FEDERAL COURT OF AUSTRALIA

Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority [2012] FCA 1205

THE COURT ORDERS THAT:

1.    The applicants have leave to amend their amended application for an order of review in the terms of pages 3–7 and in the terms of the proposed amendments to paragraphs [6] and [7] on page 8 of their draft further amended application. Leave to amend is not otherwise granted.

2.    The application is dismissed.

3.    On or before 4:30 pm on 9 November 2012, the parties file any submissions on costs that they wish to make, having regard to the reasons for judgment delivered today.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    On 20 October 2011, the applicants filed an application for judicial review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). An amended application was filed, with leave, on 26 March 2012. The applicants challenged the decision made by the Australian Communications and Media Authority (“the ACMA”) on 25 August 2011 (“the challenged decision”) with respect to a request (“Sunshine’s request”) by Sunshine Coast Broadcasters Pty Ltd (“Sunshine”) on 25 May 2011 to vary the licence area plan for the Nambour RA1 licence area for radio broadcasting (“the Nambour LAP”).

2    At different times, the applicants described the challenged decision in different terms. The ACMA also had different descriptions for what it did. In the end, nothing turns on these various descriptions. Generally speaking, unless the context indicates the contrary, these reasons treat the challenged decision as the ACMA’s decision not to propose a draft variation of the Nambour LAP for consultation purposes.

3    Before the hearing, the ACMA filed a notice of objection to competency that maintained that it was not open to the applicants to invoke the ADJR Act because the challenged decision was not a decision of an administrative character and therefore not a decision to which the ADJR Act applied. For the reasons stated below, it is unnecessary to rule on this objection to competency.

4    For the reasons stated below, I would dismiss the application because the applicants have failed to establish any ground for judicial review.

5    The applicants relied on the affidavits of their solicitor, Howard Roger Rapke, sworn on 9 December 2011 and 7 February 2012. The ACMA relied on the affidavit of Sophie Kowald affirmed on 9 December 2011. Ms Kowald had the position of Business Manager, Digital Transition Division at the ACMA. There was no cross-examination.

FACTUAL BACKGROUND

6    Sunshine, which is controlled by Southern Cross Media Group Ltd (“Southern Cross Media”), holds two commercial radio broadcasting licences in the Nambour RA1 licence area established by the Nambour LAP prepared under s 26 of the Broadcasting Services Act 1992  (Cth) (“the BS Act”). The Nambour RA1 licence area, which broadly covers the Sunshine Coast region, lies immediately to the north of, and overlaps with, the Brisbane RA1 licence area.

7    On 17 May 2011, Southern Cross Media finalised a corporate takeover. As part of this takeover, it had become, on 15 March 2011, a controller of two commercial radio broadcasting licences in the Brisbane RA1 licence area. Broadly speaking, under s 51 of the BS Act, the Brisbane RA1 licence area and the Nambour RA1 licence area are treated as one licence area for the purposes of Part 5 of the BS Act. This follows from a determination made by the ACMA on 16 June 2009 under s 30(5)(b) of the BS Act that in excess of 30% of the population of the Nambour RA1 licence area was attributable to the area overlapping with the Brisbane RA1 licence area. The result is that Southern Cross Media is in a position to control four commercial radio broadcasting licences in the same licence area. Section 54 of the BS Act provides that a person must not be in a position to exercise control of more than two commercial radio broadcasting licences in the same licence area.

8    Section 67 of the BS Act permits a person to apply to the ACMA for an approval of a breach before a transaction that would place a person in breach of a provision such as s 54. On 25 March 2011, the ACMA approved a temporary breach of s 54 by Southern Cross Media for twelve months and issued a notice under ss 67(4)–(6) that required Southern Cross Media to divest itself of two licences by March 2012. On 23 February 2012, the ACMA determined to grant an extension of time for compliance under s 68. The current divestiture deadline appears to be 24 March 2013.

Sunshine’s request

9    On 25 May 2011, Sunshine requested that the ACMA vary the Nambour LAP to remove or reduce the overlap between the Nambour RA1 and Brisbane RA1 licence areas. If this were done, then these areas would cease to be deemed to be one area for the purposes of the prohibition in s 54. In their letter of 25 May 2011, Sunshine’s lawyers stated:

We are enclosing an application by our client in accordance with section 26 of the Broadcasting Services Act 1992 (Cth) to vary the licence plan for Nambour RA1.

Our client submits that the licence area should be decreased to remove the southern part of the licence area south of Beerburrum (including Bribie Island but retaining the Caboolture Hinterland) because, in the first place, the coverage within that part of the licence area, from FM transmitters located [at] Bald Knob, does not meet the minimum field strength for commercial FM radio services as specified in the ACMA Broadcasting Planning Manual and, in the second place, because there is little, if any, demographic connection between the residents of the southern part of the Nambour licence area and the remainder of the Nambour licence area.

The request was accompanied by an expert’s report on radio coverage issues and a report on socio-economic and planning considerations prepared by SGS Economics and Planning (“SGS”).

10    The expert’s report on radio coverage stated that:

The coverage within the southern part of the Nambour Licence Area (RA1), from FM transmitters located at Bald Knob, does not meet the minimum field strength for commercial FM radio services, as specified in the Australian Media and Communications Authority’s broadcasting Planning Manual.

This has been the situation since the original broadcasts on the FM band in the early 1990’s, despite many attempts by the licensee to rectify the situation. The major technical issue is that the presence of large communities on the licence area boundary for both the Nambour and the Brisbane licence areas results in overspill from one licence area into the adjacent licence area, creating a breach of the Broadcasting Services Act [Schedule 2, Part 4, clause 8(3)].

…

In this case, it is suggested the Nambour commercial radio licence area be amended to remove some Collection Districts in the southern extremity of the licence area, currently shared with the Brisbane licence area, which cause the licence area overlap to exceed 30% within the Nambour licence area. These communities include Caboolture, Morayfield and Burpengary.

11    In its report, SGS argued:

[F]rom a consideration of socio-demographic and urban settlement factors most of the urbanised areas within the overlap area have a greater affinity with the northern parts of Brisbane and therefore should be part of the Brisbane Radio LAP (Brisbane RA1), but are not well served being part of the Nambour Radio LAP (Nambour RA1).

The decision

12    The ACMA did not undertake any public consultation with respect to Sunshine’s request to vary the Nambour LAP. Instead, having received Sunshine’s request, the ACMA prepared a document entitled “Request for LAP Variation — Nambour RA1” (“the ACMA paper”).

13    The ACMA paper was accompanied by eight attachments: (1) Sunshine’s application to vary the Nambour LAP (with attachments); (2) a legal framework for consideration of a LAP variation; (3) an analysis of coverage in the Brisbane–Nambour commercial radio overlap area; (4) a response to Sunshine’s demographic argument; (5) a planning history of the Nambour RA1 licence area; (6) a list of commercial radio licence areas overlapping by more than 25 per cent; (7) a decision matrix; and (8) an ACCC notice on the proposed acquisition of Austereo Group Ltd by Southern Cross National Network Pty Ltd.

14    The ACMA paper engaged in a relatively detailed discussion, and concluded:

●    It is recommended that the LAP for Nambour RA1 not be varied because the proposed variation would not promote the objects of the Act.

●    As the proposed variation does not meet the criteria in the Act for the planning of the broadcasting services bands, only one option is recommended. Three options were considered by SPG [the Strategy and Policy Group] on 26 July 2011: (1) decide against the request and not issue a draft LAP variation; (2) make a preliminary decision in favour of the request to vary the boundary and consult publicly on a draft licence area plan variation on the terms proposed; or (3) decide against the request and instead propose a draft licence area plan variation changing the boundary and accompanying technical specifications to reduce overspill into Brisbane. These options are summarised in the decision matrix in Attachment G.

15    The ACMA considered the ACMA paper at its meeting of 25 August 2011 and “agreed for the reasons set out in the paper that there was no sufficient case to propose a variation to the Nambour LAP changing the boundary of Nambour RA1”.

Developments after the decision

16    On 26 August 2011, a representative of the ACMA sent an email to Sunshine, stating that he “confirm[ed] [his] advice over the telephone yesterday that the Authority [had] decided not to issue a draft licence area plan for the Nambour RA1 licence area”. The email further stated:

Having regard to the request to vary the Nambour RA1 LAP by changing the boundary of the licence area, the Authority decided that the objects of the Broadcasting Services Act 1992 (BSA) were best promoted by not proposing to vary the Nambour RA1 licence area plan.

The Authority’s decision was based on an assessment of your clients’ specific arguments and the merits of the proposed variation against the broadcast planning requirements of the BSA. On balance, the Authority found that the submissions on the quality of coverage of the Nambour services, the extent of community-of-interest ties between the overlap area and the remainder of Nambour RA1, and competition and programming issues, as well as the effects of changing the boundary, were not such that they justified varying the licence area plan.

17    Sunshine requested the ACMA’s reasons for the challenged decision. On 23 September 2011, without acknowledging that Sunshine had any entitlement to them, the ACMA provided Sunshine with reasons (“23 September 2011 reasons”).

18    On 18 October 2011, Sunshine sought further details from the ACMA in relation to its reasons for its decision and, on 20 October 2011, the ACMA provided some internet hyperlinks in response to this request.

APPLICATION FOR JUDICIAL REVIEW

19    The applicants’ main complaint was that the challenged decision was not authorised by the BS Act because it had not been preceded by “wide public consultation”. The applicants sought to have the challenged decision set aside or quashed and to have Sunshine’s request referred to the ACMA subject to directions requiring the ACMA to carry out wide public consultation and otherwise reconsider the request according to law.

20    The applicants’ originating application, as amended, stated their main point in various ways. It claimed that in making the challenged decision, the ACMA:

    failed to observe procedures that were required by law to be observed, by failing to carry out wide public consultation (ground 1);

    erred in law, through its misapprehension that it was not required in the circumstances to carry out wide public consultation (ground 2(a));

    failed to take into account a relevant consideration, being the views of the public with respect to the proposed variation of the Nambour LAP that would have been received during wide public consultation (ground 4);

    took into account an irrelevant consideration, being speculation as to the views of the public that would have been received had there been wide public consultation (grounds 5(a), (b), and (d)(i)).

21    The applicants also contested the adequacy of the ACMA’s assessment of Sunshine’s request in other ways, asserting that the ACMA:

    applied policy without regard to the merits of the case (ground 3);

    took into account irrelevant considerations relating to overspill (grounds 5(c), (d)(ii) and (d)(iii)); and

    had no evidence to justify its conclusion as to the significance of the community ties between the two areas (ground 6).

22    The applicants also asserted that the challenged decision was an improper exercise of power in that it was so unreasonable that no reasonable person could so have exercised the power (ground 7). The particulars for this ground repeated paragraphs (a)–(c) of the particulars for ground 6 and also asserted that “no reasonable decision-maker … could have concluded that any community ties between the Caboolture Overlap Area and the remainder of Nambour RA1 that were demonstrated by the material before the ACMA were so substantial as to justify dismissing [Sunshine’s request] without undertaking public consultation”.

23    At the hearing, the applicants abandoned a number of grounds, or parts of grounds. These grounds were grounds 2(b)–(d), 3(b) and 7(b). For this reason, these grounds are not further considered. In post-hearing submissions, filed with leave, the applicants abandoned two further grounds. These were the “irrelevant considerations” ground relating to the possible need to vary technical specifications to avoid overspill (ground 5(c)–(d)) and the “no evidence” ground (ground 6).

24    In post-hearing submissions, the applicants also sought further to amend their application. The proposed further amended application not only showed the abandonment of the grounds of review as mentioned above, but also sought to include two new grounds. I would grant leave to make the amendments insofar as they would remove the grounds that were abandoned at the hearing, since this would regularise the applicants’ originating application. I would also grant leave to make the amendments insofar as they would remove the grounds that the applicants abandoned after the hearing. For the reasons stated below, I would not grant leave to add the proposed new grounds.

THE PARTIES’ SUBMISSIONS BEFORE AND AT THE HEARING

The applicants’ submissions

25    The applicants’ submissions altered over time. The applicants’ submissions are set out in some detail below in order that the reader may gain some appreciation of how their case unfolded.

26    The applicants’ principal submission was that s 27(1) of the BS Act required the ACMA to undertake wide public consultation in response to Sunshine’s request, prior to making any decision about whether the Nambour LAP should be varied or not. Since no public consultation was carried out, the applicants submitted that procedures required to be observed in connection with the making of the decision were not observed, and that this established the review ground in s 5(1)(b) of the ADJR Act and jurisdictional error.

27    The applicants argued that the s 27(1) consultation requirement applied to the challenged decision because it applied to the performance of the ACMA’s functions under ss 24–26 of the BS Act. They submitted that the power to make a decision not to vary a licence area plan (including a decision not to issue a draft variation) arose only as an incident of the s 26(2) power to vary a licence area plan and that therefore the ACMA was relevantly performing a function under s 26 of the BS Act. Relying on WorldAudio Ltd v Australian Communications and Media Authority (2006) 149 FCR 462 (“WorldAudio”), they submitted that, since s 27(1) applied to a decision to vary a licence area plan, it must also apply to a refusal to vary a licence area plan and a refusal to enter on the procedure to vary a licence area plan.

28    The applicants maintained that the failure to conduct wide public consultation gave rise to further bases of invalidity of the challenged decision. They contended that the ACMA misdirected itself as to a matter of law in considering that it was not required to consult on a decision not to vary a licence area plan. They submitted that this established the ground of review in s 5(1)(f) of the ADJR Act and also brought the challenged decision into jurisdictional error.

29    Next, the applicants submitted that, in failing to take the results of wide public consultation into account, the ACMA failed to take into account a relevant consideration. They maintained that it was “inescapable” that the ACMA was obliged “to give genuine consideration to the views of the public” in making a decision under s 26 of the BS Act. The applicants added that wide public consultation would have assisted the ACMA “to gain a proper appreciation” of the demographic and social characteristics of the parts of the Nambour RA1 licence area that Sunshine sought to have excised. The applicants submitted that this failure brought the challenged decision into jurisdictional error and established the grounds of review in ss 5(1)(e) and 5(2)(b) of the ADJR Act.

30    Further, the applicants submitted that the ACMA took into account irrelevant considerations, being whether the partial excision of the overlap area that Sunshine sought “might hypothetically be a source of detriment to residents in the overlap area” and “the hypothetical responses of competing commercial radio broadcasters if the draft were submitted to wide public consultation”, instead of views based on the allegedly requisite consultation process. It was said that this established review grounds ss 5(1)(e) and 5(2)(a) of the ADJR Act, and jurisdictional error.

31    The applicants sought to summarise this part of their argument in the following way:

[I]t was not lawfully open to the ACMA to erect a hurdle in the decision-making process anterior to submitting the proposed variation to wide public consultation. At the very least, absent a formalised decision-making structure that “made provision for” wide public consultation in a meaningful and procedurally regular way, the interposing of a decision whether to proceed with wide public consultation is, in reality, no more than an ad hoc device that enables the ACMA to circumvent its obligation to carry out wide public consultation.

(Original emphasis.)

32    The applicants also presented an argument about the adequacy of the ACMA’s assessment of Sunshine’s request. The applicants argued that the ACMA’s policy of not varying licence areas without good reason had been applied without regard to the merits of the community ties grounds set out in Sunshine’s request. Further, the applicants argued that there was no evidence or other material before the ACMA to permit the ACMA to conclude that there were sufficiently significant community ties between the overlap area and the rest of the Nambour RA1 licence area to justify retaining the overlap area within that licence area. This was said to establish the review grounds in ss 5(1)(e) and 5(2)(f) and under s 5(1)(h) of the ADJR Act, as well as jurisdictional error. As noted above, the applicants abandoned the “no evidence” ground after the hearing.

33    The applicants also argued that the ACMA took into account another irrelevant consideration going to ss 5(1)(e) and 5(2)(a) of the ADJR Act and jurisdictional error, being potential negative consequences of any reduction in transmitter strength needed to prevent overspill between the licence areas if they were varied. As already noted, the applicants abandoned this ground after the hearing.

34    Finally, the applicants submitted that the challenged decision was of an administrative character for the purposes of the ADJR Act because it was not a mere refusal to vary the Nambour LAP but incorporated a procedural decision not to carry out wide public consultation under s 27(1) of the BS Act. Accordingly, the applicants submitted that the ACMA’s objection to competency should be dismissed.

The ACMA’s submissions

35    There were also changes in the ACMA’s submissions over the course of the proceeding, although these were less dramatic than those made by the applicants.

36    As already noted, before the hearing, the ACMA contended that the applicants’ judicial review application was incompetent insofar as it relied on jurisdiction under the ADJR Act (see [3] above). The ACMA submitted that the ADJR Act did not apply to the challenged decision because the decision was of a legislative rather than an administrative character. The ACMA argued that a decision not to vary an existing licence area plan would have the same legislative character as a decision to make such a variation because it determined the rules that would apply, in this case retaining an existing set of rules.

37    Further, the ACMA argued that, even if a review ground was established, the application for relief under s 39B was deficient because:

(a)    the obligation to consult, assuming it applied in the present case, is too vague and uncertain to constitute an obligation capable of enforcement by an order for mandamus; further, none of the errors alleged amount to jurisdictional error;

(b)    certiorari does not issue in respect of decisions of a legislative character and cannot issue to nullify decisions without any legal effect; and

(c)    there is no right of the applicants to support a declaration in respect of the Decision.

The ACMA also argued that there was no enforceable obligation to consider a request to vary a licence area plan and therefore there was no basis for the order sought “requiring the ACMA to reconsider the Application according to the law”.

38    As to the merits, the ACMA argued that none of the asserted grounds was made out because:

(a)    the ACMA was not obliged “to carry out, or otherwise make provision for, wide public consultation” in the circumstances of this case; and

(b)    the remaining grounds do not allege any reviewable error but, in substance, seek review of the merits of the Decision.

39    The ACMA contended that its obligation to make provision for wide public consultation in the performance of its functions under ss 24–26 of the BS Act fell “far short” of an obligation to carry out wide public consultation whenever a person suggested that the ACMA vary a LAP under s 26(2). Before the hearing, the ACMA argued that any response by the ACMA to a request to vary a LAP was preliminary and incidental to its functions under s 26. The ACMA maintained that the objective of s 27 was satisfied when all LAPs and their variations were “the outcome of a process involving wide public consultation, informed by the advice and assumptions made public under s 27(2)”. Accordingly, so the ACMA said, it was unnecessary to the purpose of s 27(1) that any suggested variation be put to the public. Further, the ACMA submitted that a requirement that all suggested variations be put to the public would be inefficient and contrary to the purposes of the BS Act; and that if some but not all suggested variations required consultation, there was no statutory basis for determining which did and which did not.

40    The ACMA submitted that the applicants’ other argument concerning the adequacy of the consideration given to Sunshine’s request did not allege reviewable error but instead sought review of the merits of the challenged decision. The ACMA also submitted that its policy of not varying licence areas without good reason required it to consider the merits of the case and that it was plain enough on the material before the Court that it had indeed had regard to the merits of Sunshine’s request. As to the allegation that the ACMA took into account considerations relating to the potential overspill from Nambour RA1 into Brisbane RA1, the ACMA contended that there was no statutory basis for the claim that this was an irrelevant consideration. It ultimately proved unnecessary to consider this last-mentioned submission since the applicants abandoned the ground to which it related.

41    At the hearing, the ACMA elaborated on its pre-hearing submissions that, when it considered the applicants’ request with respect to varying the Nambour LAP, it did something that was preliminary and incidental to its function under s 26 of the BS Act. The ACMA argued that its consideration of the applicants’ request should be seen as a function, within s 10(1)(s) of the Australian Communications and Media Authority Act 2005 (Cth) (“the ACMA Act”), that was incidental or conducive to one or more of the other functions listed in s 10(1) (which covered its function under s 26 of the BS Act). The ACMA added that s 12 of the ACMA Act made it plain that the ACMA had the power necessary to perform that function. Thus, so the ACMA’s argument ran: (1) the challenged decision was not made under s 26 of the BS Act but under the ACMA Act; (2) therefore in making the challenged decision the ACMA did not perform a function under s 26, as s 27 of the BS Act contemplated; and (3) therefore no wide public consultation obligation arose under s 27 of the BS Act with respect to the challenged decision.

42    At the hearing, the ACMA did not press its objection to competency insofar as the challenged decision was made under the ACMA Act as discussed above, acknowledging that in this event the challenged decision was a decision to which the ADJR Act applied within the meaning of ss 3 and 5 of the ADJR Act, being a decision of an administrative character made under an enactment. The ACMA did not contend that it was not a “sufficiently operative” decision to permit the application under the ADJR Act: compare Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337–338, 365, 369. It followed from this that the decision was one to which s 13 of the ADJR Act applied and that the ACMA was bound to give reasons for its decision in accordance with that provision. Further, the Court had available to it the powers conferred by s 16 of the ADJR Act with respect to relief. As senior counsel for the ACMA observed at the hearing, if this analysis were accepted, it was unnecessary to consider further the ACMA’s pre-hearing submissions as to the availability of other sources of relief.

THE PARTIES’ POST-HEARING SUBMISSIONS

43    In post-hearing submissions filed on 20 April 2012, the applicants argued, first, that the ACMA was impliedly obliged under s 26(2) of the BS Act “to consider a bona fide and substantial application made by a licensee to vary the LAP under which it is licensed”. The applicants maintained that such an obligation was not incompatible with the decision being of a legislative character. Secondly, the applicants argued that, when it received and considered Sunshine’s request to vary the Nambour LAP, the ACMA was performing a “function under s 26” that engaged the consultation obligation in s 27(1) of the BS Act. Alternatively, if the ACMA was doing something preliminary or incidental to its s 26 function, and not performing a function under s 26 when it made the challenged decision, the applicants sought to argue that “the ACMA took irrelevant considerations into account, and/or … the Decision involved an error of law or was otherwise contrary to law” because:

a.    the ACMA incorrectly considered that it was performing a function under ss 24, 25 and 26 of the [BS] Act in making the Decision and, as a consequence, erroneously applied the Licence Area Policy as an operative constraint on the making of the Decision; and

b.    the ACMA erroneously undertook a detailed analysis of the substance of the proposed variation and reached concluded views as to the merits of the proposed amendment, in a manner inconsistent with the incidental or preliminary nature of its function and which subverted the statutory scheme of Part 3 of the Act.

These arguments were set out in the proposed new grounds in the applicants’ proposed further amended application.

44    Under (a) above, the applicants submitted that the ACMA took the Licence Area Policy into account as if it were an operative constraint in making the challenged decision, when it should not have done because “[it] was ex hypothesi performing a function that was only incidental or preliminary to the performance of its functions under ss 24, 25 and 26 of the [BS] Act”. Under (b) above, the applicants submitted that “in making its incidental or preliminary assessment, it was not open to the ACMA to carry out a detailed and in-depth assessment of the proposed variation’s suitability for ultimate approval”. The applicants concluded that, if the challenged decision were made in performance of the ACMA’s incidental or preliminary functions, “it exceeded the proper bounds of those incidental function[s]”.

45    In response to these post-hearing submissions, the ACMA opposed the addition of the new grounds by way of amendment and said in summary:

There is no doubt that, in the present matter, the ACMA did give consideration to the Variation Request, and it may be assumed for the sake of the present argument that it had an obligation to do so and not to ‘throw it unread into the waste paper basket”. …

Further, the [ACMA] does not dispute that the ACMA’s exercise of discretion in so doing was susceptible to review in accordance with established principles applying to “uncontrolled discretions”.

However, the [ACMA] disputes that the ACMA was not only obliged to consider the Variation Request but was obliged, unless the request was “insubstantial, trivial, repetitious, frivolous or vexatious”, to take the request further and, among other steps, carry out wide public consultation.

When it considered and determined the Variation Request, the ACMA was not performing a function under s 26 [but] was performing a function preliminary and incidental to its s 26 functions. The explicit source of that function is s 10(1)(s) of the [ACMA Act]; and the ACMA’s power to engage in that function is expressly conferred by s 12 of the ACMA Act.

There is nothing in the subject-matter, scope or purpose of the BS Act or the ACMA Act that would support limiting the factors to which the ACMA may legitimately have regard in considering a request such as the Variation Request, in the manner contended by the Applicants.

46    The applicants responded to the ACMA’s submissions in a post-hearing reply dated 16 May 2012.

RELEVANT LEGISLATION

47    For present purposes, as the foregoing discussion indicates, there are two relevant enactments — the BS Act and the ACMA Act.

The ACMA Act

48    The ACMA is established by s 6 of the ACMA Act. The ACMA is a body corporate, which may sue and be sued in its corporate name, and consists of a Chair, a Deputy Chair and between one and seven other members: ss 18–19.

49    The ACMA has the functions described in Div 2 of Part 2 of the ACMA Act: s 7. Section 10 provides for the ACMA’s broadcasting, content and datacasting functions; and s 11, for certain additional functions. Pursuant to s 10(1), the ACMA’s functions include:

(a)    to regulate broadcasting services … in accordance with the Broadcasting Services Act 1992;

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

(c)    to allocate, renew, suspend and cancel licences and to take other enforcement action under the Broadcasting Services Act 1992;

…

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

…

(ii)    the Broadcasting Services Act 1992; …

…

…

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

Section 12 relevantly provides that “[t]he ACMA has power to do all things necessary or convenient to be done for or in connection with the performance of its functions”.

The BS Act

50    The objects of the BS Act, as set out in s 3(1), include:

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

…

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

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

(ea)    to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and

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

…

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

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

The Parliament’s intention with respect to regulatory policy under the BS Act is set out in s 4.

51    Section 5 relevantly describes the role of the ACMA under the BS Act as follows:

(1)    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 ACMA with responsibility for monitoring the broadcasting industry, the datacasting industry, the internet industry and the commercial content service industry; and

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

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

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

(2)    Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.

52    The BS Act regulates commercial broadcasting services through a licence system: see s 12(1). Part 4 of the BS Act provides for the allocation of licences, including commercial radio broadcasting licences: see ss 35B–49. Each commercial radio broadcasting licence is subject to the conditions set out in Part 4 of Sch 2 to the BS Act and such other conditions as are imposed by the ACMA: see s 42(2). The conditions in Part 4 of Sch 2 make it a standard condition of each such licence that the licensee will not provide commercial radio broadcasting services outside the licence area of the licence, except as permitted under cl 8(3) of Part 4 of Sch 2.

53    Part 3 of the BS Act concerns the planning of the broadcasting services bands. Broadly speaking, the broadcasting services bands are the parts of the radiofrequency spectrum used for broadcasting and datacasting: see the definition of “broadcasting services bands” in s 6(1) of the BS Act. The planning of the broadcasting services bands precedes the allocation of licences, including commercial radio licences.

54    Within Part 3, s 23 provides that:

In performing functions under this Part, the ACMA 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 ACMA considers relevant.

55    Section 24 provides for the ACMA to determine relevant priorities for the preparation of “frequency allotment plans” and “licence area plans” (“LAPs”). Section 24 states:

(1)    Before preparing frequency allotment plans or licence area plans, the ACMA 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 ACMA may, by notice in writing, vary priorities.

56    Sections 25 and 26 provide respectively for the preparation of the “frequency allotment plans” and LAPs, in light of the priorities determined under s 24. Section 26, which is central to this case, relevantly provides:

(1)    The ACMA must, by legislative instrument, prepare 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.

…

Variation

(2)    The ACMA may, by legislative instrument, vary a licence area plan.

(3)    If:

(a)    a review is conducted under section 35A; and

(b)    after the completion of the report of the review, the Minister is satisfied that a licence area plan should be varied in accordance with the recommendations in the report;

the Minister may give the ACMA a written direction requiring the

ACMA to vary the licence area plan as specified in the direction.

(4)    Subsection (3) does not limit subsection (2).

(5)    The ACMA must comply with a direction under subsection (3).

(6)    Sections 23 and 27 do not apply in relation to anything done by the ACMA in compliance with a direction under subsection (3).

…

Note: For designation of licence areas, see section 29.

57    Licence areas are the geographical units around which the ACMA plans broadcasting services under the BS Act. Section 29 deals with the designation of licence areas in the following terms:

(1)    Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.

(2)    If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.

(3)    This section does not apply to a licence allocated under section 38C.

58    The number and characteristics of broadcasting services that are to be available are decided by reference to these licence areas and specified in the LAPs. For example, the LAP for the area known as “Nambour RA1” provides for three national radio broadcasting services and three commercial radio broadcasting services.

59    Section 27, which mandates wide public consultation in certain circumstances, is also important. Section 27 provides as follows:

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

…

Record-keeping requirements

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

CONSIDERATION

The applicability of the wide public consultation requirement — Grounds 1, 2(a)

60    The applicants’ fundamental proposition was that when the ACMA considered Sunshine’s request and decided that there was no sufficient case to propose a variation to the Nambour LAP by changing the boundary of the Nambour RA1 licence area, the ACMA was performing a function under s 26(2) of the BS Act. If this were so, then s 27(1) of the BS Act was engaged. Since s 27(1) required the ACMA to make provision for wide public consultation in performing its functions under s 26, then, so the applicants’ argument ran, the ACMA was in breach of the procedure mandated by the BS Act.

61    The applicants had a subsidiary argument about the nature of the s 27(1) obligation to “make provision for” wide public consultation. Referring to Nezville Pty Ltd v Australian Broadcasting Authority [2001] FCA 29 (“Nezville”) at [37], the applicants maintained that this obligation required the ACMA to undertake the consultation in respect of the whole of a proposed LAP or LAP variation. For present purposes, this may be accepted — providing that the obligation under s 27(1) has arisen. The critical question in this proceeding is whether the obligation arose. If the challenged decision was not made in performance of a function under s 26, then there was no consultation obligation. In this event, it would be unnecessary to express any definitive view about the content of the obligation to which s 27(1) gives rise.

62    There are numerous reasons why I would reject the applicants’ submission that, in making the challenged decision, the ACMA was performing a function under s 26(2) of the BS Act. The primary reason is that the content of Part 3 of the BS Act, the nature of s 26, the text of s 26(2) and the purpose of the obligation created by s 27(1) provide little support for the applicants’ position.

Part 3

63    As already noted, ss 26 and 27 are located in Part 3 of the BS Act. In determining whether the ACMA was performing a function under s 26(2) such as to engage s 27(1), the first step is to consider these provisions in their statutory context. This requires consideration of Part 3 of the BS Act. The nature of the functions conferred on the ACMA by Part 3 militate against the proposition that, merely by requesting a variation of a LAP, Sunshine obliged the ACMA to undertake a function under s 26, thus engaging s 27(1). Part 3 does not, relevantly, operate to confer rights upon individuals.

64    Part 3 sets out a series of steps that must be undertaken before a licence can be granted. The steps, which are of increasing particularity, determine how broadcasting rights will be allocated in a particular region. See generally RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 (“RG Capital Radio”) at 190 [19], [21]. These steps include:

1.    determining, by notice in writing, the priorities as between particular areas of Australia and as between different parts of the broadcasting services bands for the preparation of frequency allotment plans and licence area plans (s 24);

2.    preparing frequency allotment plans that determine the number of channels available in particular areas of Australia to provide broadcasting services using a relevant part of the radiofrequency spectrum (s 25); and

3.    preparing LAPs, consistent with the relevant frequency allotment plan, 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 (s 26(1)).

65    The applicants’ case concerns a request to vary a LAP. The making of a LAP is not an administrative act. Rather, the making of a LAP is a legislative act involving the creation of “new rules of general application to those wishing to provide broadcasting services in the licence area”: see, e.g., SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604 at 607 (“SAT FM”), cited with approval in RG Capital Radio at 195 [48]. As Sundberg J said in SAT FM 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.) See also RG Capital Radio at 202 [78].

66    A LAP creates rules of general application for broadcasting services providers as a class, as opposed to conferring specific rights on an individual provider, such as Sunshine. It is plain enough that ss 24–26 are not concerned with the disposition of individual rights (although they may affect them) but with the overall planning of broadcasting services, including the planning of priorities between different areas and different parts of the band (s 24), and the making of frequency allotment plans (s 25) and LAPs (s 26). LAPs are part of the framework that must be in place before commercial broadcasting licences can be granted, and the licences must operate within this framework. As the Court said in RG Capital Radio at 202 [78], “notwithstanding the power of variation given by s 26(2), a licence area plan is obviously expected to have a moderately long term application and lay down parameters within which decisions affecting individuals will be taken”. This is because LAPs are a key part of the regulatory framework, intended to be conducive to stability and predictability. Thus, the making of a LAP “does not determine whether a particular broadcaster or aspirant is to be permitted to deliver a particular category of broadcasting service for which the LAP makes provision”: Nezville at [24]. Nor is the variation of a LAP intended to serve that purpose. The allocation process is a separate exercise, which, with respect to commercial broadcasting services, is dealt with under Part 4 of the BS Act.

Section 26

67    Section 26 is not just concerned with making and varying LAPs, but is a complex provision conferring numerous duties and powers on the ACMA. Thus, the ACMA must prepare LAPs for broadcasting services (s 26(1)), and must comply with ministerial directions (e.g. s 26(5)). The ACMA may prepare LAPs for television broadcasting services (s 26(1B)), and may vary a LAP (s 26(2)).

68    The functions referred to in s 27(1) must be considered in this light. Notwithstanding s 26(1M), it would appear that Parliament regards a “function” in s 26 as embracing a duty or obligation and a merely facultative power. Put another way, the word “functions” in s 27(1) embraces “the sum total of the activities Parliament has entrusted” to the ACMA in ss 24, 25 and 26 of the BS Act: see Hazell v Hammersmith and Fulham London Borough Council [1990] 2 QB 697 at 722 (Divisional Court), 785 (Court of Appeal); also [1992] 2 AC 1 at 29 (Lord Templeman).

69    It is clear enough, however, that, in making the challenged decision, the ACMA did not perform any of the functions described in the positive terms of s 26. That is, the ACMA did not prepare a LAP for broadcasting services (s 26(1)) and did not vary a LAP (s 26(2)). Rather, the ACMA received and considered a request that it vary a LAP and decided that there was no sufficient case to propose the requested variation. Hence, the ACMA did not perform any of the functions expressly entrusted to it in s 26 of the BS Act. If this were all, then s 27(1) could not have been engaged.

70    As noted, the applicants sought to avoid this conclusion with the proposition that a negative decision not to vary a LAP is as much a performance of a function under s 26(2) as an affirmative decision. In many cases the courts have in fact held that, where a statute has expressed a decision-making power only in terms of a positive exercise of discretion, nonetheless, by necessary implication, the power covers a negative decision not to exercise power: see WorldAudio at 473 [29]. Whether this is in fact the effect of a statutory conferral of power depends on the proper construction of the statutory provision in question – in this case s 26(2) of the BS Act.

The variation power

71    The nature of the power conferred by s 26(2) tells against the applicants’ case that when the ACMA decides not to enter into the making of a positive decision to vary a LAP, it performs a function under s 26(2). The variation of a LAP under s 26(2) involves the amendment of the existing rules created by an existing LAP and the formulation of new rules of general application. It is therefore also in the nature of a legislative, as opposed to an administrative, act: the considerations regarding moderately long term operation of a LAP and their significance for broadcasting service providers as a whole apply here too.

72    Further, the amendments effected to s 26(1) and (2) by the Broadcasting Legislation Amendment (Digital Radio) Act 2007 (Cth) enacted after the decisions in SAT FM and RG Capital Radio (see [65] above) ensured that the making and the variation of a LAP under these provisions is by legislative instrument and subject to the Legislative Instruments Act 2003 (Cth) (“Legislative Instruments Act”). Any variation effected under s 26(2) would be subject to parliamentary control (Legislative Instruments Act, s 42) and any proposed variation would be subject to wide public consultation (BS Act, s 27(1)). In keeping with this, the explanatory memorandum that accompanied the Broadcasting Services Bill 1992 (Cth) stated (at p 30):

Clause 27(1) requires the [Authority] to provide for wide public consultation when performing its functions under clauses 24 (preparation of frequency allotment plans), 25 (preparation and variation of licence area plans) and 26 (determination of planning priorities).

(Emphasis added.)

73    In this context too, it is relevant that s 26 of the BS Act does not provide for the receipt or consideration of applications or requests by actual or potential licence holders or other persons to vary a LAP. A person such as Sunshine could, of course, request the ACMA to consider a proposal to vary a LAP. Yet the absence of any provision contemplating a request of this kind indicates that the ACMA is not performing a function under s 26, as contemplated by s 27(1), when it makes an evaluation of such a request and determines, as in this case, that there is “no sufficient case to propose a variation”.

74    In submissions filed, with leave, after the hearing, the applicants submitted that “[t]he making of a decision on the application of a member of the public (or a member of a class of persons) is not incompatible with that decision being legislative in character”. This proposition may be accepted. The point is not, however, one of strict “incompatibility”. Rather, the point is that, for the most part, legislative decisions are general in operation and are not directed to any particular person or persons. Having regard to this, it can reasonably be supposed that the Parliament would generally make some provision for a person to “apply” for a decision of a legislative nature if Parliament intended a person to enjoy this entitlement.

75    This was the case in the various authorities to which the applicants referred in support of their “not incompatible” submission. These authorities were Anderson v Minister for Environment, Heritage and the Arts (2010) 182 FCR 462 (“Anderson”), Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62 (“Chapman”), and Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 (“Roche”). In Anderson and Chapman, the legislation provided for “application[s] made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration”: Anderson at 467–468 [30]; Chapman at 63. In Roche, the relevant regulations provided for the applicant (amongst others) to make submissions to the National Drugs and Poisons Schedule Committee, which was required to take those submissions into account. Branson J’s comment in Roche at 459 [32] that “a sponsor of therapeutic goods may initiate the process which leads to a decision under s 52D(2)” is a reference to this provision. The Court was not directed to any authority that supported the proposition that, absent any legislative provision to relevant effect, a person can compel a body to engage in a legislative process. This would be the effect of the applicants’ submissions if accepted in this case.

76    As the ACMA noted, there are cases that address a different issue — whether persons have a right to be heard before rules of a legislative nature are adopted that affect their particular interests: see, for example, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009), [7.170]–[7.195]. This is not the issue in this case. The issue in this case is whether, having received a request for a variation from Sunshine, the ACMA is under a duty to take the request forward and to engage in wide public consultation. For the reasons explained, there is no warrant in the BS Act for the implication of such a right in Sunshine’s favour and a corresponding duty on the part of the ACMA.

77    Further, in support of their contention that Sunshine’s request required the ACMA to exercise its function under s 26(2) of the BS Act, the applicants relied heavily on the supposed relationship between the terms of a LAP and the conditions of a licence. In this regard, the applicants relied on WorldAudio, The Queen v The Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 (“Radio 2HD”) at 49, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 (“Browning”) at 505. The applicants’ argument was, in effect, that the terms of a LAP are analogous to licence conditions; and just as Sunshine could apply for a variation of the conditions of its licence, so could it apply for a variation of the LAP for the licence area in which its licence operated.

78    There are numerous difficulties with this argument. Nothing in ss 26 or 27 accords a licence holder any position of special advantage compared with any other member of the public.

79    Further, as a general rule, a licence holder does not necessarily have a right to initiate change to the conditions of a licence: everything depends on the statute under which the licence is granted. A statute may impose mandatory licence conditions on a licence. Thus, for example, s 42(2) of the BS Act provides that a commercial radio broadcasting licence is subject to the conditions in Part 4 of Sch 2 to the Act and “such other conditions as are imposed under section 43”. The ACMA cannot vary or revoke the conditions in Part 4 of Sch 2 to the Act (s 43(3)), although it can vary, revoke and impose additional conditions on a radio broadcasting licence (s 43(1)). Similarly, a transmitter licence under the Radiocommunications Act 1992 (Cth) (“Radiocommunications Act”) is subject to specified conditions (s 109(1)), many of which cannot be varied. Plainly enough, a licensee’s right to seek a variation of conditions of its licence could not extend to the many mandatory licence conditions.

80    It should be borne in mind that a commercial radio broadcasting licence holder acquires a licence in the context of the parameters that have been set by the existing LAP. There is therefore no necessary unfairness in denying to the licence holder the capacity to require the ACMA to exercise a function under s 26(2), with the consequence that it must engage in wide public consultation with respect to any variation the licence holder seeks. Further, any potential for unfairness is mitigated by the possibility of ministerial directions under s 26 and, as in this case, the ACMA’s consideration of requests for LAP variations. As stated above, it would be antithetical to the legislative nature of the functions in ss 26(1) and (2) to construe the BS Act as requiring the ACMA to undertake wide public consultation whenever it received a request for variation of a LAP.

81    In this statutory context, cases such as WorldAudio, Radio 2HD and Browning offer very little, if any, guidance as to how the provisions in question in this case should be construed. This is partly because all these cases are concerned with administrative decisions dealing with a person’s individual rights and interests. They are, accordingly, affected by different considerations from those that affect the present issue of statutory construction. Moreover, each of these cases was concerned with the statutory rights of licence holders as such. For reasons already stated, there is no apposite analogy between a licence holder’s relationship with its licence and its relationship with a LAP.

82    Thus, WorldAudio concerned an unsuccessful request to vary a condition of a radiocommunications apparatus licence under s 111 of the Radiocommunications Act. Conti J held that decisions by the ACMA relating to a licensee’s request for variation to its licence conditions were decisions made under s 111 and therefore decisions made under an enactment, reviewable under the ADJR Act. One reason for his Honour’s ruling was the absence of any other source of power for the refusal: see WorldAudio at 474 [31]. This is not so in this case, where (as discussed below) ss 10(1)(o)(ii) and 10(1)(s), as well as s 12 of the ACMA Act, can together describe the relevant functions and powers that the ACMA here exercised. His Honour also held, in WorldAudio at 474 [31], that the ACMA could not properly claim to have made no decision simply by declining even to consider the exercise of the relevant decision-making power. This is not the present case. I accept that, as the ACMA submitted, his Honour did not hold that the ACMA was under a general obligation to consider any request to vary any licence condition: for one thing, his Honour was not called on to consider the mandatory licence conditions imposed by the Radiocommunications Act.

83    Radio 2HD and Browning concerned provisions that were significantly different from the provisions in this case. Radio 2HD concerned provisions enabling the transfer of a licence with the consent of the regulatory authority. Since the Tribunal’s express function was to authorise transactions in relation to licences, the Court in Radio 2HD held (at 49) that the Tribunal was under a duty to consider an application for consent even though there was no provision for an application. Such an implication was clearly justified by the nature of the Tribunal’s function and the licence holder’s rights as such. Browning concerned a provision preventing the transfer of a lease without the consent of the regulatory authority. In Browning the legislation made specific provision for applications for consent.

84    The applicants also referred to Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 (“Mayer”) but this case is even further removed from the present. Mayer concerned s 6A of the Migration Act 1958 (Cth), which relevantly provided that an entry permit was not to be granted to a non-citizen after entry into Australia unless certain conditions were met, including that the Minister had determined that the non-citizen had refugee status. Mason, Deane and Dawson JJ held that the provision impliedly conferred on the Minister the function of determining whether the applicant had refugee status: at 303. Given the very different statutory text and context, Mayer offers minimal guidance in this case.

85    Bearing the above considerations in mind, I do not consider that any of the authorities to which the applicants referred justify the proposition for which the applicants contend, namely, that Sunshine could oblige the ACMA to exercise its function under s 26(2) of the BS Act merely by requesting a variation of the LAP.

Objective of s 27(1)

86    Within the context of Part 3 of the BS Act, the ACMA’s obligation to undertake wide public consultation when preparing or varying a LAP under s 26(1) or (2) is entirely consistent with the legislative character of the decisions involving these acts: compare SAT FM at 608. In this context, the obligation of wide public consultation “is directed to ensuring that the [ACMA] will ‘promote the objects of [the BS] Act’ and ‘have regard to’ the considerations identified in s 23”, as opposed to serving any natural justice concerns referable to any one individual’s interests: see RG Capital Radio at 198–199 [59]–[60].

87    The wide public consultation mandated by s 27(1) is designed to further the ACMA’s consideration of the wide-ranging matters to which it must have regard in performing its functions under Part 3: see RG Capital Radio at 199 [60]. As the Court observed in RG Capital Radio, at 199 [61], “the requirement of wide public consultation emphasises the general nature of a licence area plan” and, one might add, a variation of a licence area plan. The matters to which the ACMA must have regard in performing its functions under Part 3 are very broad and involve wide-ranging policy considerations. For example, the matters identified in s 23 — specifically governing the ACMA’s performance of its functions under Part 3 — include “social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally” and “the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally”.

88    The objective of the requirement for wide public consultation in s 27(1) is met when the making of a LAP or any variation to a LAP is the outcome of a process involving wide public consultation. To achieve this objective, it is unnecessary to undertake this kind of consultation whenever a member of the public, even if a licence holder or potential licence holder, requests a variation to a LAP.

89    If s 27(1) is read so as to require wide public consultation every time someone requested a variation of a LAP, irrespective of the ACMA’s opinion of its inappropriateness or lack of merits, then it is likely that the s 27(1) consultation requirement would be productive of considerable inefficiencies (in use of time, labour and money), unnecessarily burden broadcasting services providers, and promote instability.

90    Further, if s 27(1) were construed in this way, the provision would operate contrary to the objects of the BS Act stated in s 3, to the Parliament’s regulatory policy stated in s 4, and to the role of the ACMA stated in s 5. One object of the BS Act, as stated in s 3(1)(b), is “to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient” (emphasis added). According to s 4(2)(a) of the BS Act, Parliament “intends that broadcasting services … be regulated in a manner that, in the opinion of the ACMA enables public interest considerations to be addressed in a way that does not impose unnecessary … burdens on providers of broadcasting services” (emphasis added). Section 5(1)(b)(i) of the BS Act “confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will … produce regulatory arrangements that are stable and predictable” (emphasis added). If s 27(1) is read so as to require wide public consultation with respect to any suggested variation, then it is likely that the its wide consultation requirement would result in wasteful expenditure and much unnecessary work for the ACMA, other broadcasting services providers and various other interests and individuals, as well as promote uncertainty, instability and lack of confidence in the existing regulatory regime. If so construed, the s 27(1) consultation requirement would therefore work against the overarching objects and pervading values of the BS Act, rather than in their favour as would a narrower reading of the requirement.

A threshold requirement

91    Perhaps recognising that to construe 27(1) as requiring wide public consultation every time someone requested a LAP would not accord with the objects of the BS Act, Parliament’s regulatory policy or the ACMA’s role, the applicants submitted that the ACMA was not obliged to undertake public consultation in respect of all “applications” to vary LAPs. Thus, so the argument ran, the ACMA was not obliged to undertake consultation under s 27(1) where an application to vary was “insubstantial, trivial, repetitious, frivolous or vexatious”, but it was required to undertake consultation in the case of a bona fide and substantial application by a licensee to vary the LAP under which it was licensed. The difficulty with this proposition is that there is nothing in the subject matter, scope or purpose of the BS Act (or the ACMA Act) that would provide a basis for limiting the obligation to consult in this way. This is discussed further below in relation to the applicants’ proposed new grounds. I would reject the suggested limitation.

Permissibility of evaluating a request before engaging s 27(1)

92    The applicants also challenged the proposition that it was open to the ACMA to evaluate the variation sought by Sunshine as it did, on the basis that the consultation mandated by s 27(1) should occur before “the mind of the executive becomes unduly fixed” (quoting Sachs LJ in Sinfield v London Transport Executive [1970] Ch 550 (“Sinfield”) at 558). Sinfield does not, however, stand for any such general proposition. Indeed, in Sinfield, the English Court of Appeal actually held that the legislation imposed no obligation on the executive to consult with a borough council concerning the alteration of bus routes. What Sinfield illustrates is that whether or not a statute creates an obligation to consult in particular circumstances is a matter for statutory construction. Although one may accept the propositions in Sinfield and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 268 ALR 514 at 526–527; [2010] FCA 591 [44]–[45], to which the applicants referred, these propositions say little about whether or not an obligation to consult arises under any particular statute and, if so, what the legislation actually requires.

93    In the same context, the applicants also referred to Sardar v Watford Borough Council [2006] EWHC 1590 (Admin) (“Sardar”), in which Wilkie J upheld a judicial review application on the basis that the borough council had not consulted before taking a decision in principle to limit the number of hackney carriage licences. But Sardar was clearly a different kind of case to the present and, as his Honour’s judgment makes plain, turned very much on its own facts. It provides little guidance in the present case, although his Honour’s acknowledgment (at [29]) that the “formative stage” of decision-making is apt to cover different situations, from the mere identification of options to the formation of a provisional view about the appropriate course to be adopted, illustrates that a decision-maker can in fact evaluate a proposal prior to entering on a consultation without rendering the consultation nugatory.

94    Bearing in mind the matters referred to in [90] above, there can be little doubt that it was appropriate for the ACMA to evaluate Sunshine’s request before proposing a variation to the Nambour LAP changing the boundary of the Nambour RA1 licence area and entering into the wide public consultation contemplated by s 27(2). As the ACMA paper amply demonstrates, the ACMA undertook a conscientious evaluation of Sunshine’s request, having regard to a variety of matters including the objects of the BS Act (s 3) and the statutory criteria for the planning of broadcasting services (s 23). It made the challenged decision on the basis of this evaluation. Notwithstanding the applicants’ submissions to the contrary, the ACMA’s decision-making process conformed to its obligations under the BS Act.

Preliminary and incidental functions

95    In this case, for the reasons stated, the ACMA was not performing a function under s 26(2) of the BS Act, as contemplated by s 27(1). If, however, the ACMA was not performing a function under s 26 of the BS Act when it considered Sunshine’s request and determined not to propose the requested variation, what was it doing? The applicants asked this question with some rhetorical flourish; and the answer assists in explaining the misconception at the centre of this part of the applicants’ case.

96    When considering and forming a view about a request before performing a function under s 26(2), the ACMA does something preliminary or incidental to such a function. As it happens, this is something for which the ACMA’s constituting statute specifically provides. Section 10(1)(s) of the ACMA Act provides for the function of doing “anything incidental to or conducive to the performance of any of the above functions” where “the above functions” include the functions described in s 10(1)(o)(ii): “such other functions as are conferred on the ACMA by or under … the Broadcasting Services Act 1992”. Section 10(1)(o)(ii) is apt to describe the ACMA’s functions under s 26(2) of the BS Act. There can be no absence of power with respect to these functions since s 12 of the ACMA Act provides that “[t]he ACMA has power to do all things necessary or convenient to be done for or in connection with the performance of its functions”. Having regard to Part 3 of the BS Act, including s 26, and the ACMA Act, the ACMA’s receipt and consideration of Sunshine’s variation request and the challenged decision are properly characterised as a function, or functions, “incidental” or “conducive” to the performance of a function in s 10(1)(o)(ii), within s 10(1)(s) of the ACMA Act: see Australian Education Union v Department of Education and Children’s Services (2012) 285 ALR 27 at 35, 36; [2010] HCA 3 at [28], [30]–[31]. In this instance, the ACMA was not performing a function under s 26(2) of the BS Act but merely a function incidental or conducive to such a function.

97    The applicants sought to defeat this conclusion by arguing for a broad construction of the functions referred to in ss 10(1)(a)–(b) of the ACMA Act, in order that ACMA’s receipt, consideration and determination of Sunshine’s request fell within these functions. Thus, the applicants submitted that, in effect, s 10(1)(b) captures everything the ACMA might properly do in connection with its planning functions and s 10(1)(s) has no useful work to do. As it happens, however, Sunshine’s request is not aptly described as a request to “plan the availability of segments of the broadcasting services bands” within the meaning of s 10(1)(b) of the ACMA Act. Nor is it appropriately described as a request to “regulate broadcasting services … in accordance with the [BS] Act” within the meaning of s 10(1)(a). Planning and regulation are statutory duties that cannot properly be the subject of request.

98    The ACMA argued that the applicants’ interpretation would render otiose many, if not most, of the other paragraphs in s 10(1) of the ACMA Act. It is fair to say that it would deprive a number of paragraphs besides s 10(1)(s) of significance. Such an interpretation should not be favoured where there is another equally, if not more plausible, interpretation that would avoid this result: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71].

99    The applicants, in their post-hearing reply submissions, said that they argued only for the proposition that the “substantive functions in s 10(1) are stated in broad and overlapping terms”. It may be accepted that these functions are stated in terms that may overlap. Allowing for this, the better view is that the paragraphs in s 10 that non-exhaustively list the ACMA’s functions, including ss 10(1)(a)–(b), should be accorded their ordinary and natural meaning, which would permit all the functions in s 10, including s 10(1)(s) (even if more in the nature of a power than a function: see Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445 at 450; but see s 12) to operate according to their terms. As indicated already, I would not regard what the ACMA has done as aptly described by ss 10(1)(a) or (b); rather, it is appropriately described by s 10(1)(s) read with s 10(1)(o)(ii) of the ACMA Act.

100    The applicants’ contention that the power to vary in s 26(2) of the BS Act impliedly included the power not to vary does not advance their position, because the ACMA did not enter upon an exercise of the power to vary conferred by s 26(2). It would only enter upon an exercise of this power and perform a function under s 26(2) when it determined to propose a variation, in which event it was required to undertake a wide public consultation in accordance with s 27(1) before determining whether to make a variation and if so, what form it should take. Had the ACMA determined to propose the variation sought by the applicants, then s 27(1) would have required the ACMA to make this consultation before making a final decision whether to make the proposed variation or not. Only at this stage could it be said that the power not to vary was implied in the power to vary, as the applicants maintained.

101    For the reasons stated, I would reject the applicants’ principal ground for review that there was a failure on the ACMA’s part to observe procedures that were required by law to be observed. This is because there was no legal requirement that the ACMA undertake wide public consultation before making the challenged decision. I would accordingly reject ground 1 of the applicants’ further amended application.

102    Since ground 2(a) of the applicants’ further amended application was merely a different formulation of ground 1, I would also reject ground 2(a). The ACMA did not misdirect itself as to the scope of s 27(1) of the BS Act. It correctly interpreted s 27(1) as not requiring it to carry out wide public consultation in the circumstances before it. As noted earlier, the balance of ground 2 was abandoned.

Failure to have regard to relevant considerations — Ground 4

103    The gist of the applicants’ argument under ground 4 of their further amended application was that in making a decision under s 26 of the BS Act, the ACMA “was required to give genuine consideration to the views of the public that it was obliged to seek out through the process of wide public consultation” (original emphasis). Since I would reject the premise on which this proposition is based and hold that in the circumstances there was no obligation to engage in any public consultation, the failure to take into account the views that could have emerged from such consultation cannot amount to a failure to take into account relevant considerations. Accordingly, I would reject ground 4.

Irrelevant considerations — Grounds 5(a) and (b)

104    The gist of the applicants’ argument under grounds 5(a) and (b) was that the ACMA impermissibly substituted speculation about what members of the public, including residents in the relevant area and other commercial radio broadcasters, would think for the wide public consultation required by s 27(1) of the BS Act. The principles with respect to the irrelevant considerations ground of judicial review were summarised by Cavanough J in Love v State of Victoria [2009] VSC 215 (“Love”) at [191] as follows:

To successfully impugn an administrative decision on the “irrelevant considerations” ground, a challenger must satisfy the Court of three things:

(a)    that the particular consideration was in fact taken into account;

(b)    that the consideration was irrelevant, in the sense that under the applicable statutory provisions the taking into account of the consideration was impermissible; and

(c)    that the applicable statutory provisions have the effect that taking the consideration into account will result in invalidity.

The first of these requirements needs no further discussion. The second requirement is stated by Aronson, Dyer and Groves in their leading Australian work on administrative law [see Aronson, Dyer and Groves, op cit [83] above, at [5.10]] as follows:

Not only must the consideration have been irrelevant, but the Act must have forbidden its consideration.

The correctness of this statement is borne out by ample authority. In Neat Domestic Trading Pty Ltd v AWB Ltd [(2003) 216 CLR 277 at 288 [20]], in reference to the designated role of a certain company (“AWBI”) under Australian statutory export wheat marketing arrangements, Gleeson CJ said (on the express assumption that what was involved was a decision of an administrative character, being an exercise of a discretionary power):

It is to the provisions of the Act that one must look for some warrant for concluding that a particular consideration is obligatory, or available, or extraneous [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. Judicial review is not an invitation to judges to decide what they would consider fair or reasonable if they were given the function conferred upon AWBI. The appellant might genuinely believe that the system itself is unfair. A judge might share that opinion. Nothing follows from that. The question is what, if anything, the Act requires, or permits, or forbids AWBI to take into account in giving effect to its role in the system.

Likewise, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], Mason J said:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) 144 CLR 45, at 49–50], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [(1937) 56 CLR 746, at 757–758], and Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492, at 505].

The third requirement is stated by Aronson et al in the following terms (with equal application to the ground of failing to take into account relevant considerations):

Relevancy and its opposite are defined ultimately by the Act which prescribes what must or must not be considered. More than that, for these grounds to apply, the Act must be seen to stipulate that breach of such of its relevancy criteria as are in question is meant to result in invalidity.

(Some citations omitted.)

105    I would respectfully adopt this statement of the principles applicable to grounds 5(a) and (b) of the applicants’ further amended application.

106    For present purposes, it may be accepted that the ACMA entertained and took into account some suppositions as to the possible public reactions, including broadcasters’ responses, to the variation that Sunshine requested. There was, however, nothing in the BS Act that precluded the ACMA from taking into account these suppositions. There was nothing in ss 10 or 12 of the ACMA Act or in ss 26 or 27 of the BS Act that expressly or impliedly precluded the ACMA from taking such considerations into account in making the challenged decision. The suppositions were not irrelevant considerations in the sense required by the authorities: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”) at 40 per Mason J; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 (“NEAT”) at 288 [20] per Gleeson CJ; and Love at [191] per Canavough J. For the reasons already stated, I reject the applicants’ argument that the ACMA engaged in a function under s 26(2) of the BS Act and was thus required to undertake public consultation under s 27(1). This was the premise for their argument that mere suppositions about public reactions were extraneous to the decision-making process in which the ACMA engaged. Once this premise is rejected, there is no other justification for the applicants’ contention that the ACMA was precluded from taking these suppositions into account in making the challenged decision. Accordingly, I would reject grounds 5(a) and (b).

Unreasonableness — Ground 7

107    As noted above, the applicants’ judicial review application contained an unreasonableness ground. This was ground 7 in the further amended application. Although the applicants did not direct any written submissions to this ground, at the hearing they made submissions to the effect that the ground was made out. There was, however, a noticeable absence of written and oral submissions in support of this ground.

108    The ground was in substance an alternative formulation of the applicants’ “no evidence” ground, and received little independent analysis. At the hearing senior counsel for the applicants explained the way the applicants put this part of their case as follows:

We say that when one goes through every single one of these [facts] quite remarkably none of them support the finding of fact that’s found at the end. It’s a classic Wednesbury case where mistake after mistake after mistake has been made so that no reasonable person could come to the decision because the evidence doesn’t support it.

See transcript, pp 32–33. The gist of the applicants’ unreasonableness ground was that the ACMA’s decision involved so many factual mistakes that the decision was unreasonable to the point of perversity.

109    The stated particulars of this ground were to the effect of the following (assuming that paragraphs [6(a)]–[6(c)] of the further amended application were abandoned only for the purposes of the “no evidence” ground 6):

(1)    The ACMA concluded that “neither the coverage nor demographic arguments” made by Sunshine Coast Broadcasters “provided sufficiently good reason” to depart from its policy regarding variations to broadcasting licence areas: paragraph 45 of [the 23 September 2011 reasons].

(2)    Accordingly, the [challenged decision] was based on the ACMA’s conclusion with regard to community ties between the Caboolture Overlap Area [as defined] and the remainder of the Nambour RA1 licence area [to the effect] that those community ties “are sufficiently significant for the [Caboolture Overlap A]rea to be retained as one served by commercial radio broadcasting licensees from Nambour RA1”: paragraph 26 of [the 23 September 2011 reasons].

(3)    The evidence or other material referred to at paragraphs 23 to 25 of [the 23 September 2011 reasons] is incapable of justifying the factual [conclusions at] which the ACMA arrived [at (2) above].

[This proposition was said to be supported by the following:]

●    The DEEWR’s Keep Australia Working: Caboolture-Sunshine Coast Priority Employment Plan (referred to at paragraph 23 of [the 23 September 2011 reasons]) refers separately to the “Caboolture region” and the “Sunshine Coast region” and gives significantly contrasting descriptions of the demographic and economic characteristics of each region.

●    The Final Report of the Queensland Redistribution Commission’s Determination of Queensland Legislative Assembly Electoral Districts in 2008 (referred to at paragraph 23 of [the 23 September 2011 reasons]) does not identify community-of-interest ties between Caboolture and areas both to the west and north (including Woodford and Maleny) in the remainder of Nambour RA1.

●    The tourist promotional and commercial webpages relied on by the ACMA and referred to at paragraph 24 of [the 23 September 2011 reasons] do not group Caboolture and Bribie Island together with the Sunshine Coast, rather than with Brisbane, in the manner asserted by the ACMA.

●    There was no evidence before the ACMA capable of establishing that the Morayfield Shopping Centre (referred to at paragraph 24 of [the 23 September 2011 reasons]) actively promotes itself to residents of the Sunshine Coast, nor that the Morayfield Shopping Centre attracts a significant proportion of its customers from the Sunshine Coast region.

●    The primary circulation area of the Sunshine Coast Daily regional newspaper (referred to at paragraph 24 of [the 23 September 2011 reasons]) does not extend into the Caboolture Overlap Area.

●    The journey-to-work data cited at paragraph 25 of [the 23 September 2011 reasons] is incorrectly described. Further, even as incorrectly described, that statistic is irrelevant to the extent of community ties that the Sunshine Coast region shares with the Caboolture Overlap Area (rather than with the greater Brisbane region more generally). The journey-to-work data cited at paragraph 25 accordingly provides no valid basis for the “point of commonality” between the Sunshine Coast and the Caboolture Overlap Area that the ACMA purported to identify.

(4)    Alternatively, insofar as [the challenged decision] was a decision not to undertake public consultation in respect of [Sunshine’s] Application, no reasonable decision-maker in the position of the ACMA could have concluded that any community ties between the Caboolture Overlap Area and the remainder of Nambour RA1 that were demonstrated by the material before the ACMA were so substantial as to justify dismissing the Application without undertaking public consultation.

110    In substance, the allegations set out at (1), (2) and (4) of the preceding paragraph were closely connected; and in effect they amounted to different ways of expressing the same idea. They all depended on the applicants’ analysis of the matters set out at (3) in the paragraph above.

111    To understand the significance of the applicants’ complaints, it is necessary to refer briefly to the 23 September 2011 reasons, the ACMA paper and one of its attachments.

112    In the 23 September 2011 reasons, the ACMA explained that:

16.    As noted above, section 23 of the Act sets out the BSB planning criteria. The ACMA considered that the following criteria were of particular relevance:

●    paragraph 23(a) — demographics;

●    paragraph 23(b) — social and economic characteristics within the licence area and within neighbouring licence areas; and

●    paragraph 23(e) — technical restraints relating to the delivery or reception of broadcasting services.

17.    The request submitted that the majority of the overlap area should be excised from the overlap area because ‘there is little, if any, demographic connection between the residents of the southern part of the Nambour licence area and the remainder of the Nambour licence area’. Reliance was placed on the SGS report which presents information on three socio-economic characteristics of the overlap area to demonstrate the strength of community-of-interest ties between the overlap area and Brisbane, and the weakness of such ties between the overlap area and the remainder of Nambour RA1.

…

21.    Staff at the ACMA conducted additional desk-based analysis and research. This research examined Queensland and Australian government service delivery and planning decisions and strategies, retail and commercial activities and strategies, and journey-to-work data.

22.    The staff research found that many state and local government services, including transport, health and education, are delivered on the basis that the overlap area is part of the Moreton Bay Regional Council. This council was formed in 2008 when the former Caboolture Shire amalgamated with Redcliffe and Pine Rivers LGAs (both considered part of Brisbane) and illustrates the strength of ties between the overlap area and Brisbane.

23.    However, the staff research also found that there are government activities that tie the overlap area to areas in the remainder of Nambour RA1. Specifically, these were the Australian Government’s Department of Employment, Education and Workplace Relations’ (DEEWR) Keeping Australia Working regional employment strategy, which identifies Caboolture-Sunshine Coast as a priority employment area; and the Queensland Redistribution Commission’s 2008 Determination of Queensland Legislative Assembly Electoral Districts which identifies community-of-interest ties between Caboolture and areas both to the west and north (including Woodford and Maleny) in Nambour RA1.

24.    The staff research also found regional tourist promotional and commercial activities (TravelSmart Ltd., totalbyte pty ltd., Sunshine Coast Information Tourist Centre) group Caboolture and Bribie Island with the towns of the Sunshine Coast rather than with Brisbane. Further, the largest shopping centre in the overlap area, Moorayfield [sic] Shopping Centre (not listed in the SGS report) targets residents of the Sunshine Coast as customers equally as it targets residents of Brisbane, and there is a Sunshine Coast media market which includes both Caboolture and Bribie Island — defined by the circulation areas of the regional newspaper, the Sunshine Coast Daily.

25.    Staff also noted that the 2006 ABS journey-to-work data cited in the DEEWR employment strategy document demonstrates that approximately 20 per cent of Sunshine Coast residents travel south toward Brisbane to work. This is significant as it shows that a large number of residents of the Sunshine Coast share this characteristic with their counterparts in the overlap area. Rather than being a point of distinction between the two, it is a point of commonality.

26.    The ACMA staff’s assessment of the socio-economic information available is that despite the strong ties between the overlap area and Brisbane RA1 there are also community-of-interest ties between the overlap area and the remainder of the Nambour RA1 licence area (including the Sunshine Coast) to the north and that these are sufficiently significant for the area to be retained as one served by commercial radio broadcasting licensees from Nambour RA1.

113    Consistently with paragraph [26], in paragraph [45] of the 23 September 2011 reasons, the ACMA concluded:

45.    The decision not to vary the Nambour RA1 boundary was reached because neither the coverage nor demographic arguments presented by [Sunshine], nor the claims of the public policy benefits of varying the LAP, provided sufficiently good reason to act outside the ACMA’s policy published under section 27.

114    The matters addressed in these parts of the 23 September 2011 reasons, including the conclusions in paragraphs [26] and [45], were also dealt with in the ACMA paper considered and adopted by the ACMA on 25 August 2011, when it reached its decision. Under the heading, “Community of interest claims — subsections 23 (a) and (b) of the BSA”, the ACMA paper advised:

18.    On the basis of its own analysis and additional research (refer point 19 below and Attachment D), staff consider that while there are linkages between the overlap area and the remainder of the Brisbane RA1 licence area to the south, they are not exclusive of other significant linkages between the overlap and the remainder of the Nambour RA1 licence area (including the Sunshine Coast) to the north. Staff consider that these linkages are sufficient for the area to be retained as one served by Nambour licensees.

19.    This conclusion is based on additional research conducted by staff, including examination of Queensland and Australian government planning decisions and strategies, regional tourism promotional and commercial activities, retail marketing strategies, regional newspaper distribution and ABS journey-to-work data. Staff analysis of the arguments advanced in [Sunshine’s] consultant’s report and this additional evidence is presented in Attachment D.

115    “Attachment D — Response to [Sunshine’s] demographic argument”, which was part of the ACMA paper, set out in more detail the results of the research made by the ACMA’s staff and was, relevantly, the basis of the ACMA’s key findings. The document that is the 23 September 2011 reasons is in substance a restatement of the ACMA paper, including attachment D, adopted by the ACMA when it made the challenged decision. The applicants and the ACMA properly treated the ACMA paper with its attachments as the best evidence of the material before the ACMA when it made the challenged decision, as well as the best evidence of its reasoning process — although no-one suggested that there was any inconsistency between the ACMA paper and the 23 September 2011 reasons.

116    I turn first to the applicants’ complaint about the ACMA’s interpretation of the report made by the Department of Employment, Education and Workplace Relations (“DEEWR”), Keeping Australia Working, discussed in the ACMA paper and referred to in paragraph [23] of the 23 September 2011 reasons. Attachment D to the ACMA paper noted that passages in the DEEWR report’s “characterisation of the overlap area supports the notion that the overlap area has linkages in common with both Brisbane and the Sunshine Coast, and is an argument for retaining the overlap area as part of Nambour RA1”. Reference to the DEEWR report showed that it was open to the ACMA to construe the DEEWR report in this way and to find that the relevant areas had characteristics, or “linkages”, in common.

117    To the extent that the applicants also questioned the ACMA’s use of Queensland electoral boundary material, a reading of that material fails to show that the ACMA made any error in its account (also in attachment D) of the significance of State electoral boundaries.

118    By reference to paragraph [24] of the 23 September 2011 reasons, the applicants criticised the ACMA’s description of the significance of tourism in the overlap area for the Sunshine Coast more generally. Attachment D to the ACMA paper also dealt with this topic, particularly by reference to various tourism websites. It was clear from the material before the ACMA that it was open to it to make the evaluation it did.

119    By reference to paragraph [24] of the 23 September 2011 reasons, the applicants complained of the ACMA’s assessment of the relevant media markets, also dealt with in attachment D to the ACMA paper. It was apparent from the webpages of the daily newspaper that, whilst the details disclosed there were not entirely consistent, it was plainly open to the ACMA to have interpreted the information as it did.

120    The applicants contested the conclusion reached by the ACMA paper (and restated in paragraph [24] of the 23 September 2011 reasons) concerning the access to retail services. The ACMA paper, especially attachment D, considered this topic in some detail. The attachment mentioned various matters including the presence of “retail and service centres in the overlap area that attract customers from the Sunshine Coast to the north, indicating a more dynamic commercial environment than the SCB report indicates”. The attachment referred to a statement made by the Morayfield Shopping Centre, located within the overlap area, about its “meeting the needs of Caboolture, Sunshine Coast and northern suburbs of Brisbane residents”. Dismissed by the applicants as “puffery”, plainly enough, it was nonetheless open to the ACMA to treat it as a piece of evidence to support the proposition about retail service centres in the overlap area attracting customers from the Sunshine Coast to the north.

121    The applicants also attacked the ACMA’s approach to the “journey to work” data, which was restated in paragraph [25] of the 23 September 2011 reasons. The relevant statements derived from attachment D to the ACMA paper, which stated:

Drawing upon the same 2006 ABS “Journey to work” data used by SCB’s consultants, it identifies that approximately 20% of the Sunshine Coast workforce work outside the Sunshine Coast. So while it may be true that 50% of residents of the overlap area travel south to Brisbane to work, this appears to be a social attribute they share with 20% [of] residents of the Sunshine Coast.

As senior counsel for the ACMA observed, the last statement is ambiguous and in this event error should not be supposed. Even if the statement revealed an error of fact, it would not as such as attract judicial review since errors in finding of facts of this kind are errors “within the jurisdiction” of the decision maker: see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 (“Durairajasingham”) per McHugh J.

122    I would not conclude that any of the matters to which the applicants referred, considered separately or in combination, would justify a finding that the challenged decision was based on so many errors that it should be described as unreasonable in the relevant sense. The ACMA paper, which was adopted by the ACMA when it made the challenged decision, showed that the ACMA staff evaluated Sunshine’s request by reference to publicly available information on demographics, and on social and economic characteristics of the relevant areas. It is not open to the Court to second-guess the ACMA’s assessment of the weight of the various items of information on which the ACMA relied in making its decision: see Peko-Wallsend at 41 (Mason J).

123    The “unreasonable” decision ground is “extremely confined”: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. It is not established by showing that the decision is one upon which reasonable minds may differ. It is certainly not enough to show that another person might reasonably have reached a different conclusion: see Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 at 59–65; see also Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 561–563.

124    More particularly, the “unreasonableness” ground does not provide a basis for disguised merits review. This aspect of the applicants’ challenge was in truth an impermissible attempt to obtain judicial review by challenging the ACMA’s assessment of the material to which it had regard, its findings of fact and its reasoning: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629; Durairajasingham at 424 [71]–[72]. The applicants have not established reviewable error on the basis of the requisite unreasonableness. For the reasons stated, I would reject ground 7.

Adequacy of consideration — Ground 3

125    The applicants submitted that, having regard to the manner in which the ACMA reached its conclusion that significant community ties exist between the overlap area and the balance of Nambour RA1, they had established the grounds of review under ss 5(1)(e) and 5(2)(f) — that the challenged decision was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. Referring to Khan v Minister for Immigration and Ethnic Affairs (unreported, Gummow J, 11 December 1987, noted in (1978) 14 ALD 291), NEAT at 289 [24] and R v Secretary of State for the Home Department; ex parte Venables [1998] AC 407 at 497, the applicants also submitted that, for the same reason, they had established jurisdictional error in that the ACMA was shown to have adhered rigidly to an administrative policy without giving proper, genuine and realistic consideration to the merits of the case. In particular, the applicants asserted that the ACMA “applied the Licence Area Policy without regard to the merits of the community ties grounds for the application: in other words … the community ties grounds did provide good reason to depart from the Licence Area Policy, which the ACMA overlooked”. The applicants’ reference to the “Licence Area Policy” was a reference to an asserted policy that “the licence areas of existing broadcasting service bands [for] commercial and community broadcasting services represent accepted media markets and the [ACMA] will not vary them without good reason” (emphasis added): see further amended application, ground 3, particular (a) and ACMA paper, Attachment B.

126    The ACMA did not dispute that it had such a policy, but argued, first, that the very policy itself required the ACMA to have regard to the merits of the case. This may be accepted. Secondly, the ACMA contended, and it is plainly the case, that it did in fact have regard to the merits of Sunshine’s request, as a result of which it decided that the material put forward in that request did not make a “sufficient case to propose a variation to the Nambour LAP changing the boundary of Nambour RA1”.

127    The 23 September 2011 reasons indicate that the ACMA not only had regard to the matters raised in Sunshine’s request, but also acknowledged that there was some force in some of Sunshine’s points: see, for example, paragraphs [22] and [26] (see [112] above) and [33] and [34] of the 23 September 2011 reasons. Indeed, the 23 September 2011 reasons show that, having made an evaluation of the various factors, the ACMA concluded that, on balance, none of Sunshine’s coverage or demographic arguments or claimed public policy benefits provided sufficiently good reason to propose a variation to the Nambour LAP.

128    That the challenged decision was the outcome of the ACMA’s evaluation of the matters raised in Sunshine’s request by reference to publicly available material is confirmed by the ACMA paper and attachments D and G to that paper. The ACMA’s evaluative approach was spelt out at the commencement of the ACMA paper, which stated:

12.    Section 27 of the BSA requires the ACMA to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA in performing its functions under sections 24, 25 and 26 (s.27(2)). One of these assumptions is that licence areas of commercial broadcasting services using the broadcasting services bands ‘represent accepted media markets and the ABA will not vary them without good reason, other than to update them where boundaries are based on outdated Census descriptions. This approach is also reflected in the ACMA’s draft policy on LAP variations.

Formulation of test

13.    The question for consideration in deciding whether to vary a LAP may be expressed as follows: ‘Having regard to the matters in s.23 BSA, would the proposed LAP variation promote the objects of the Act, including the economic and efficient use of the radiofrequency spectrum?’ This question enables ‘first principles’ consideration of a LAP variation request in accordance with established planning criteria. A full description of the legal framework for varying radio LAPs is provided in Attachment B.

14.    Consistent with s.23, the question for consideration may be undertaken in three steps:

●    Step 1: Evaluate SCB/SCM’s claims;

●    Step 2: Consider the practical effect of the proposed variation; and

●    Step 3: Taking account of its practical effects, consider whether the proposed variation would promote the objects of the Act, including the economic and efficient use of the radiofrequency spectrum.

129    The terms in which the ACMA’s conclusions were set out in the 23 September 2011 reasons are entirely consistent with this approach, including the ACMA’s statement that:

44.    On balance, the ACMA considered that not proceeding with the variation better promotes the objects of the Act because retaining the existing Nambour RA1 boundaries will preserve the availability of the existing range of services and the programming they provide and promote diversity in control.

130    Attachment G to the ACMA paper was the document entitled “Decision Matrix” evidently prepared to compare the consequences of Sunshine’s request with other options and to assist in the ACMA’s evaluation process. As noted above, Attachment D, discussed more fully at [115]–[121] above, evidenced how the ACMA evaluated Sunshine’s request by reference to publicly available information on demographics, and on the social and economic characteristics of the relevant areas.

131    Having regard to the terms of the policy, the ACMA paper with its attachments, and the 23 September 2011 reasons, there is no basis for finding that the challenged decision was made in accordance with a rule or policy without regard to the merits of the particular case within the meaning of s 5(2)(f) of the ADJR Act, or without giving proper, genuine and realistic consideration to the merits of the case. As stated already, it is not open to the Court to second-guess the ACMA’s assessment of the weight of the various items of information on which the ACMA relied in making its decision. This part of the applicants’ challenge was also an impermissible attempt to have the Court review the merits of Sunshine’s request, by calling into question the ACMA’s assessment of the material to which it had regard, its findings of fact and its reasoning.

132    The applicants have not established reviewable error on this ground. For the reasons stated, I would reject ground 3.

Proposed new grounds

133    In the draft further amended originating application filed after the hearing (though foreshadowed at the conclusion of the hearing on 28 March 2012), the applicants sought to add the following grounds of review:

8.    Alternatively, inasmuch as the Decision was made in the performance of the ACMA’s incidental or preliminary functions under the ACMA Act, the ACMA took irrelevant considerations into account, and/or the Decision involved an error of law, and/or the Decision was otherwise contrary to law: ADJR Act, ss 5(1)(e) & 5(2)(a), s 5(1)(f), s 5(1)(j).

Particulars

a.    The ACMA incorrectly considered that it was performing a function under sections 24, 25 and 26 of the Act in making the Decision and, in consequence, erroneously applied the Licence Area Policy as an operative constraint on the making of the Decision.

b.    The ACMA erroneously undertook a detailed analysis of the substance of the Application and reached concluded views as to its merits, in a manner inconsistent with the incidental or preliminary nature of the ACMA’s function and which subverted the statutory scheme of Part 3 of the Act.

134    The ACMA opposed the inclusion of the new grounds on the basis that it was too late to amend and the amendment would be futile. As to timing, the ACMA submitted that the applicants could have sought to include the new grounds at an earlier date, because, as early as February 2012, the ACMA had affirmed that the challenged decision had not involved the performance of a function under s 26, for the purpose of s 27, but, “at most, was doing something preliminary and incidental to its function under s 26” see paragraph [23.2] of the outline of the respondent’s submissions dated 24 February 2012. The ACMA submitted that since the proposed new review grounds relied on the premise that the challenged decision was in exercise of a function preliminary or incidental to a function under s 26, these grounds could have been raised immediately after these February submissions, as opposed to in submissions filed on 20 April 2012 after the hearing. I am inclined to the view that the ACMA’s analysis should be accepted, although, as indicated below, the matter is less cut and dried than the ACMA would have it.

135    The ACMA’s defence to the applicants’ judicial review grounds only assumed its final form on the second day of the two-day hearing when senior counsel for the ACMA located ss 10 and 12 of the ACMA Act as the express statutory source of the ACMA’s function or power to receive, consider and decide on Sunshine’s request. This crystallised the parties’ competing contentions. Yet the ACMA’s late reference to these provisions did not mean that the applicants were required to meet a wholly different case from that which they came to meet. As the ACMA noted in its post-hearing submissions in response, the applicants’ position was that the classification of a function as one under a particular provision did not depend on whether ss 10(1)(o)(ii) and 10(1)(s) and/or s 12 of the ACMA Act provided the source of power to perform the function. Further, the applicants maintained that these provisions merely identified a function or power that would have been implicit in any event. With these considerations in mind, I am inclined to accept that, as the ACMA said, the ACMA’s late reliance on ss 10 and 12 of the ACMA Act did not relevantly alter the position. Nonetheless the position is not free from doubt. Accordingly, I turn to the question of whether or not the amendment to add the proposed new grounds should be refused because to add those grounds would be futile.

136    There is no doubt that the ACMA considered Sunshine’s request for a variation of the Nambour LAP. Whether or not it was under an obligation to do so — being an obligation to be implied from the governing legislation — need not be considered here.

137    If there is such an obligation, there are effectively two aspects to the exercise of discretion. There is the “gateway” issue — whether the proposed variation is of a kind that makes it appropriate for the ACMA to enter upon the function contemplated in s 26(2), including the process of wide public consultation required by s 27(1) of the BS Act. There is also the discretion as to the factors that the ACMA takes into account when forming a view on the “gateway” issue.

138    The applicants argued that the ACMA’s discretion was limited in two respects. First, as already mentioned, the applicants argued that the ACMA can only refuse to take forward a proposed variation to a LAP where the proposal is “insubstantial, trivial, repetitious, frivolous or vexatious” or has some comparable defect. As stated earlier, there is simply no statutory basis for such a limitation. The applicants’ submission in this regard is discussed further below. Secondly, the applicants argued that, in considering the proposed variation, the ACMA was not permitted to take into account the policy that it would apply in discharge of its function under s 26 and the merits of the proposed variation so far as they bear on the gateway issue.

139    There is no statutory statement of the matters that the ACMA may or must consider in exercise of the discretion involved in the challenged decision. There are no legislative provisions providing for the receipt or consideration of a request like that made by Sunshine, to vary a LAP. In the words of Dixon J in Browning at 505, there is no “positive indication” of such considerations. The ACMA’s discretion is therefore “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”: see Browning at 505 (Dixon J); Radio 2HD at 49 (Stephen, Mason, Murphy, Aickin and Wilson JJ); Peko-Wallsend at 39–40. As Mason J said in Peko-Wallsend at 40 in a much-quoted passage:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which is in its terms unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

(Citations omitted.)

140    This does not mean that the ACMA can exercise its discretion in any arbitrary or perverse way: compare Browning at 505 and Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at 551 [133]. As Dixon J went on to say in Browning at 505:

I have before remarked on the impossibility, when an administrative discretion is undefined, of a court’s doing more than saying that this or that consideration is extraneous to the power. But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon.

(Citations omitted.)

141    In Radio 2HD at 49, Stephen, Mason, Murphy, Aickin and Wilson JJ referred to these statements of Dixon J in Browning before observing that “[t]he applicant therefore shoulders a very heavy, indeed an impossible, burden” in seeking to show that the Tribunal had no discretion to refuse consent to the licence transfer: see [83] above. In this case, the applicants carry a heavy burden in seeking to establish that the discretion to consider Sunshine’s request for a variation of the Nambour LAP was limited in the way they have argued.

142    In this context, a particular consideration would be irrelevant only if it was extraneous to any purpose falling within the scope and object of the ACMA’s discretion in carrying out any obligation to consider a request to vary a LAP under s 26(2) of the BS Act. The fact that at the time it made the challenged decision the ACMA mistook its task as one that was authorised by s 26 of the BS Act, rather than under ss 10 and 12 of the ACMA Act, does not of itself disclose reviewable error — providing its misunderstanding of its task did not lead it to take into account such an extraneous consideration: see Lockwood v The Commonwealth (1954) 90 CLR 177 at 184.

143    In support of their proposed new grounds, the applicants contend that the ACMA “erroneously applied the Licence Area Policy as an operative constraint on the making of the [challenged] [d]ecision”: see also above [125] and following. This was presumably a reference to the statements made by the ACMA in the ACMA paper at paragraphs [12] and [43] concerning the ACMA’s stated policy. For convenience, I set out paragraph [12] again, since it is critical to an understanding of this argument. Paragraph [12] of the ACMA paper stated that:

12.    Section 27 of the BSA requires the ACMA to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA in performing its functions under sections 24, 25 and 26 (s.27(2)). One of these assumptions is that licence areas of commercial broadcasting services using the broadcasting services bands ‘represent accepted media markets and the [ACMA] will not vary them without good reason, other than to update them where boundaries are based on outdated Census descriptions. This approach is also reflected in the ACMA’s draft policy on LAP variations.

144    The substance of the applicants’ argument would appear to be that the ACMA impermissibly took account of that “good reason” policy because:

(a)    the policy itself assumed that a process of public consultation would have taken place before it came to be applied;

(b)    taking into account the “good reason” policy “so as to prevent the carrying out of wide public consultation … inverted the statutory scheme for the proper conduct of [the ACMA’s] planning function under ss 24, 25 and 26”; and

(c)    taking account of a policy that was designed to be applied in the performance of functions under ss 24, 25 and 26 was necessarily improper (within the meaning of ss 5(1)(e) & 5(2)(a), 5(1)(f) and 5(1)(j) of the ADJR Act) if the function being carried out was preliminary to the performance of a function under ss 24, 25 or 26 of the BS Act.

145    If, in engaging in the process of varying a LAP under s 26 of the BS Act, the ACMA would properly take into account the “good reason” policy (see [125]–[132] above), then it is plainly rational and consistent with the BS Act for the ACMA to have regard to that policy in deciding whether a request to vary a LAP of the kind made by Sunshine should be carried forward and the s 26 process engaged. It would be anomalous if the “good reason” policy was a permissible consideration for making or declining to make a variation once the ACMA had entered upon its legislative function, including undertaking public consultation, but an impermissible consideration at the anterior step of deciding whether it was appropriate to engage in that function or not: compare Radio 2HD at 50–51. There is, moreover, no part of the subject matter, scope and purpose of the BS Act that can, by implication, be interpreted so as to preclude the ACMA from taking the “good reason” policy into account when making this anterior decision.

146    Furthermore, I do not consider that there was any merit in the applicants’ assertion that the policy applied only to the preparation, not the variation, of a LAP. There was little argument on this point but, plainly enough, it was open to the ACMA to have regard to the policy in both preparation and variation determinations, since, as indicated above, a proposed variation is affected by similar considerations to the initial preparation of a LAP.

147    For the foregoing reasons, the first argument that the applicants seek to make by reference to the proposed new grounds is not fairly arguable.

148    The applicants’ second argument was that the ACMA “erroneously undertook a detailed analysis of the substance of [Sunshine’s] application and reached concluded views as to its merits”. The applicants argued that, “by undertaking a full analysis of the proposed variation without the benefit of wide public consultation, the ACMA subverted the statutory scheme of Part 3 of the [BS] Act”. At the hearing and in relation to this proposed new ground, the applicants’ submission was that the only relevant issue for the ACMA when it received a request for a variation of a LAP and the only matter that it could consider before embarking on its function under s 26 of the BS Act was whether the request was “insubstantial, trivial, repetitious, frivolous or vexatious”. The applicants argued that Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (“Padfield”) supported their position.

149    I have already referred to the lack of statutory support for the applicants’ proposed limitation. As stated above, there is no aspect of the subject matter, scope or purpose of the BS Act or the ACMA Act that would support this implied limitation on the ACMA’s discretion to consider variation requests. The applicants’ further submission in their post-hearing submissions that the criteria to which it referred were not exhaustive did not improve their argument, since the applicants failed to indicate any other relevant limitation that might be implied from the subject matter, scope or purpose of the legislation.

150    On the other hand, in deciding whether to initiate the process that could lead to the variation of a LAP under s 26(2) of the BS Act, including carrying out the wide public consultation required by s 27(1), it would be irrational for the ACMA not to have some regard to the merits of a proposed variation. As the ACMA noted in its post-hearing submissions in response, one of the House of Lords’ criticisms of the Minister’s decision in Padfield was that the Minister had not had regard to the merits of the complaint in deciding not to refer it: see Padfield at 1049 (Lord Hodson), 1059 (Lord Upjohn). Further, their Lordships rejected the appellants’ contention in that case that the Minister’s duty was “to refer every genuine and substantial complaint” or that an aggrieved person had an “absolute right to an enquiry”: see Padfield at 1029 (Lord Reid), 1045–1046 (Lord Hodson), 1057–1058 (Lord Upjohn); also 1038–1039 (Lord Morris, dissenting).

151    In any event, as the ACMA noted, even if the applicants’ limitation were accepted, it would be virtually impossible in many cases for the ACMA to determine whether a request for variation was “insubstantial, trivial, repetitious, frivolous or vexatious”, without giving some consideration to the merits of the request. Indeed, in using the adjective “substantial”, the members of the House of Lords in Padfield meant something akin to “having merit”: see Padfield at 1029–1032 (Lord Reid), 1054 (Lord Pearce). If a test of substantiality were appropriate in the context of the BS Act, then, in this case, the ACMA would have applied no relevantly different approach since the ACMA’s consideration of Sunshine’s request involved comparing the material put forward by Sunshine with the results of “desk-based analysis and research” for the purpose of deciding whether there was a sufficient case to take forward: see 23 September 2011 reasons at paragraph [21].

152    To the extent that the House of Lords in Padfield held or intimated that, in the circumstances, the Minister was under a duty to refer the complaint for investigation, this must be understood in the context of the complaint in that case and the very different legislation at issue. This legislation provided a defined category of aggrieved persons with the remedy of having complaints dealt with by a committee of investigation, on referral by the Minister: see Padfield at 1027, 1032 (Lord Reid), 1045 (Lord Hodson), 1051–1053 (Lord Pearce). The remedy would have been rendered nugatory if no duty was imposed on the Minister to refer a complaint.

153    It is clear enough that Part 3 of the BS Act, especially in ss 24, 25 and 26, is of an entirely different nature to the legislation considered in Padfield. As already stated, the BS Act evidently contemplates that LAPs created under s 26 by legislative instrument will have a relatively enduring nature, and that the public (including relevant licence holders) are not to be unduly burdened with proposed or actual changes to them. In this context, there is no reason to suppose that Parliament would have intended that the ACMA be obliged to discharge its function under s 26(2), including undertaking wide public consultation, without paying any regard to the merits of the requested variation beforehand.

154    The applicants argued at some length in their post-hearing submissions that the ACMA’s decision went beyond determining whether or not it was appropriate to take Sunshine’s request for a variation forward so as to engage in a function under s 26. Referring to the ACMA paper and the 23 September 2011 reasons, the applicants argued that “the ACMA reached a concluded view that the proposed variation was in substance inappropriate” notwithstanding that “the very purpose of the s 27 requirement … was to ensure that the views of the public … would be appropriately and meaningfully taken into account”. I reject this attempted characterisation of the ACMA’s decision. For the reasons already stated, no consultation obligation had as yet arisen under s 27(1). In any event, the applicants’ characterisation of the challenged decision is inconsistent with the terms in which the ACMA stated the decision, as set out in its resolution of 25 August 2011, that “there was no sufficient case to propose a variation to the Nambour LAP changing the boundary of Nambour RA1”.

155    The gist of the applicants’ argument is that, because of the role played by public consultation in s 27(1) of the BS Act, the ACMA is not permitted to consider the merits of a proposal, or is not permitted to do so “in detail”, without the benefit of the views of the public, but this assumes the very issue that falls for the Court’s determination. For the reasons stated, I would not regard this as fairly arguable.

156    As the proposed new grounds are not fairly arguable, I would not grant leave to amend so as to include them in the applicants’ application: compare Nicholls v Australian Federal Police (2009) 192 A Crim R 425 at 437–438; [2009] FCA 15 at [66].

OTHER MATTERS

157    Since I do not consider that the challenged decision involved an exercise of a function under s 26 of the BS Act, which engaged the wide public interest requirement in s 27, it is unnecessary to consider whether the application, insofar as it is brought under the ADJR Act, would be incompetent.

158    Further, since the applicants have failed to make out any ground of review, it is also unnecessary to consider the availability of the remedies under s 39B of the Judiciary Act or under the ADJR Act.

DISPOSITION

159    For the reasons stated earlier, I would grant leave to the applicants to amend their amended application in the terms of pages 3–7 and in terms of the proposed amendments to paragraphs [6] and [7] on page 8 of their draft further amended application. I would not grant leave to amend with respect to paragraph [8] on pages 8–9, to add the proposed new grounds. There was little or nothing said in submissions about the amendments proposed on page 2. Having regard to my conclusions, I would not grant leave to make these amendments.

160    Also, I would dismiss the application, because for the reasons stated, none of the grounds of review advanced by the applicants have been made out. The parties will have seven days to file written submissions on costs.

Associate:

Dated:    2 November 2012