apparatus licences were issued to trial participants under s 100 of the Radiocommunications Act by the Authority, acting for the purpose as the delegate of the Australian Communications Authority.

25                  This procedure was applied to UHF Channel 31 in Sydney.  CTS obtained apparatus licences for sixteen consecutive periods to provide an open narrowcasting television service for community and educational non-profit purposes.  The first such licence was in respect of the period 15 February 1993 to 28 February 1994.  The last period before the commencement of the present proceedings was for the period 1 January 2004 to 19 March 2004.  The relevant part of the radiofrequency spectrum for Sydney was made available under s 34 of the Broadcasting Act during all these periods.

26                  In 2001, at the request of the then Minister for Communications, Information Technology and the Arts, the Authority provided a report on its evaluation of the community television trial.  One outcome of the evaluation was a decision by the Authority to allocate a CTV licence for the Sydney area, using UHF Channel 31 for the purpose.  This required, among other things, the preparation of a licence area plan pursuant to s 26 of the Broadcasting Act.  This was completed on 21 November 2002.

27                  In January 2003, the Authority issued a ‘Guide to applying for a [CTV] licence’.  This document described the CTV licence allocation process, and explained the legislative requirements applicable to providers of CTV services.  It also described the application form that had to be completed (ABA 64).  The Guide contained the following statements:

‘Trial CTV licences

A licence held under the trial arrangement (i.e. non-profit community/educational open narrowcasting licences) will be revoked on the allocation of a CTV licence issued pursuant to s 84 of the [Broadcasting Act].

…

The [Authority] may revoke current licences held by CTV licensees in the CTV trial prior to the expiry of these licences on 31 December 2003, in the event that the allocation of the CTV licences currently being offered is completed prior to this date.’

28                  On 17 February 2003, the Authority issued a press release inviting applications for a permanent CTV licence for each of several cities, including Sydney.  In consequence, the Authority received six applications for the Sydney CTV licence, including the applications from CTS and TVS.  Thereafter the Authority conducted a lengthy evaluation process.

29                  On 9 December 2003, the Authority advised CTS by letter that it would continue to make available spectrum in Sydney under s 34 of the Broadcasting Act for an open narrowcasting television service for community and educational non-profit purposes until 19 March 2004.  The letter stated that the extension had been made to enable the Authority to finalise its allocation decision for the CTV licence in Sydney.

30                  On 5 January 2004, a further apparatus licence was allocated to CTS for the period 1 January 2004 to 19 March 2004.

31                  The Authority’s meeting of 18 March 2004 had before it an Agenda Paper, prepared by the staff of the Authority, recommending that the Authority decide to allocate the CTV licence for Sydney to TVS.  The Paper also recommended that the Authority should require TVS to report on a monthly basis on the status of its efforts to raise the funds to establish the service.  The Agenda Paper recorded that the Contact Officer was Gina Herro and that the document had been cleared by Jonquil Ritter.  There was no evidence as to their positions with the Authority.

32                  The Agenda Paper explained that four of the six applicants did not satisfy the criteria specified in s 84(2) of the Broadcasting Act.  It recommended the allocation of the CTV licence to TVS:

‘on the basis that the service would better meet the needs of the general community in the Sydney licence area than would that of CTS.  TVS and CTS have both demonstrated equivalent financial and technical capacity to provide the proposed services.’

33                  The Agenda Paper gave three reasons for preferring TVS over the ‘triallist’ CTS.  First, TVS’s proposed ‘consortia model’ was preferable to the individual and organisation based model prepared by CTS, as it would better promote program diversity and provide increased opportunities for access and participation in the service through the consortium member organisations.  Secondly, TVS had demonstrated to a higher degree than CTS that it would:

‘meet the existing and perceived future needs of the community in the Sydney licence area which are not currently being met by existing broadcasting services by identifying the needs and interests of its audience.  Although CTS provided evidence from Oztam of a reasonable monthly audience, it has not identified the specific needs of the community that it proposes to serve.  Further, TVS has demonstrated that it will meet the needs of a broader cross-section of the community than would CTS, which proposes to focus on programming aimed at the non-English speaking community (22%), the over 50s demographic (22%) and local programming for English speakers (56%).  In effect, almost half of CTS’ programs focus on only two segments of the community.  In contrast, TVS proposes programming aimed at a wide variety of individual interests and numerous groups in the community.’

Thirdly, TVS had demonstrated to a higher degree than CTS that it would encourage members of the community to participate in the operations and programming of the proposed service.

34                  The Agenda Paper stated that TVS primarily aimed to provide ‘diverse and innovative programming’ relevant to ‘local communities, disenfranchised and minority groups, and people from non-English speaking backgrounds and minorities and indigenous… people’.  In contrast, CTS’s proposed service had a ‘more narrow programming focus’.

35                  The Agenda Paper also concluded that TVS had the financial capacity to provide the proposed service.  However, in the light of the Authority’s experience with another licensee, which had difficulties in arranging finance, the Agenda Paper recommended that TVS report on a monthly basis on its efforts to raise funds:

‘This will ensure that the [Authority] is kept abreast of TVS’ progress which will enable it to quickly consider its options if TVS is not able to commence within the 12 month timeframe prescribed in the Act.’

36                  Under the heading ‘Other allocation options’ the Paper said this:

‘On the evidence before the [Authority], it appears that TVS has demonstrated to a higher degree that it merits the Sydney licence over CTS for a number of reasons.  A decision to give the licence to TVS will result in taking off air a service that has been broadcasting for 10 years with considerable support from parts of the Sydney community.  Further, it is likely that TVS would need 12 months before it could commence broadcasting.  CTS and its supporters may therefore argue that there are public interest grounds in allocating the licence to them. If the [Authority] were minded to allocate the CTV licence to CTS it could attempt to address some of the weaknesses in CTS’ application in a number of ways.’

The Agenda Paper then discussed three ways in which the weaknesses in CTS’s application might be addressed.  However, the Agenda Paper expressed the view that even if these options were implemented, they would be unlikely to cure those weaknesses.

37                  The Agenda Paper also included the following passages:

‘SENSITIVITIES

12.       Strong criticism from the triallist in Sydney, CTS, its supporters and program providers is inevitable if the [Authority] adopts the recommendation in this paper, given that CTS has been broadcasting since 1994 and has an extremely strong expectation that it will be successful in obtaining a permanent licence.  A decision of this nature may be challenged in the Federal Court.

13.       Licensing [section of the Authority] notes that TVS has indicated that if it is the successful applicant, all community groups currently broadcasting with CTS are welcome to join the TVS consortium partner SLICE TV and apply to broadcast programs… It is recommended that the ABA strongly encourage TVS to grant access to the CTS program providers.  The imposition of a condition could be considered in due course if necessary.  Criticism from CTS’ supporters and program providers is likely to be minimised if this occurs.

            …

TIMING/PRIORITY

15.       This is a high priority matter given that CTS’ trial expires on 19 March 2004.  The expiration of CTS’s trial licence only one day after the [Authority] meeting is potentially a sensitive issue if the [Authority] rejects the recommendations in the paper or is otherwise reluctant to make an immediate decision.  Each licence extension involves some expense to CTS, so it would be unreasonable to continue access to airtime in small timeframes.  Conversely, a relatively long licence extension may, depending on what the [Authority] does next, run the risk of CTS remaining on air for a significant period after it is informed it has failed to obtain a permanent licence.

COMMUNICATIONS

17.       A news release and Ministerial briefing will be issued should the [Authority] adopt the recommendations in this paper.

            …

19.       The [Authority] has received letters of support for CTS from 11 politicians.  It is proposed as part of the media strategy that staff write to each of these MPs explaining the reasons for decision in order to minimise any political backlash.’

38                  No formal minutes of the Authority’s meeting of 18 March 2004 were tendered at the hearing, apparently because they had not then been prepared.  A handwritten note prepared at the meeting indicates only that three members of the Authority were in favour of ‘the proposal’ and one was against.  I infer that the proposals adopted were the recommendations made in the Agenda Paper.  One staff member, a Ms Koller, is recorded as having been present when the Authority’s decision was taken.

39                  On the same day as the meeting, the Authority issued a press release.  It included the following:

‘In its assessment of the two remaining applicants (TVS and the previous triallist CTS), the [Authority] found that the service proposed  by TVS would better meet the existing and perceived future needs of a broader cross-section of the Sydney community than CTS’ proposed service.

“This has been a particularly difficult decision for the [Authority] to make in view of the fact that CTS has been operating a trial community television service for many years,” said Professor Flint [Chairperson].  “The [Authority] acknowledges CTS’ lengthy commitment to community television over the years.  However, the Authority was of the view that TVS has demonstrated, to a higher degree than CTS, that it has established avenues through which members of the community may participate in the operations and programming of the proposed service.”

Spectrum for the sixth channel community television trial in Sydney expires on 19 March 2004.  TVS is required to commence its service within a maximum one year from the date of allocation of the licence.

“While there will obviously be some delay while TVS establishes its service, the [Authority] expects it to be on air as soon as possible and that once it is, every effort will be made to continue to meet the needs and interests of the ethnic communities that have been served by CTS”, said Professor Flint.’

40                  By a letter sent by fax on the afternoon of 18 March 2004, the Authority notified CTS of the decision to allocate the CTV licence to TVS.  The letter included the following paragraph:

‘Out of the six applications for this licence, TVS was better able to demonstrate that it met the criteria set out at section 84 of the [Broadcasting Act].  The [Authority] considered that TVS demonstrated, to a higher degree than CTS, that it would meet the existing and perceived future needs of the community in the Sydney licence area which are not currently being met by existing broadcasting services.  TVS demonstrated that it will meet the needs of a broader cross-section of the community than would CTS, which proposes to focus on programming aimed at the non-English speaking community, the over 50s demographic and local programming for English speakers.  In contrast, TVS proposes programming aimed at a wide variety of individual interests and numerous groups in the community.  The [Authority] also considered that TVS demonstrated, to higher degree than CTS, that it would encourage members of the community to participate in the operations and programming of the proposed service.  CTS’ reliance on income from purchased airtime may limit the access of community groups that could not otherwise afford to broadcast their programs.

The letter also repeated some of the material contained in the press release.

41                  On 19 March 2004, the Authority issued TVS with a permanent CTV licence.

42                  By letter dated 19 March 2004, CTS’s solicitors pointed out that CTS would be obliged to cease broadcasting from midnight that night.  This was said to be manifestly unreasonable.  The letter requested a six weeks extension of the licence pursuant to s 92J of the Broadcasting Act, which empowers the Authority to vary the licence period of a temporary CTV licence.

43                  The Authority responded to this letter by pointing out that CTS had a transmitter licence for an open narrowcasting service and not a temporary CTV licence.  Moreover, so the Authority said, spectrum for the open narrowcasting service could not be made available under s 34 of the Broadcasting Act once a permanent CTV licence had been allocated under s 84.  For those reasons no extension could be granted.  CTS has not sought to challenge the Authority’s decision not to extend CTS’s licence.

SUBMISSIONS

44                  CTS challenged the decision to allocate the licence to TVS on the ground that s 84(2)(a) and (d) of the Broadcasting Act required the Authority to take into account the existing capacity of the competing applicants to provide a television service.  Since the Authority was aware that TVS would probably not commence operations for about twelve months, it should have given weight to CTS’s existing capacity to provide a service.  By not doing so, the Authority had failed to give weight to a matter it was required to regard as a fundamental element in making the determination.

45                  Mr Williams SC, who appeared with Mr Kennett and Ms Clegg for CTS, recognised that this argument, to the extent it invoked s 84(2)(d) of the Broadcasting Act rested on the words ‘proposed service’.  He contended that those words meant a service that would commence on the date the licence commenced and thus covered the whole period of the licence.

46                  CTS contended in its written submissions that the Authority gave weight to TVS’s superior capacity to encourage members of the community to participate in the operation of and programming of its proposed service.  This was said to be outside the scope of s 84(2) and therefore an irrelevant consideration.  The point was not developed by Mr Williams in his oral submissions.

47                  CTS further submitted that the timing of the allocation decision was flawed.  The effect of the decision was to require CTS, which had been broadcasting for over a decade, to cease broadcasting on one day’s notice.  This was to occur notwithstanding that the new licensee did not intend to use the relevant spectrum for a period of twelve months, or possibly more.  According to Mr Williams, there was nothing in the Broadcasting Act preventing the Authority from allocating the CTV licence with effect from a future date and extending CTS’s right to broadcast (by continuing to make the spectrum available and renewing CTS’s apparatus licence) up to that date.  On the contrary, Mr Williams said that the Authority’s power to allocate a CTV licence from a future date was implicit in s 84 of the Broadcasting Act.

48                  By not considering this course, so it was argued, the Authority failed to take into account the effect of the decision on CTS, its program providers, staff and audience.  Moreover, the Authority failed to have regard to a fundamental objective of the Broadcasting Act, implicit in ss 3 and 23, namely that of ensuring that broadcasting services are available to audiences and that the spectrum does not lie unnecessarily idle.  Furthermore, the decision ignored the direction in s 5(1)(b) of the Broadcasting Act which requires the Authority to use its functions and powers in a manner which, in its opinion, will ‘produce regulatory arrangements that are stable and predictable’.  This provision required the Authority to consider whether the exercise of its powers would promote stability and predictability.  By making a decision that inevitably involved disrupting a service that continued for eleven years, it must be inferred that the Authority had paid no attention to this criterion.

49                  CTS also argued that the Authority had erroneously taken into account the possibility that CTS might criticise the allocation decision when deciding to deny CTS a continuation of its licence.  Mr Williams submitted that when the Agenda Paper (at par 15) alerted the Authority to the ‘risk of CTS remaining on-air for a significant period after it is informed that it has failed to obtain a permanent licence’, its authors had in mind the dangers of adverse criticism of the Authority.  This, so he contended, was an irrelevant consideration and vitiated the Authority’s decision.

the allocation decision

the section 84 argument

The Criteria to be Taken into Account

50                  Section 84(2) of the Broadcasting Act sets out the matters to which the Authority ‘is to have regard’ in deciding whether to allocate a CTV licence to an applicant.  The effect of s 84(2) is to require the Authority to take the specified matters into account and give each of them weight as a fundamental element in making the determination: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, at 329, per Mason J (with whom Gibbs J agreed); Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, at 623, per Gummow J.  If, therefore, the Authority failed to take any of the matters specified in s 84(2) into account and give them the appropriate weight, its decision would be affected by an error of law.  But CTS must demonstrate that regard has not been had to one or more of the matters ‘in any real sense’: Queensland Medical Laboratory v Blewett, at 623.

51                  As I have noted, CTS’s contention that the Authority had failed to take into account TVS’s capacity to provide an operating television service for up to twelve months, insofar as it invoked s 84(2)(d) of the Broadcasting Act, relies on a particular interpretation of the expression ‘the proposed service’.  Mr Williams’ contention was that ‘the proposed service’ in s 84(2)(d) refers to a service that will commence on the date the licence commences.

52                  In my opinion, it is clear that s 84(2)(d) does not use the expression ‘the proposed service’ in that sense.  The same expression is used in s 84(2)(a), which requires the Authority to have regard to ‘the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area and the proposed licence’.  Section 84(2)(a) distinguishes between ‘the proposed service’ and ‘the proposed licence’.  It does so in the context of a statutory procedure for the allocation of a CTV licence that requires the Authority to advertise publicly for applications for the licence (s 80).  This procedure is mandated because the radio spectrum is a finite resource and choices must be made between competing applicants: Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority (2003) 125 FCR 560, at 565 [32], per Wilcox J.  Section 84(2) then specifies the criteria that are to be taken into account in deciding whether to allocate a CTV licence to a particular applicant.  In this context, it is difficult to see how the expression ‘the proposed service’ can mean anything other than the service proposed by the particular applicant.  It is that proposed service which must be assessed against the existing or perceived future needs of the community.

53                  If this is the meaning of ‘the proposed service’ in s 84(2)(a), there is no reason why any different meaning should be given to the same expression in s 84(2)(d).  On the contrary, the natural meaning of the words is that they refer to the service that by the particular applicant proposes to provide.

54                  In my opinion, s 84(2)(d) of the Broadcasting Act does not require the Authority to have regard to any delay between the date the CTV licence is allocated and the date the proposed service is likely to commence.  The paragraph is directed to the capacity of the applicant to provide the service that it proposes to operate. If that service is intended to commence at some date in the future (subject to the requirement that the licensee will commence the provision of broadcasting services within one year of being allocated the licence or such longer period as the Authority permits: Sch 2, Pt 5, cl 9(h), the question to be considered is the capacity of the applicant to provide that service.  The provision is not directed to any delay that may be involved in starting the proposed service.

55                  Section 84(2)(a) of the Broadcasting Act, although it did not receive prominence in argument, seems to me to have a different operation.  It requires the proposed service to be measured against the existing and perceived future needs of the community within the licence area.  One of the characteristics of a proposed service is its expected date of commencement.  If the proposal submitted by an applicant contemplates that the service will not commence for some time (as is the case with CTV’s proposed service), s 84(2)(a) requires that fact to be taken into account by the Authority, at least if it has a bearing on whether the proposed service will meet the existing (or perceived future) needs of the relevant community.  This construction of s 84(2) of the Broadcasting Act also gives effect to the direction in s 5(1)(b) that the Authority use its powers and functions in a manner which, in its opinion, produces regulatory arrangements that are ‘stable and predictable’.

56                  In my opinion, the mandatory licence condition requiring the holder of a CTV licence to commence broadcasting services within one year of the licence being allocated or such further period as the Authority permits is consistent with this analysis.  It is true that this condition recognises that it may be necessary for a licensee to delay commencement of a broadcasting service, perhaps for a considerable period.  There are obvious reasons why a new licensee may not be able to provide the proposed service for some time.  But the mandatory condition simply marks out the limits of the delays that are permissible once a licence has been allocated.  It does not detract from the operation of s 84(2)(a) insofar as it requires the Authority, in considering whether to grant the licence, to assess the extent to which the proposed service meets existing needs of the relevant community.

57                  This does not mean that an applicant whose proposed service will not commence for some time cannot be awarded a CTV licence.  Nor does it mean that such an applicant cannot be awarded a licence when in competition with an existing community broadcaster operating under a trial arrangement.  In the present case, as I have noted, CTS already provided a service on UHF Channel 31 pursuant to its apparatus licence.  Part 6A of the Broadcasting Act contemplates that broadcasters can hold temporary community broadcasting licences.  Thus the legislation recognises that an applicant for a permanent licence may already be broadcasting under a temporary arrangement and that it may be necessary to assess such an applicant against one who has never previously provided a broadcasting service.

58                  In these circumstances, in my opinion, s 84(2)(a) of the Broadcasting Act requires the Authority to give weight to the fact (if it be the fact) that the new broadcaster does not intend to commence its service for some time.  It would seem to be inevitable that any delay will have some impact on meeting existing and perceived future community needs, at least if the temporary service does not continue until the new service commences operations.  Nonetheless, the Authority might legitimately form the view that any advantage in continuity enjoyed by a temporary licensee is outweighed, for example, by the superior capacity of the newcomer to reflect ‘the nature and diversity of the interests of [the] community’ or to meet the future needs of that community.  Alternatively, as Mr Williams suggested, the Authority might be able to take measures, such as granting the licence from a future date, which minimises any disruption to the continuity of services.

Did the Authority Take the Required Matters into Account?

59                  The question that arises, therefore, is whether the Authority, in deciding to allocate the CTV licence to TVS, took into account the extent to which TVS’s proposed service would meet the existing and perceived needs of the community.  In particular, did the Authority give weight to the fact that TVS’s proposed service was unlikely to commence until some considerable time after its licence was allocated and that there would be a gap between the expiry of CTS’s apparatus licence and the commencement of TVS’s service?  Did the Authority consider the impact of the gap on the existing and perceived future needs of the Sydney community?

60                  As I have already indicated, answering this question is made more difficult than it might be by the fact that the Authority has not prepared reasons for its decision.  It is therefore necessary to address the question by reference to the available documentation, in particular the Agenda Paper prepared for the Authority, the Authority’s press release of 18 March 2004 and the Authority’s letter to CTS of the same date.  In evaluating this material four points need to be borne in mind:

(i)         CTS bears the onus, on the balance of probabilities, of establishing that the Authority failed to have regard to the matter specified in s 84(2)(a) of the Broadcasting Act: see Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, at 453 [71], per Branson J.

(ii)        I do not think that the Authority should be criticised for not preparing a statement of reasons.  The proceedings were commenced the day after its decision and CTS has not made a request under s 13 of the ADJR Act for a statement of the Authority’s reasons.

(iii)              No inference adverse to the Authority or TVS should be drawn from the fact that no members of the Authority gave evidence as to their decision-making processes.  Since the Authority’s role ought not to be that of a protagonist in proceedings, it would be inappropriate to rely on Jones v Dunkel (1959) 101 CLR 298 to support an inference from the absence of such evidence that the Authority members had not taken into account the impact of the delay in commencing CTS’s service on meeting the existing and future needs of the community: Muin v Refugee Review Tribunal (2002) 190 ALR 601, at 610 [25], per Gleeson CJ; at 630 [118], per McHugh J; at 646 [197], per Kirby J; at 669-670 [300], per Callinan J.  This remains the position notwithstanding that, as I have explained, the Authority in substance acted as a contradictor in these proceedings.  I should add that Mr Williams did not submit that Jones v Dunkel should be applied in this case.

(iv)              Since the Authority adopted the recommendations made in the Agenda Paper, the analysis in that document, in the absence of other evidence, is of particular significance in determining the matters taken into account by the Authority when making the decision: W157/00A, at 446 [41], 449-450 [54], per Branson J.

61                  The Agenda Paper prepared for the Authority does not set out the terms of s 84(2) of the Broadcasting Act.  However, it is clear that the document was drafted with s 84(2) in mind.  The Agenda Paper explains why, in the opinion of the author, four of the six applicants for the CTV licence failed to satisfy the criteria in s 84(2).  The recommendation that the licence be allocated to TVS rather than CTS is put expressly on the basis that TVS’s service will better meet the needs of the general community in the Sydney area.  In particular, the Agenda Paper argues that TVS had demonstrated to a higher degree than CTS that it would

‘meet the existing and perceived needs of the community in the Sydney licence area which are not currently being met by existing broadcasting services.’

This language reflects the terms of s 84(2)(a).  The Agenda Paper’s recommendations are supported by reasons which identify in some detail the segments of the community at which TVS’s programs are to be directed and the nature of the programs it proposes to offer.  TVS’s proposal is contrasted favourably with that of CTS.

62                  The Agenda Paper specifically acknowledges that TVS is likely to require 12 months before it commences broadcasting.  It also acknowledges that a decision to give the CTV licence to TVS will remove from the air a service that has been in operation for over ten years.  The Agenda Paper points out that CTS could argue that there are ‘public interest grounds’ for allocating the licence to CTS and offers alternative strategies if the Authority is minded to allocate the licence to CTS. 

63                  In my opinion, the reference to ‘public interest grounds’ is intended to embrace and would be understood as embracing by the Authority as embracing the advantages of continuity in service that would flow from the award of the CTV licence to CTS.  I think it is fair to interpret this section of the Agenda Paper as recognising that there would be advantages, including continuity of service to the community, in allocating the licence to CTS, but that, on balance, TVS would meet the existing and future needs of the community served by the Sydney licence than CTS, even allowing for the inevitable lack of continuity attributed to the delay in commencing TVS’s operations.  The Agenda Paper also recognises that members of the Authority might take a different view and accordingly suggest ways in which CTS’s application could be strengthened should the Authority decide to allocate the licence to CTS.

64                  The Agenda Paper returns to the question of the delay in TVS commencing its service under the heading of ‘Timing/Priority’.  This section of the document demonstrates that the author was keenly aware that CTS’s apparatus licence was to expire on 19 March 2004, the day after the Authority’s meeting.  This, if nothing else, reinforces the point that the author of the document and, I infer, the members of the Authority, appreciated that the delay in TVS commencing broadcasting necessarily involved a disruption to the broadcasting services hitherto provided to the community on UHF Channel 31.

65                  The Authority’s press release of 18 March 2004 provides further evidence that the Authority fully appreciated that there would be a delay between the expiration of CTS’s licence and the commencement of TVS’s service and that the delay would affect the extent to which the needs and interests of the community could be met in the interim.  The Authority’s letter of 18 March 2004 to CTS repeats the point that TVS was considered to be better able than CTS to meet the criteria specified in s 84(2) of the Broadcasting Act, in particular by reason of its superior capacity to meet the existing and perceived future needs of the Sydney community.

66                  In the light of this material I am not satisfied that the Authority, in allocating the CTV licence to TVS, failed to pay appropriate regard to the effect of the delay in TVS commencing its operations on meeting the existing and perceived future needs of the community within the area of the proposed licence.  On the contrary, on the evidence, I am satisfied that the Authority did have regard to that matter, as required by s 84(2)(a) of the Broadcasting Act.  The Agenda Paper, in particular, demonstrates that the Authority took the delay into account but concluded, on balance, that TVS was better able to meet the existing and perceived future needs of the community.  Accordingly, CTS has not made out this ground of attack on the Authority’s decision.

an irrelevant consideration?

67                  CTS’s faintly pressed submission that the Authority had taken an irrelevant consideration into account overlooks the fact that it is a mandatory condition of a CTV licence that the licensee will encourage members of the community it services to participate in the operations of the licensee in providing the service and in the selection and provision of programs (s 86(a), Sch 2, Pt 5, cl 9(2)(c)).  There is no substance in the submission.

DID THE AUTHORITY TAKE INTO ACCOUNT POSSIBLE CRITICISM FROM CTS?

68                  It was common ground that if the Authority had taken into account the likelihood that CTS would criticise or encourage criticism of the allocation decision, the Authority would have had regard to an irrelevant consideration in making its decision.  As Mr Williams submitted, the Broadcasting Act does not contemplate that the allocation of licences, or the timing of allocation decisions, is to depend on the Authority’s assessment of the views particular applicants may espouse or articulate in relation to the Authority’s procedures or decisions.

69                  The question is therefore whether the Authority, as CTS claimed, denied CTS an extension of its licence or the grant of a new licence because or partly because of the Authority’s apprehension as to what CTS might say about the allocation decision.  Mr Williams relied heavily on the reference in par 15 of the Agenda Paper to a long licence extension for CTS creating ‘a risk of CTS remaining on for a significant period after it is informed that it has failed to obtain a permanent licence’.  Mr Williams submitted that this reference should be interpreted as reflecting the Authority’s concern that CTS might criticise the decision or encourage others to do so.

70                  Mr Williams supported this construction of par 15 by referring to a rather curious paragraph in an affidavit made by Mr Tanner, the General Manager of the Authority in the present proceedings.  Under the heading ‘Possible Consequences of suspension of grant of licence to [TVS]’, Mr Tanner said this:

‘I am concerned that should [CTS] retain the right to broadcast, it will have the opportunity to make broadcasts intended to, or having the effect of, causing viewers to contact the [Authority] seeking to complain about the decision not to allocate the permanent licence to [CTS].  The reasons for this concern include:

(a)       My experience while at the [Authority] with other licensees who have become aware that their license may not be renewed;

(b)       The conduct of [CTS] since the commencement of these proceedings …;

(c)        I am aware that on Friday, the [Authority] received a very large number of telephone calls from persons who sought to complain about the decision not to allocate the permanent licence to [CTS].’

The ‘conduct’ of CTS identified in sub-par (b) is apparently a reference to CTS encouraging viewers to approach the Authority to complain about the allocation decision.

71                  Mr Gageler pointed out that Mr Tanner had made his affidavit at short notice for the purposes of the interlocutory proceedings.  It was directed to the balance of convenience and did not state or imply that the considerations identified by Mr Tanner had influenced the Authority when making the allocation decision.  As curious as Mr Tanner’s affidavit is, I think that Mr Gageler’s observations have some force.  Moreover, there is no evidence that Mr Tanner contributed to or endorsed the contents of the Agenda Paper.  On the contrary, the document itself records that the contact officer was Ms Herro, and that the Agenda Paper had been cleared by Ms Ritter.  According to the handwritten record of the Authority’s meeting of 18 March 2004, the only staff member present was Ms Koller.  In my opinion, Mr Tanner’s concerns expressed after the event do not provide a sound basis for interpreting the Agenda Paper or attributing a particular understanding of it to members of the Authority.

72                  On balance, I do not think that the Agenda Paper should be interpreted as expressing or implying the view that the Authority should take into account, when granting the licence or deciding when the licence should take effect, the possibility that CTS would use its temporary licence to criticise the Authority.  The ‘risk’ identified in par 15 of the Agenda Paper is that of CTS remaining on-air for a significant period after it is informed that it has failed to obtain the CTV licence.  The Agenda Paper does not state expressly why the ‘risk’ should be a matter of concern.  In particular, it does not explicitly state that CTS will use UHF Channel 31 to criticise the Authority’s decision.

73                  It is true that the Agenda paper refers to the fact that strong criticism can be expected from CTS and its supporters and sponsors if the licence is awarded to TVS.  This point, however, is made under the heading ‘Sensitivities’.  It is hardly surprising that a paper making a recommendation should identify possible sources of criticism of the recommended decisions.  The Agenda Paper points to measures that can be taken, such as encouraging TVS to grant access to CTS program providers, to moderate expected criticism of the decision from a variety of quarters.

74                  Nonetheless, I think it fair to say that one possible inference from reading the Agenda Paper in isolation is that the ‘risk’ of CTS continuing to broadcast includes that of on-air criticism of the decision by CTS.  But it is not the only interpretation of the Agenda Paper and I do not think that it is the one most likely to have been adopted by the members of the Authority having regard to the context.

75                  The evidence shows (and I infer that Authority members would be aware) that if CTS continued to broadcast on UHF Channel 31 pending the commencement of services by TVS, the latter’s progress in working with community organisations to develop program product for broadcasting by TVS might well be impeded.  The evidence also indicates that if CTS continued to broadcast in the interim, TVS’s ability to secure sponsorship for the new service might be adversely affected.  Moreover, an attachment to the Agenda Paper records that TVS had not yet approached potential sponsors, but that its business plan set out detailed sponsorship and marketing strategies.  Clearly enough, as members of the Authority would appreciate, those strategies might be affected if TVS had to compete for an extended period with CTS while the latter was still on air.

76                  In my opinion, having regard to the context, I think the more likely reading of par 15 of the Agenda Paper is that it is intended to refer to the difficulties that could arise for the new service if the temporary licensee continued operations pending the introduction of the service proposed by TVS, rather than to possible on-air criticisms of the Authority.  I think it likely that the reference was understood this way by the members of the Authority. 

77                  Accordingly, I am not persuaded that the Authority, in making its decision, took into account the possibility that CTS would use UHF Channel 31 to make on-air criticisms of the Authority or of the decision to award the licence to CTS.  This ground of challenge to the Authority’s decision therefore fails.

the timing question

78                  CTS’s submission on the ‘timing’ of the allocation decision took as its starting point that there is nothing in the Broadcasting Act to prevent the Authority from making a decision to allocate a CTV licence from some future date.  Mr Robertson, on behalf of TVS, contended that although the Authority can decide to allocate a licence as from a few days after the decision, it cannot allocate a licence as from a date, say, six months in the future.  This followed, so he argued, from the requirement that the Authority, when exercising a discretionary power, act on up-to-date information: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 44-45, per Mason J.

79                  Whether the Authority can allocate a licence as from a future date must be determined by the terms of the Broadcasting Act.  The language of s 84 is consistent with the Authority having the power to allocate a licence as from a future date.  There may be circumstances, for example, where such a decision is thought to achieve the objects of the Broadcasting Act, with which the Authority is directed to act consistently: ss 3, 160; cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 391-392.  Once it is accepted that the Authority has power to allocate a licence from a date a short time in the future, it is not easy to see how, as a matter of power, the line can be drawn.  The circumstances in Peko-Wallsend, which involved a substantial delay between the Aboriginal Land Commissioner’s recommendation and the Minister’s decision, were different from those of the present case.  Thus, although it is not necessary to resolve the issue, I am inclined to think that CTS’s starting point was correct.

80                  CTS argued that the Authority, in deciding not to allocate TVS’s licence from a future date and not to extend CTS’s apparatus licence, had failed to take into account a ‘fundamental object’ of the Broadcasting Act.  Mr Williams located the primary source of that object as s 23, which requires the Authority, in performing functions under Part 3 of the Broadcasting Act, to promote the economic and efficient use of the radiofrequency spectrum.  He cited also the Explanatory Memorandum to the Broadcasting Bill 1992, which stated that what became s 34(1) is intended to allow the Authority ‘to make efficient use of the broadcasting services bands, and will ensure that parts of those bands do not lie idle’.

81                  The Authority’s decision to allocate the licence to TVS was made under s 84 of the Broadcasting Act, which is in Part 6.  Section 23 is limited to performance of the Authority’s functions under Part 3, including the power in s 34 to make unused parts of the radiofrequency spectrum available for the temporary transmission of programs or for temporary CTV licences.  The Explanatory Memorandum is directed to the same power.  Section 23 cannot be read as requiring the Authority, when exercising the power under s 84, to give effect to a ‘fundamental object’ of avoiding of gap between the expiry of a temporary licence and the commencement of the operations of a new licensee utilising the same spectrum.

82                  It is also important to bear in mind the decision that is under challenge in these proceedings.  It is the Authority’s decision to allocate a licence to TVS.  There is no evidence that CTS asked the Authority to extend its apparatus licence or to grant it a temporary CTV licence prior to its letter of 19 March 2004.  As I have noted, CTS has not challenged the Authority’s refusal in response to this letter to extend its licence or grant a fresh licence.

83                  In essence, CTS’s complaint is that the Authority did not act of its own motion to allocate the licence to TVS from a date some months in the future and take the steps required to extend CTS’s apparatus licence or to issue a temporary CTV licence to cover the period in the interim.  It is not entirely clear that the Authority had power to take this course, since it would have been necessary for it to make a fresh determination under s 34(1) of the Broadcasting Act and there may be an issue as to whether any of the preconditions for the exercise of that power had been satisfied.  On the assumption that the Authority had a discretionary power to take the various steps suggested by CTS, the Broadcasting Act did not require it to exercise or consider exercising the power by reference to a ‘fundamental object’ of ensuring that broadcasting services are available to audiences on a continuous basis.

84                  As I have already held, the Authority was bound by s 84(2)(a), in making the allocation decision, to have regard to any interruption to services as a factor in determining the extent to which the proposed service would meet existing or perceive future community needs.  As I have explained, the Authority did so.  It could also have taken measures to overcome any interruption to services occasioned by the allocation decision, but it was not obliged to do so. 

85                  I do not think that s 5(1)(b)(i) of the Broadcasting Act leads to any different conclusion.  It requires the Authority to use its powers in a manner which, in its opinion, will produce regulating arrangements that are stable and predictable.  Assessing whether particular outcomes enhance the stability and predictability of regulatory arrangements is quintessentially a matter of judgment.  I am not prepared to infer that the Authority did not advert to that question in making the decision it did.  The Authority, as I have found, addressed the delay that was inherent in TVS’s proposal and concluded that its proposal was nonetheless preferable to that of CTS.  The Agenda Paper also adverted to the possibility that CTS could remain on the air after having been advised that it had failed to obtain a permanent licence, but concluded that this was not appropriate.  I infer that the Authority also adverted to that possibility.

86                  Not all decision-makers would have taken the same approach as the Authority.  As Mr Gageler acknowledged, there may have been strong arguments for the Authority making provision for CTS to continue to broadcast until TVS is ready to commence its service.  But it was for the Authority to assess those arguments.  One factor it would have taken into account (as I infer) was that CTS’s temporary licence was due to expire on 19 March 2004.  The Authority was entitled to form the view that the stability and regularity of regulatory arrangements would be served by allowing the licence to expire on the scheduled date in circumstances where CTS had been warned, in effect, that this course might be adopted.

87                  Mr Williams did not elaborate in oral argument on the submission that the Authority’s refusal to extend CTS’s licence or grant it a fresh licence for the period pending TVS commencing its service was unreasonable in the relevant sense.  It follows from what I have said that although there was perhaps a good deal to be said for such steps being taken, the Authority’s refusal to take them could not be characterised as so unreasonable that no reasonable person could have so exercised the relevant powers: ADJR Act, s 5(2)(g).

conclusion

88                  CTS’s challenge to the Authority’s decision must be dismissed.  My present view is that the only order for costs that should be made is that CTS pay TVS’s costs.  I do not at present consider that any order for costs should be made in favour of the Authority having regard to the role it played in the proceedings.  If any party wishes to argue for a different costs order, it may do so by filing written submissions within seven days.  In the absence of any such submissions, the costs order will be as I have proposed.

Associate:

Dated:              16 April 2004