Federal Court of Australia

Australian National Imams Council Limited v Australian Communications and Media Authority [2022] FCA 913

ORDERS

THE COURT ORDERS THAT:

1.    The second further amended originating application be dismissed.

2.    The applicant pay the respondents’ costs as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1.    THE JUDICIAL REVIEW APPLICATION

1    The applicant, the Australian National Imams Council Limited (ANIC), applies under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) for an order setting aside the decision of the first respondent, the Australian Communications and Media Authority (ACMA), made on 18 May 2021 renewing the community radio broadcasting licence of the second respondent, Muslim Community Radio Incorporated (MCR), and a declaration that MCR’s community radio broadcasting licence expired at midnight on 31 May 2021.

2    ACMA filed a notice of objection to the competency of the application on the ground that an application for review under the ADJR Act may only be made by a person aggrieved by a decision and ANIC is not such a person, with the consequence that the Court has no jurisdiction to determine the application.

3    The judicial review application is brought on a multiplicity of grounds involving issues of statutory construction and fact.

4    I have concluded that ANIC has standing as a person aggrieved by ACMA’s decision to renew MCR’s licence to bring the application challenging ACMA’s decision under the ADJR Act, but that ANIC’s grounds of challenge must be rejected.

5    It is appropriate immediately to record that ANIC’s submissions of misconduct and impropriety of some kind on the part of ACMA in its role in this proceeding are without substance. ANIC’s perception of ACMA’s conduct in this proceeding is inaccurate.

6    An administrative decision-maker such as ACMA, which has continuing functions to be exercised in respect of the subject matter of the decision under challenge, is expected to maintain its impartiality in a proceeding such as the present generally by not entering the field as a protagonist or, if it does, so by confining its submissions to issues of its powers and procedures: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35–36.

7    ACMA’s submissions in this case were confined to issues of statutory construction. ACMA’s assertion of a lack of jurisdiction and the incompetency of the application reflected its submissions on the proper construction of the Broadcasting Services Act 1992 (Cth) (the Broadcasting Services Act). ANIC complained that ACMA failed to act impartially because ACMA ought to have, amongst other things: (a) drawn my attention to the instances where it had apparently changed its mind about the statutory construction issues between the making of the decision and the hearing, and (b) presented the issues of statutory construction as involving competing reasonably open arguments. These complaints are unfounded. As I indicated during the course of the hearing:

(1)    ACMA was not bound to adopt a position in the hearing that the issues of statutory construction involved competing reasonably open arguments unless that in fact was ACMA’s view at the time of the hearing;

(2)    to the contrary, ACMA was bound to inform me of its position in respect of the statutory construction issues consistently with the views it in fact held at the time of the hearing;

(3)    if ACMA had simply informed me during the hearing that the issues of statutory construction involved competing reasonably open arguments, as ANIC posits it ought to have, then:

(a)    ACMA would have been misrepresenting its position to the Court, which would have been improper; and

(b)    ACMA would have been failing in its duty to assist the Court to understand the statutory scheme as a coherent whole;

(4)    the fact that ACMA may have held one view at the time of the decision about the proper construction of the Broadcasting Services Act and another view at the time of the hearing is not material to the validity of its decision – its decision either is or is not valid;

(5)    ACMA was not bound to inform me that it held one view about the proper construction of the Broadcasting Services Act at the time of the decision and another view at the time of the hearing given that:

(a)    ANIC had focused on these apparent differences in its submissions, written and oral;

(b)    while statutory construction issues are contestable, there is ultimately only one correct construction upon which a court must settle; and

(c)    ACMA was not suggesting that the statutory construction issues were incontestable. It was proposing that there was a coherent statutory scheme within which ANIC’s propositions of construction were irreconcilable; and

(6)    ACMA performed precisely the role that I would expect an administrative authority of its kind to perform in a hearing of this kind. It did so efficiently, effectively and appropriately, consistent with its obligations to assist the Court to resolve the dispute as quickly, inexpensively and efficiently as possible, and according to law.

2.    BASIC FACTS

8    MCR has held a community radio broadcasting licence for the Sydney area since 2001. The “Community Interest” of the licence is identified on the licence as “Religious – Islamic”.

9    ACMA renewed MCR’s licence in 2005, 2010, and 2015.

10    The 2015 licence was due to expire on 31 May 2021.

11    MCR applied to renew that licence in November 2020.

12    In March 2021, ANIC applied to this Court to restrain ACMA from determining the application. Justice Flick dismissed ANIC’s interlocutory application: Australian National Imams Council Limited v Australian Communications and Media Authority [2021] FCA 210 (ANIC 2021).

13    The proceeding was stayed to enable ACMA to make a decision on MCR’s licence renewal application.

14    After ACMA made its decision to renew the licence, on 22 September 2021 I required ANIC to join MCR as a necessary party to the proceeding.

3.    STATUTORY CONSTRUCTION ISSUES

3.1    The statutory provisions

15    ACMA is established by s 6(1) of the Australian Communications and Media Authority Act 2005 (Cth) (the ACMA Act).

16    By s 10(1) of the ACMA Act, ACMA’s functions include the following:

(a)    to regulate broadcasting services and datacasting 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;

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

…

17    The Broadcasting Services Act contains objects in s 3(1), including:

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

…

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

…

(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

…

(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

…

18    Section 4(2)(a) of the Broadcasting Services Act provides that the 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 financial and administrative burdens on providers of broadcasting services.

19    By s 5(1)(a) of the Broadcasting Services Act, ACMA is charged with responsibility for monitoring the broadcasting industry. By s 5(b), ACMA is given functions:

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 the Act.

20    Part 2 of the Broadcasting Services Act sets out the categories of broadcasting services which include community broadcasting services. Under s 15, community broadcasting services are broadcasting services (defined, relevantly, in s 6(1) as a service that delivers radio programs) that are provided for community purposes, are not operated for profit or as part of a profit-making enterprise, and that provide programs that are able to be received by commonly available equipment and are made available free to the general public.

21    Under Pt 3 of the Broadcasting Services Act (entitled “Planning of the broadcasting services bands”), 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.

22    ACMA must also “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”: s 26(1). The broadcasting services bands means, relevantly, the parts of the radiofrequency spectrum that are designated under the Radiocommunications Act 1992 (Cth) as being primarily for broadcasting purposes (or partly, in the case of digital radio broadcasting): s 6(1). It is common ground that the parts of the radiofrequency spectrum that are so designated are a finite resource.

23    Section 29(1) of the Broadcasting Services Act provides that before allocating, relevantly, a community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, ACMA is to designate one of the areas referred to in whichever of s 26(1) or (1B) is applicable as the licence area of the licence.

24    Parts 4 and 5 of the Broadcasting Services Act deal with commercial broadcasting licences.

25    Part 6 of the Broadcasting Services Act deals with community broadcasting licences.

26    By s 80 in Pt 6, where ACMA is going to allocate one or more community broadcasting licences that are broadcasting services bands licences, the ACMA is to advertise for applications from Australian companies that represent a community interest.

27    Section 81 provides that:

(1)    A licence is not to be allocated to an applicant if:

(a)    in the case of an applicant for a CTV licence – the applicant is not a company limited by guarantee within the meaning of the Corporations Act 2001; or

(b)    the ACMA decides that subsection 83(2) applies to the applicant.

(2)    Paragraph (1)(b) does not require the ACMA to consider the application of subsection 83(2) in relation to an applicant before allocating a licence to the applicant.

28    Section 83 in Pt 6 is in these terms:

(1)    For the purposes of this Part, a company is a suitable community broadcasting licensee or a suitable applicant for a community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company.

(2)    The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide broadcasting services under a community broadcasting licence would lead to a significant risk of:

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

(aa)    a breach of a civil penalty provision occurring; or

(b)    a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

(3)    In deciding whether such a risk exists, the ACMA is to take into account:

(a)    the business record of the company; and

(b)    the company's record in situations requiring trust and candour; and

(c)    the business record of the chief executive and each director and secretary of the applicant; and

(d)    the record in situations requiring trust and candour of each such person; and

(e)    whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

(f)    whether a civil penalty order has been made against:

(i)    the company; or

(ii)    a person referred to in paragraph (c) or (d).

…

29    By s 84(2), in “deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants”, ACMA is to have regard to:

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

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

(ba)    in the case of a community radio broadcasting licence – the extent to which the proposed service or services would provide material of local significance; and

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

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

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

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

30    Section 85 provides that ACMA “is not required to allocate a community broadcasting licence to any applicant”.

31    By s 86(1), each community broadcasting licence is subject to the conditions set out in Pt 5 of Sch 2 and such other conditions as are imposed under s 87.

32    By s 87(1), ACMA may “by notice in writing given to a community broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence”.

33    Section 89 provides that community broadcasting licences remain in force for 5 years (subject to immaterial exceptions).

34    Section 90 deals with the renewal of community broadcasting licences. It provides that:

(1)    The ACMA may renew a community broadcasting licence if the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA.

…

(2)    If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.

35    Section 91 provides that:

(1)    Subject to subsection (2), if the ACMA receives an application under section 90, the ACMA may, by notice in writing given to the licensee, renew the licence for:

(a)    if:

(i)    the ACMA renews the licence after the time when the licence was due to expire; and

(ii)    under subsection 90(1E), the licence remained in force until the ACMA made a decision on the application;

the period:

(iii)    beginning immediately after the time when the ACMA made a decision on the application; and

(iv)    ending at the end of the period of 5 years that began immediately after the time when the licence was due to expire; or

(b)    otherwise—the period of 5 years beginning immediately after the time when the licence is due to expire.

(2)    The ACMA must refuse to renew a community broadcasting licence if the ACMA decides that subsection 83(2) applies to the licensee.

(2A)    The ACMA may refuse to renew a community broadcasting licence that is a broadcasting services bands licence if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee.

(3)    The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

36    Section 91A provides for an application to ACMA to transfer a community broadcasting licence. It includes these provisions:

(4)    The ACMA must not approve the transfer of a community broadcasting licence that is a broadcasting services bands licence if:

…

(c)    the ACMA decides that subsection 83(2) applies to the proposed transferee.

(5)    Paragraph (4)(c) does not require the ACMA to consider the application of subsection 83(2) in relation to a proposed transferee before approving the transfer of a licence to the proposed transferee.

37    Part 6A of the Broadcasting Services Act deals with temporary community broadcasting licences.

38    In Pt 6A, s 92B(1) provides that ACMA may allocate to a person, on application in writing by the person, a temporary community broadcasting licence.

39    Section 92C provides that:

(1)    The ACMA is not to allocate a temporary community broadcasting licence to an applicant unless the applicant:

(a)    is a company that is formed in Australia or in an external Territory; and

(b)    represents a community interest.

(2)    The ACMA is not to allocate a licence to an applicant if the ACMA decides that subsection 92D(2) applies to the applicant in relation to the licence. However, the ACMA is not required to consider the application of subsection 92D(2) to the applicant before allocating the licence.

…

40    Section 92D sets out when a company is a suitable applicant or suitable licensee in relation to a temporary community broadcasting licence in terms equivalent to s 83. Under s 92K, a temporary community broadcasting licence remains in force for the licence period (as determined under s 92G(1)(c), being a period of up to 12 months).

41    Part 10 of the Broadcasting Services Act contains remedies for breaches of licence conditions. The remedies include suspension or cancellation of a licence: s 143.

42    Part 11 of the Broadcasting Services Act concerns complaints to ACMA.

43    Part 13 of the Broadcasting Services Act concerns information gathering by ACMA, including the conduct of investigations under s 170 and the holding of hearings under s 182. Relevant provisions include the following:

168    Obtaining of information by the ACMA

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

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

(b)    may conduct investigations and hold hearings; and

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

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

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

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

169    Decision-making by the ACMA not limited to matters discovered by investigation or hearing

In making a decision on any matter relating to the functions referred to in subsection 168(1), the ACMA is not limited to a consideration of material made available through an investigation or hearing conducted in relation to the matter, but may take into account such other matters as it considers relevant, including the knowledge and experience of the members.

44    Clause 9 of Sch 2 to the Broadcasting Services Act contains standard conditions applicable to the holding of a community broadcasting licence. These include in cl 9(2):

(a)    the licensee will remain a suitable licensee;

(b)    the licensee will continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed;

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

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

(ii)    the selection and provision of programs under the licence;

(d)    the licensee will provide the service or services for community purposes;

(e)    the licensee will not operate the service or services for profit or as part of a profit-making enterprise.

45    At least one of the issues of statutory construction (specifically, ANIC’s contention that ACMA was bound to consider whether ANIC could provide a superior community broadcasting service to that provided and proposed to be provided by MCR) is relevant to the issue of ANIC’s standing as a “person aggrieved” by the renewal decision. Accordingly, I propose to decide all issues of statutory construction before resolving the question of ANIC’s standing (and the other issues in the proceeding).

3.2    Did ACMA have to decide if MCR was suitable?

46    ANIC contended that in deciding whether to renew MCR’s licence under s 91 of the Broadcasting Services Act, ACMA was bound to decide if s 83(2) applied to MCR.

47    In support of this contention ANIC said:

(1)    s 91(1) says that it is “[s]ubject to subsection (2)…”;

(2)    s 91(2) says that ACMA must refuse to renew a community broadcasting licence if the ACMA decides that s 83(2) applies to the licensee;

(3)    for s 91(1) to operate subject to s 91(2), ACMA must decide if s 83(2) applies to the licensee;

(4)    effect has to be given to the mandatory word “must” in s 91(2);

(5)    the words “ACMA decides that subsection 83(2) applies to the licensee” in s 91(2) mean that ACMA decides that the company is not a suitable applicant as provided for in s 83(2);

(6)    there is no exemption from applying s 83(2) in s 91 equivalent to the provisions in ss 81(2), 91A(5), and 92C(2), each of which make it clear when ACMA does not have to consider the suitability of the applicant. Accordingly, by implication, ACMA is otherwise required to consider the suitability of an applicant in making other decisions including the decision to renew a community broadcast licence;

(7)    ACMA must decide on the suitability of an applicant in the course of deciding whether or not to renew a licence, which is supported by the nature of the relevant considerations in s 83(3); and

(8)    in its reasons for decision ACMA said that in “assessing a renewal application the ACMA must first ask whether the applicant is a suitable licensee under subsection 91(2) and, if so, whether it should exercise its discretion to refuse to renew the licence, having regard to the statutory criteria as contemplated by subsection 91(2A)”: [6.1].

48    I consider that ANIC’s submissions involve a misconstruction of the statutory scheme.

49    It is relevant that before the commencement of the Broadcasting Legislation Amendment Act (No 2) 2002 (Cth) (the 2002 Act), s 91(1) of the Broadcasting Services Act provided that “[s]ubject to subsection (2), if the [ACMA] receives an application under section 90, the [ACMA] must, by notice in writing given to the licensee, renew the licence…” (emphasis added). In this form, s 91(1) reflected the equivalent provisions for commercial broadcasting licences, in respect of which s 47 currently provides:

(1)    Subject to subsection (2), if the ACMA receives an application under section 46, the ACMA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.

(2)    The ACMA must refuse to renew a licence if the ACMA decides that subsection 41(2) applies to the licensee.

(3)    The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

50    Section 41(2) is the suitability provision for commercial broadcasting licences equivalent to s 83(2) for community broadcasting licences.

51    The amendment to s 91(1) by the 2002 Act ensures that ACMA has a discretion whether or not to renew a community broadcasting licence.

52    The text of s 91(1) does not support ANIC’s submissions. Section 91(1) operates subject to s 91(2). This means that effect must be given to s 91(2) in accordance with its terms. Section 91(2) is structured as a “must…if” provision. That is, ACMA must refuse to renew a community broadcasting licence if the ACMA decides that s 83(2) applies to the licensee. As such, in its own terms, s 91(2) does not require ACMA to decide if or if not s 83(2) applies to a licensee before making a decision about a renewal application. It provides only that if ACMA decides s 83(2) applies it must refuse the renewal. The contingency, if ACMA decides that s 83(2) applies, is left to ACMA’s discretion. No explicit or implicit obligation is placed on ACMA to decide if s 83(2) applies or not.

53    This is consistent with the text of s 83(2). Section 83(2), in terms, leaves it to the discretion of ACMA to decide if and when to consider its state of satisfaction that a company is suitable to provide or continue to provide broadcasting services under a community broadcasting licence. This is apparent from the facts that:

(1)    s 83(2) is expressed as a discretionary power – ACMA “may” decide that s 83(2) applies to a company;

(2)    s 83(2) does not apply, in terms, to an applicant for a licence or a renewal. Rather, it applies to a company;

(3)    the relevant criterion for suitability in s 83(2) is expressed in ambulatory terms. That is, the contingency is if ACMA is satisfied that allowing a particular company to provide or continue to provide broadcasting services under a community broadcasting licence would lead to a significant risk of the specified matters. Consistent with cl 9(2)(a) of Sch 2 (which imposes a standard condition that the licensee will remain a suitable licensee) ACMA may consider if the contingency is satisfied at any time; and

(4)    s 83(2) does not say that ACMA must make a decision about s 83(2) applying to a company at any specific time and s 91 does not say that ACMA must make a decision about s 83(2) applying to a company before making a decision about renewal of a licence.

54    Properly understood, contextual considerations also do not support ANIC’s submissions. Sections 81(2) (applying to the allocation of a community broadcasting licence), 91A(5) (applying to the transfer of a community broadcasting licence), and 92C(2) (applying to the allocation of a temporary community broadcasting licence) do expressly provide that ACMA is not required to consider the suitability of an applicant when making the decision empowered by those provisions. These explicit provisions do not justify given a meaning to the text of s 91 different from its natural and ordinary meaning, which leaves it to ACMA to decide if or if not it wishes to consider its state of satisfaction about s 83(2) applying to a company on a renewal application. Sections 81(2), 91A(5) and 92C(2) should be understood to be provisions included as a matter of abundant caution – they ensure that in a circumstance where there is a new applicant (by allocation or transfer) it remains a decision for ACMA alone whether or not to consider exercising its s 83(2) decision-making process.

55    The nature of the considerations required to be considered in s 83(3), if ACMA does decide to consider whether s 83(2) applies, does not weigh against these conclusions. ANIC submitted that those considerations are “backwards looking” and require ACMA to have prior knowledge of the company, indicating that the considerations were most naturally applicable to a renewal application. In my view, consistent with the statutory scheme, it is for ACMA to decide if and when to turn its mind to the issue of suitability. It may do so at any time, but is not bound to do so on a renewal application for a community broadcasting licence.

56    The fact that ACMA apparently chose to consider the suitability issue under s 83(2) on this renewal application does not change the proper construction of the statute. As a matter of construction, ACMA was not bound to consider the suitability of MCR in deciding whether or not to renew MCR’s licence. Rather, ACMA had a discretion to decide whether or not to consider if s 83(2) applied to MCR in the course of deciding the renewal application. This discretion may be exercised at any time.

3.3    Did ACMA have to consider ANIC as a potential competing licensee?

57    ANIC contended that in deciding whether to renew MCR’s licence under s 91 of the Broadcasting Services Act, ACMA was bound to consider whether ANIC could provide a superior community broadcasting service to that provided and proposed to be provided by MCR.

58    In support of this contention ANIC said:

(1)    under s 91(2A) ACMA may refuse to renew a community broadcasting licence “if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee”;

(2)    this means that in deciding whether or not renew a licence, ACMA must act as if it were deciding to allocate the licence;

(3)    in deciding to allocate a licence, ACMA is bound by s 84(2) which says that in “deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ACMA is to have regard to” the matters specified in (a)–(f), which include “(d) the capacity of the applicant to provide the proposed service or services”;

(4)    the fact that the 2002 Act changed the requirement in s 91(1) that ACMA “must” renew a licence, to ACMA “may” renew a licence, reflects the intention that at least every five years (the maximum licence period) ACMA is to consider the renewal by reference to the same considerations that apply to a decision to allocate a licence (including whether there is a person who may provide a superior service to the licensee seeking renewal);

(5)    the change effected by the 2002 Act reflects a changed legislative intention for five yearly scrutiny of the licence, in contrast to the legislative intention underlying the original form of s 91(1) which was that community broadcasting licences be allocated on a “long-term” basis: see the Explanatory Memorandum to the Communications Legislation Amendment Bill (No 1) 1997 (Cth) at pp 2–3;

(6)    s 5(1)(b)(i) (referring to ACMA exercising its functions and powers in a manner that, in the opinion of ACMA, will produce regulatory arrangements that are stable and predictable) does not authorise ACMA to depart from the requirements of s 91(2A) and, thereby, s 84(2); and

(7)    as Flick J said in ANIC 2021 at [18], ACMA’s contrary proposition:

comes tantalisingly close to – or is at least, the very start of a progression towards – a proposition that competition between service providers largely comes to an end after a broadcasting licence is first granted. The residual concern is that such provisions do not necessarily exclude a conclusion that a licence should not be renewed because a limited resource such a[s] broadcasting frequencies can be better utilised. So much, it may have been thought, promoted efficiency. Upon greater consideration of the submissions, which time does not presently permit, that may do a considerable disservice to the positon of the Media Authority. Nor does it sit well with a more generally expressed concern that the statutory regime does in fact contemplate a renewal process after a five year licence period expires.

Justice Flick concluded that this construction issue raised a serious question to be tried ([19]).

59    I consider that ANIC’s submissions involve a misconstruction of the statutory scheme.

60    The observations of Flick J in ANIC 2021 involve no more than a recognition that issues of statutory construction are contestable. His Honour was dealing with an interlocutory application on an urgent basis. His conclusion that the construction issue raised a serious question to be tried cannot be gainsaid. But it does not weigh in the determination of the construction issue.

61    I consider that, properly construed, the Broadcasting Services Act permits but does not require ACMA to consider if another person might provide a superior service to the incumbent licensee in the course of deciding whether or not to renew a licence. This flexibility also accords with the objects of the Act in s 3(1) and the terms in which the legislature has defined ACMA’s role in ss 4(1)–(2) and 5(1)–(2) which emphasise that it is the opinion of ACMA which is determinative, and the objects of enabling “public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services” (s 4(2)(a)) and produces “regulatory arrangements that are stable and predictable” (s 5(1)(b)(i)).

62    The precise terms of s 91(2A) are critical. The section says that ACMA “may refuse to renew a community broadcasting licence” of the relevant kind “if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee”.

63    There are three key explanatory components to this statutory direction.

64    The first is that the context is not the allocation of a licence at large which is relevant to ACMA’s decision to renew a licence or not. The direction in the relevant decision-making context is “if it were deciding whether to allocate the licence to the licensee” (emphasis added). This may be contrasted with s 84(2) which refers to ACMA “deciding whether to allocate a community broadcasting licence … to an applicant or to one of a group of applicants” (emphasis added). The critical difference is that in a renewal decision, ACMA’s focus must be the hypothetical proposition that it is deciding whether to allocate the licence “to the licensee”, whereas in an allocation decision, ACMA is deciding whether to allocate a licence to an applicant or one of a group of applicants. Of itself, this is sufficient to defeat ANIC’s contention that ACMA is bound to consider whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee in the context of deciding a renewal application. ACMA cannot be so bound in the face of the statutory direction in s 91(2A) to focus on an allocation to a licensee.

65    This first difference is not accidental. It reflects a second explanatory component of s 91(2A). This second explanatory component is that s 91(2A) also directs ACMA that it may refuse to renew a community broadcasting licence if “having regard to the matters in paragraphs 84(2)(a) to (f), it considers…” (etc). That is, in terms, s 91(2A) does not direct ACMA to apply the preamble to s 84(2) (in “deciding whether to allocate a community broadcasting licence …to an applicant or to one of a group of applicants”). It directs ACMA to have regard to the matters in s 84(2)(a)–(f). Taken together with the words “whether to allocate the licence to the licensee” at the end of s 91(2A), it is clear that ACMA must have regard to the matters in s 84(2)(a)–(f) in respect of the licensee alone, not in respect of other potential or would-be licensees. Again, of itself, this is sufficient to defeat ANIC’s contention that ACMA is bound to consider whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee in the context of deciding a renewal application.

66    The third explanatory component of s 91(2A) is that it does not require ACMA to have regard to the matters in s 84(2)(a)–(f) in deciding whether or not to renew a community broadcasting licence. It provides that ACMA may refuse to renew a community broadcasting licence if, having regard to the matters in s 84(2)(a)–(f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee. This indicates that ACMA’s power of refusal is conditioned on the consideration of the s 84(2)(a)–(f) matters. In contrast, ACMA’s power to grant a renewal is not conditioned on the consideration of the s 84(2)(a)–(f) matters.

67    ANIC stressed that a decision to renew a licence is also a decision not to refuse a licence, so that there is a single discretion encompassed by ss 91(1) and (2A). This submission does not accord with the text or context of s 91. It may be accepted that it is common-place to understand a decision to grant or not to grant a right as a single decision. But the structure and text of s 91 do not reflect this approach. No doubt reflecting the legislative history (that previously the licence had to be renewed unless ACMA decided s 83(2) applied), s 91(2A), in structure and terms, is a discretion to refuse to grant a licence in the specified circumstances. That discretion is not engaged if ACMA is not exercising that discretion. That is, if it is not refusing the renewal application under s 91(2A), ACMA may renew the licence under s 91(1). In so doing, the only mandatory relevant considerations are those implied from the subject matter, scope and purpose of the Broadcasting Services Act: Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39–40. Given the terms of s 91(2A) (as discussed above), there cannot be implied any obligation to consider the position of a potentially competing licensee under s 91(1) on a renewal application.

68    These conclusions are reinforced by the terms of the Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No 2) 2002 (Cth) which says at pp 3–4 that the amendments are “to improve licensing arrangements for community broadcasting generally” and the main changes are (emphasis added):

…

to provide the Australian Broadcasting Authority (ABA) [predecessor to ACMA] with more discretion to review community broadcasting licences when deciding whether to renew them by:

–     allowing the ABA to take into account on renewal the same matters that it has regard to in deciding whether to allocate a licence (items 4 and 5 of Schedule 2).

69    Further, at p 15 the Explanatory Memorandum to the 2002 Act explains that (emphasis added):

Items 4 and 5 amend section 91 of the BSA [Broadcasting Services Act] to allow the ABA to take into account on renewal the same matters that it has regard to under subsection 84(2) in deciding whether to allocate a licence (see in particular new subsection 91(2A)).

The amendments thus allow the ABA to refuse to renew a licence where the applicant no longer meets the criteria set out in subsection 84(2). For example, the ABA may refuse to renew a licence where the licensee no longer has the capacity to provide the service (paragraph 84(2)(c)).

It will not be mandatory for the ABA to give detailed consideration to every licence renewal application against the criteria in subsection 84(2). Rather, the ABA will have a discretion as to whether it conducts a renewal inquiry, and as to the matters it considers in any inquiry. For most community licence renewals, it is expected that the ABA will not have received substantial complaints about the service and will not consider it necessary to have regard to the matters in paragraphs 84(2)(a) to (f).

…

70    Accordingly, the Explanatory Memorandum to the 2002 Act directly addresses the issue of statutory construction and is irreconcilable with ANIC’s contentions in this regard.

71    I also accept the submissions for ACMA to the effect that had Parliament intended for the renewal process to be competitive, or to incorporate mandatory consideration of competing applications (or potential applications), then it could have made that requirement clear.

72    Further, as ACMA said, s 91 does not require that on receipt of a renewal application, ACMA must open up the process so that competing licensees can apply to be granted the licence instead of the licence being renewed. If the existence of competing or superior licensees were a mandatory consideration, then some mandatory process to elicit such submissions would be the only practical and fair means by which the ACMA could ensure its decisions were made properly. However, there is no such mandatory process. The requirement for publication of the renewal application in the Gazette under s 90(2) is not such a process. That requirement is for publication of the fact that a renewal application has been made. Publication of the fact that an application for renewal has been made is not well-adapted to the eliciting of proposals for a new allocation to a third party.

73    It is also relevant that while the radio bandwidth is a finite resource, it is not reserved for particular community sectors. As ACMA submitted, while the community interest identified on MCR’s licence is “Religious – Islamic”, competing would-be applicants for a community broadcasting service could be expected to represent different community interests, including, potentially, other religious and non-religious community sectors. If the Broadcasting Services Act requires (as opposes to permits) such a process on a renewal application, it would have the practical effect of forcing a licence holder to defend its licence from all potential future applicants, representing any number of community interest groups. I agree with ACMA that such a requirement is potentially inconsistent with s 4(2)(a) of the Broadcasting Services Act which provides that Parliament intends broadcasting services to 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 financial and administrative burdens on providers of broadcasting services”, as well as s 5(1)(b)(i) which requires ACMA to use its functions to “produce regulatory arrangements that are stable and predictable”.

74    Community Television Sydney Limited v Australian Broadcasting Authority [2004] FCA 443; (2004) 136 FCR 316 is not authority to the contrary. That case concerned an allocation decision in respect of which s 84(2) provides that, in deciding whether to allocate a community broadcasting licence to an applicant or to one of a group of applicants, ACMA is to have regard to the matters in s 84(2)(a)–(f). As noted, s 91(2A) is in different terms (“if it were deciding whether to allocate the licence to the licensee”) and does not include reference to the preamble to s 84(2).

75    The statement by Sackville J in Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2007] FCA 2053 at [19] that “ACMA provided detailed written reasons for its decision. It made findings of fact under various headings, some of which correspond to the relevant sub-paragraphs of s 84(2) of the BS Act (these being matters ACMA was compelled to take into account by s 91(2A))” is obiter dicta. This follows from the fact that the grounds of judicial review in that case were denial of procedural fairness and legal unreasonableness: [3]. I do not consider that Sackville J’s statement at [19] “these being matters ACMA was compelled to take into account by s 91(2A)” is considered dicta. This is because: (a) the issue about the relationship between s 91(2A) and s 84(2) did not arise before Sackville J, (b) there is no suggestion that his Honour received submissions about the issue, and (c) the statement is a single line in brackets without any supporting reasoning in that part of his Honour’s reasoning summarising ACMA’s reasons for its decision. Justice Sackville’s statement is best characterised as a passing comment by a single judge. As such, it is neither binding nor persuasive. Having had the benefit of competing submissions about s 91(2A) specific to the issue, I am also satisfied that Sackville J’s obiter dicta in [19] is wrong.

76    This said, I do not suggest that in deciding whether or not to grant a renewal, ACMA is prohibited from considering whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee. While ACMA suggested this might be so, it is unnecessary to go so far and I do not discern such a prohibition from the statutory scheme. My point is that ACMA is not bound to consider whether a third party could provide a superior community broadcasting service to that provided and proposed to be provided by the licensee in deciding whether or not to renew a community broadcasting licence. If ACMA chooses to consider that issue, then that is a matter for ACMA. If it so chooses, it may also choose whether or not to conduct an investigation or a hearing into whether a licence should be renewed: s 91(3).

4.    ANIC’S STANDING/MATTER WITHIN FEDERAL JURISDICTION

77    Section 5(1) of the ADJR Act permits “a person who is aggrieved by a decision” to apply for an order for review. Under s 3(4), a person aggrieved by a decision includes a reference to a person whose interests are adversely affected by the decision.

78    I can say immediately that I do not accept that ANIC was in a position equivalent to the unsuccessful tenderer in Hawker Pacific Pty Ltd v Freeland [1983] FCA 381; (1983) 52 ALR 185. In that case, the applicant was specifically invited to tender for a contract and responded to the invitation. ANIC was not invited to do anything. It was merely informed by ACMA that if it wished to object it could so by a particular date. The money ANIC spent on its objection was not at ACMA’s invitation. It was at ANIC’s discretion.

79    I also accept ACMA’s basic proposition that under the Broadcasting Services Act, the statutory context and nature of the interest of an applicant for allocation are different from the statutory context and nature of the interest of an objector to a renewal application, even if the objector wishes itself to have a licence relating to the same community purpose as the incumbent licensee seeking renewal.

80    In the former case (an allocation decision), the interest of all applicants for allocation is equal and their interest in the allocation decision is direct and immediate, in that if the decision is made in favour of one applicant for allocation, the others are automatically refused the allocation. The community purposes (s 15(a)) or community interest (cl 9(2)(b) of Sch 2) that the competing applicants represent are at large. Under the Broadcasting Services Act, ACMA is also not bound to allocate a community broadcasting licence to any applicant: s 85.

81    This context explains, for example, Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority [2003] FCA 33; (2003) 25 FCR 560 which concerned the allocation (not the renewal) of a licence. In concluding that the predecessor to ACMA (the ABA) owed a duty of procedural fairness to applicants for the allocation of a licence, Wilcox J said at [32]:

The radio spectrum is a finite resource. There is not room for everybody who might wish to provide a service. Choices must be made between competing candidates, all of whom may be able to comply with the Act’s requirements. In such a situation, it seems only fair and sensible to require a public invitation to submit applications by a particular date and for the ABA to facilitate discussion about the merits of the various applications – including debate between competing applicants – before it makes a choice between those applicants.

82    The latter case (a renewal decision) such as the present is different. As discussed, ACMA’s functions in respect of the renewal are confined to a hypothetical allocation “to the licensee” under s 91(2A) and the preamble to s 84(2) does not apply. There is no requirement for ACMA to consider the position of another potential competing licensee for a new community broadcasting licence as part of a decision in respect of whether or not to renew the licence of the incumbent licensee. Further, insofar as an objector to a renewal might also wish to obtain a licence themselves, such an objector has a mere hope that if ACMA refuses the renewal, ACMA might allocate the licence to another entity, and a further hope that they might be the entity allocated the licence for which they would have to compete with all other entities who want the licence being offered for allocation (which would not necessarily be confined to the same community interest).

83    ACMA rightly had these matters in mind when it submitted that ANIC did not have standing as a person aggrieved by the renewal decision to challenge its renewal decision under the ADJR Act, particularly given that ANIC’s focus in support of its argument that it has standing was its wish and capacity to provide an alternative community broadcasting service for the community purpose or interest “Religious – Islamic”. ACMA’s submissions contrary to this proposition were not partisan or improper, but reflected its views about the coherent operation of the statutory scheme which it has the duty to manage. I was assisted by ACMA’s submissions about this matter and the statutory scheme as a whole.

84    However, there are two critical further considerations which need to be considered in the context of deciding the standing issue.

85    The first consideration deals with ACMA’s submission that a third party can have no interest of the required kind in respect of a renewal decision because, whether the licence is renewed or not renewed, the third party is in the same position as it is currently, as a non-licence holder. This submission may not give sufficient attention to the fact that a community broadcasting service is “provided for community purposes” (s 15(a)) and, under cl 9(2)(b) of Sch 2 to the Broadcasting Services Act, a licensee must “continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed”.

86    It follows that the effect of both an allocation decision and a renewal decision is the capacity for a licensee to provide (or continue to provide) a broadcast service representing the relevant community purpose or interest in the licence area. Once this fact is recognised, it is apparent that it is at least arguable that the interests of persons objecting to an allocation or renewal may be different from each other and, more relevantly, different from that of the public at large. A person or entity might have a special interest in the capacity of a licensee to provide (or continue to provide) a broadcast service representing the relevant community purpose or interest in the licence area not shared by the public at large or the community in the licence area. This special interest might be such that it can be said the person or entity is directly and immediately affected by an allocation decision or a renewal decision by reason only of the fact that such a decision enables the licensee to provide (or continue to provide) a broadcast service representing the relevant community purpose or interest in the licence area.

87    The second consideration is that the law relating to standing is not confined to a consideration of the subject matter, scope and purpose of the statute under which the decision is made. The concept of a person aggrieved depends on the interest affected by the decision. Characterising that interest involves a more expansive inquiry than consideration of the subject matter, scope and purpose of the statute under which the decision is made: Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394 at [41]–[42] per French CJ and Keane J, [66]–[68] per Hayne and Bell JJ, [91] per Gageler J. In so concluding in Argos, French CJ and Keane J said at [48]:

In summary, as Lockhart J said in the Right to Life Case [[1995] FCA 33; (1995) 56 FCR 50 at 65], “[t]he term a ‘person aggrieved’ is not a restrictive one; it is of very wide import.” The courts should not be astute to graft restrictions onto the general language of s 3B(1)(a) of the ADJR Act. It must be borne in mind that the ADJR Act is intended to facilitate judicial review of administrative decisions made under a wide range of statutes and having a wide range of practical effects upon members of the community. The availability of judicial review serves to promote the rule of law and to improve the quality of administrative decision‑making as well as vindicating the interests of persons affected in a practical way by administrative decision‑making. Accordingly, the scope of s 3B(1)(a) of the ADJR Act should not be artificially narrowed by glosses upon its broad language.

88    In Argos at [61] Hayne and Bell JJ said:

The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (“beyond” [per Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79]) its effect on the public at large.

89    Their Honours continued at [66]–[67]:

The ADJR Act provides for judicial review of decisions made under many different enactments. It should go without saying that regard must be had to the subject matter, scope and purpose of the ADJR Act in construing the words of s 3B(1)(a): “a person whose interests are adversely affected by the decision”. But content cannot be given to that expression, in its application to a particular decision, without regard to the subject matter, scope and purpose of the Act under which the decision was made and the proper construction of that Act. Only then can the relationship between the impugned decision and the interests said to be affected adversely be properly identified.

Often, perhaps very often, the connection between decision, interests and asserted effect will be obvious and evidently relevant. But that may not always be so, and in such a case it will be necessary to identify both the interest of the applicant relied on, and whether it is adversely affected by the decision, having regard to the proper construction and application of the Act under which the impugned decision was made.

90    The dividing line in Argos was between the parties who stood to have the profitability of their existing business diminished by a decision (who had standing) and the party who might lose money in the form of rent because of the diminution of the profitability of a party with the existing business (who did not have standing as the asserted interest was too indirect and remote).

91    Doubts have been expressed about the correctness of the decision in Ogle v Strickland [1987] FCA 50; (1987) 13 FCR 306 that a Christian minister of religion was a person aggrieved by a decision to allow the importation of an allegedly blasphemous film into Australia: see, for example, North Coast Environment Council Inc v Minister for Resources [1994] FCA 989; (1994) 55 FCR 492 in which Sackville J at 510 questioned the validity of a distinction between a “vocational interest in a set of values and an interest based on a deeply held but non-vocational commitment to those same values” on which the reasoning in Ogle v Strickland appears to have been based. In Right to Life Association (NSW) Inc v Secretary of Department of Human Services and Health [1995] FCA 33; (1995) 56 FCR 50 an organisation the objects of which related directly to the challenged decision (importation and trial of a drug to terminate early pregnancy) did not have standing based on its genuine and deeply held belief in the illegality and immorality of the drug, as no “intellectual, philosophical and emotional concern” would suffice to change the legal character of a person’s interest in a decision: at 69. See also Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [115] in which McHugh J said whether Ogle v Strickland was rightly decided is “debatable”.

92    But an association may have a special interest in a particular decision within the purview of its objects and activities resulting from “a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter”: Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27 at 42 per Stephen J. Examples include Australian Conservation Foundation v Minister for Resources [1989] FCA 794; (1989) 19 ALD 70, Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 2; (1995) 55 FCR 516, and Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35.

93    In the present case, ANIC’s submission to ACMA objecting to the renewal of MCR’s licence discloses that:

(1)    “ANIC is Australia’s Muslim peak body representing mainstream Islam and Muslims in Australia. ANIC is an umbrella organisation that represents Imams and Muslim scholars from all states and territories. It is the only national Australian organisation of Imams and Islamic scholars”;

(2)    “ANIC has over 195 Imams registered with it from across the country representing different ethnicities, Islamic organisations and Centres”;

(3)    “ANIC is recognised locally and internationally as the most senior and peak body for Muslims in Australia”;

(4)    the “vision of the ANIC is to be a leading body representing mainstream Islam in Australia”;

(5)    the “mission of ANIC is to provide religious leadership, rulings and services to the Muslim community of Australia”;

(6)    “ANIC also focuses on regulating and overseeing religious verdicts; these are in line with the Islamic tradition. The Grand Mufti of Australia works with ANIC together with qualified Imams from all Australian states”;

(7)    there are about 300,00 Muslims and 100 mosques in the Sydney area;

(8)    there are about 87 Imams (which I understand to mean an Islamic religious leader of a mosque or otherwise) who are members of ANIC;

(9)    there are over 76 Islamic organisations in the Sydney area associated with ANIC;

(10)    ANIC’s associated organisations, particularly the mosques, have thousands of members; and

(11)    ANIC and member Imams consider that ANIC represents mainstream Muslims in the Sydney area.

94    The renewal decision means that MCR will be able to continue to broadcast services focusing on its community purpose or community interest of “Religious – Islamic”. Even if the broadcasting bands were not a limited resource (which they are), I consider that ANIC has a special interest in the fact of MCR being able to continue to broadcast services focusing on its community purpose or community interest of “Religious – Islamic”. The very fact that by reason of the renewal MCR is able to continue to broadcast services focusing on its community purpose or community interest of “Religious – Islamic” in the Sydney licence area involves an effect on the interests of ANIC different from the public at large.

95    ANIC’s interest in the capacity of MCR to continue to broadcast for the community purpose or community interest “Religious – Islamic” is not merely intellectual, philosophical and emotional unless it is accepted that, at one level, the whole of life is merely intellectual, philosophical and emotional. As such, this is not a case of ANIC attempting to challenge a decision to which it takes a mere intellectual, philosophical or emotional objection based on the beliefs of its members. It is a case in which ANIC, as the body having 87 Imams leading mosques or who are Muslim religious leaders in the Sydney area, an area having about 100 mosques and 300,000 Muslims, and where (on the evidence) ANIC’s member Imams undoubtedly represent at least a material proportion of those Muslims on religious matters, contends that ACMA’s decision to permit MCR to continue broadcasting in relation to a “Religious – Islamic” community purpose or community interest adversely affects it and its members in a manner different from the public at large.

96    I consider that there is a material difference between: (a) a body (be it religious or not) seeking to challenge a decision which it considers is an affront to its religious, moral, ethical or other beliefs (as in Right to Life), and (b) a body (be it religious or not) seeking to challenge a decision which directly relates to a public service intended to be for the benefit of at least some of the very persons the body represents (relevantly, Muslims in the Sydney area).

97    In the former case ((a) above) the strength of a religious, moral, ethical or other belief can rightly be characterised as a mere intellectual, philosophical and emotional concern. The person or body is not directly affected in a relevant legal sense by a decision which does no more than conflict with its beliefs.

98    In the latter case ((b) above), the public service may or may not be provided in a manner appropriate to the persons the body represents. Provided the closeness of the connection between the decision and the body’s interest in it is sufficient, and the connection itself is not merely intellectual, philosophical and emotional, the body may well be a person aggrieved by the decision that the public service intended to benefit at least some of the persons the body represents (Muslims in the Sydney area) continues to be provided as a result of the renewal.

99    In the present case, it could hardly be said that in respect of the renewal decision, ANIC is a mere busybody or intermeddler. ANIC is not attempting to challenge any decision which happens to conflict with one or more of its beliefs. It is challenging a decision the effect of which directly impacts on the Muslims in Sydney who are (in part at least) represented in religious matters by ANIC’s 87 member Imams and affiliated organisations. The direct legal and practical effect of the renewal decision is that MCR will continue to be not only a broadcaster of “Religious – Islamic” community services in Sydney, but the sole broadcaster of “Religious – Islamic” community services in Sydney because it is common ground that there is only one such licence.

100    Accordingly, I consider that the particular community purpose or community interest that MCR represents (“Religious – Islamic” according to MCR’s licence) and which by cl 9(2)(b) of Sch 2 MCR must continue to represent, is obviously of special or particular interest to ANIC over and above the interest of any ordinary member of the public. ANIC is a person aggrieved by ACMA’s renewal decision and therefore has standing to challenge it under s 5(1) of the ADJR Act.

5.    PROCEDURAL FAIRNESS DUTY OF ACMA TO ANIC?

101    ANIC contended that ACMA owed it a duty to afford it procedural fairness in making the renewal decision as:

(1)    the renewal power involves the grant of an exclusive right to use of a public asset which is a finite resource (the radio broadcasting spectrum);

(2)    the renewal decision had the capacity to affect ANIC’s rights and interests and the interests of all persons within the relevant area of the licence: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [16];

(3)    the renewal decision had the capacity to affect ANIC’s rights and interests specifically, over and above the rights and interests of all persons within the relevant area of the licence and the public at large as ANIC was a potential competitor of MCR for the licence;

(4)    the requirement that notice of the application for renewal be published in the Gazette under s 90(2) of the Broadcasting Services Act discloses the legislature’s intention that the public be made aware of the application and the only logical purpose of so doing is to enable members of the public and potential competitors to make submissions about the renewal to ACMA;

(5)    the Broadcasting Services Act does not say that procedural fairness obligations are excluded;

(6)    the fact that under s 91(3) ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed goes no further than the section says – it does not oust any procedural fairness requirement otherwise applying; and

(7)    there is no other opportunity in the life cycle of a licence for a person dissatisfied with the service provided by a licensee (whether or not the person wishes to obtain the licence for themselves) to be heard on whether the licensee should continue. ACMA does not, for example, have the ability to cancel a licence during its currency after seeking or receiving representations about whether it should do so.

102    ANIC made other submissions relating to the content of the alleged duty of procedural fairness. ANIC said that for ACMA to discharge its procedural fairness duty, ACMA had to ensure ANIC was provided with:

(a)    all information that was to be before the decision maker should have been made publicly available (subject to appropriate redactions for personal information and information that can be properly classified as commercial-in-confidence); and

(b)    all members of the public should have had an appropriate opportunity to comment on any information that was to go before the decision-maker including – but not limited to – responses given to queries made by the ACMA of MCR.

103    The relevant principles are clear.

104    The “obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense, but extends to the exercise of a power which affects an interest or a privilege”: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [76] citing FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at [17] per Mason J (as his Honour then was).

105    The existence of a duty of procedural fairness involves asking if the exercise of the powers in question “is apt to affect adversely …the sufficient interest of a party” said to be affected by the exercise of power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [66]. As also stated in Plaintiff S10/2011 at [68] it remains the position that:

…the interest which tends to attract the protection of the principles of natural justice may be equated with the interest which, if affected, gives “standing” at common law (and, one might add, in equity), to seek a public law remedy. This relationship is illustrated by the point made in the Offshore Processing Case [Plaintiff M61/2010E at 359 [103]] that each plaintiff had a real interest in raising the questions to which the declaratory relief went. It may be added that the term “standing” is but “a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies” [Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 at 174 [15]]. Further, in federal jurisdiction, questions of standing are subsumed within the constitutional requirement of a “matter” [Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 at 35 [50]–[51], 68 [152], 99 [272]–[273]; Stellios, The Federal Judicature: Chapter III of the Constitution Commentary and Cases (2010) §7.7].

106    As summarised in Kong v Minister for Health [2014] FCAFC 149; (2014) 227 FCR 215 by Jacobson J:

(1)    “absent a clear statement of legislative intention to the contrary, the exercise of a power which is apt to affect adversely interests, falling short of legal rights, is conditioned upon observance of the principles of procedural fairness: Saeed [Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252] at [11]; Plaintiff S10/2011 at [66]”: [58];

(2)    “the question is one of construction of the statutory framework in order to determine whether the affected party has a sufficiently direct, or “real” interest: Plaintiff S10/2011 at [66], [68]; Offshore Processing Case [Plaintiff M61/2010E] at [76]”: [61];

(3)    “each case turns upon the particular statutory framework and the nature of the power in question. In order to attract an obligation of procedural fairness it must be a decision which directly affects the interests of the person: Kioa v West [[1985] HCA 81; (1985) 159 CLR 550] at 584 (Mason J); Offshore Processing Case [Plaintiff M61/2010E] at [76]…”: [62]; and

(4)    while the “circumstance that the plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest …” (emphasis added) [citing Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 at [48]], “the question is always one of determining whether there is a sufficient interest to give standing (and therefore an entitlement to procedural fairness) upon the true construction of the subject matter, scope and purpose of the particular statute”: [63]–[64].

107    It is also relevant that:

(1)    the principles of natural justice are excluded only by “plain words of necessary intendment”: Annetts v McCann at 598;

(2)    an intention to exclude natural justice requirements is not to be assumed or spelled out from “indirect references, uncertain inferences or equivocal considerations”: Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396;

(3)    the presumption “that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality”: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15]; and

(4)    according to Mason J in Kioa v West at 585, a conclusion that a decision-maker has an obligation of procedural fairness to a person in making a decision:

conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.

Justice Mason continued, saying:

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

108    Consistent with my reasoning above, I accept that aspects of the subject matter, scope and purpose of the Broadcasting Services Act seem to speak against the implication of a duty on the part of ACMA to give procedural fairness to a person, such as ANIC, being a body that wishes to both prevent another person from obtaining a renewal of a community broadcasting licence and to obtain a community broadcasting licence itself.

109    As noted, s 23 of the Broadcasting Services Act provides that ACMA, in performing functions under Pt 3 (which includes the function of preparing licence area plans under s 26), must consider, amongst other things, “social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally” (s 23(b)) and “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” (s 23(c)). As provided for in s 26(1), licence area plans are legislative instruments. The status of a licence area plan as a legislative instrument and the nature of such a plan, including the breadth of the matters ACMA must consider in making any such plan, are inconsistent with any implication of procedural fairness in ACMA’s exercise of this particular function. The same conclusion must apply to ACMA’s designation of a licence area for a community broadcasting service within a licence area plan under s 29(1) of the Broadcasting Services Act.

110    Further, as I have said, the scheme for renewal of community broadcasting licences may be contrasted with the scheme for their allocation. When a community broadcasting licence is to be allocated, ACMA must advertise, in a manner determined by ACMA, for applications from companies of the relevant type: s 80(1). The specific purpose of the advertisement is to elicit applications for the licence: s 80(2). There is no equivalent advertising provision in respect of renewals of licences. The requirement under s 90(2) to notify the fact of an application for renewal being made is not an equivalent provision. In allocating a licence, ACMA is bound to consider the matters in s 84(2)(a)–(f) in the context of allocation to “an applicant or to one of a group of applicants”. For the reasons already given, there is no equivalent provision in respect of the renewal of a licence given the terms of ss 91(1) and (2A).

111    It also cannot be the case that in deciding whether or not to renew a licence ACMA owes a duty of procedural fairness to every person within the licence area. Nothing in the Broadcasting Services Act supports the existence of such a duty. The posited duty would be owed to a potentially indeterminate number of people (as they moved into and out of the licence area) with a potentially endless range of competing and conflicting interests all capable of being characterised as “community purposes” within the meaning of s 15(a) of the Broadcasting Services Act. Discharge of any such duty would be impossible. It is also inconsistent with the fact that on a renewal application there is no requirement to advertise for applications for competing licensees either promoting the same or some different “community purpose”.

112    Further, ANIC is wrong that there is no opportunity in the life cycle of a licence for a person dissatisfied with the service provided by a licensee (whether or not the person wishes to obtain the licence for themselves) to be heard on whether the licensee should continue. A dissatisfied person is able to make a submission or complaint to ACMA at any time. While s 147 is confined to specific complaints, nothing in the Broadcasting Services Act prevents ACMA from considering other kinds of complaint or submission. ACMA can also inform itself as it thinks fit on any matter relevant to its functions: s 168. ACMA can also decide at any time to evaluate whether a licensee is a suitable person under s 83(2) whether as a result of an investigation or hearing or otherwise. If ACMA decides that s 83(2) applies to a licensee, then the licensee will be in breach of the standard condition in cl 9(2)(a) of Sch 2 (which requires the licensee to remain a suitable licensee). Further, s 143(1) empowers ACMA to suspend or cancel, amongst other things, a community broadcasting licence if the licensee has not complied with a notice under s 141 (in effect, a notice requiring action to ensure no breach of a condition) or has breached a condition of the licence.

113    These matters, I note, further reinforce the conclusions I have reached above that ACMA is not bound to consider a licensee’s suitability under s 83(2) or the position of a would-be competitor of a licensee when deciding a renewal application. Rather, ACMA can consider these matters at any time in the context of considering if the licensee continues to be in breach of any condition including the conditions in cl 9(2)(a) and (b) of Sch 2, respectively, that the licensee will remain a suitable licensee and will continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed.

114    If (as I consider to be the case) all people within the licence area do not have a sufficient interest potentially affected by a renewal decision, what is the criteria which places ANIC (or anyone else) in a different position? ANIC submitted that ACMA owed ANIC a duty of procedural fairness as a known potential competitor of MCR for a licence for a “community purpose” identified on the licence as “Religious – Islamic”. However, this confronts the practical problem that, conceived of as a potential competitor to MCR for a community broadcasting licence to represent the community purpose or interest of “Religious – Islamic”, ANIC has a mere hope that if ACMA refused the renewal, ANIC might have an opportunity to obtain a licence if ACMA then decided to allocate a licence for a “Religious – Islamic” community purpose. This is a tenuous basis upon which to found an interest capable of being adversely affected by a decision such as to attract a duty of procedural fairness by the decision-maker. This, moreover, is in circumstances where nothing in the statutory scheme requires ACMA, in the context of a renewal application, to seek either submissions about a renewal application or applications for the allocation of a licence to another person representing the same or a similar community interest.

115    These aspects of the statutory scheme are irreconcilable with ANIC having a sufficient interest to found an obligation of procedural fairness owed by ACMA to ANIC on a renewal application by reason of its status as a potential competitor to MCR as a licensee for the community purpose of interest “Religious – Islamic” in the Sydney area.

116    I should say here that I do not suggest that ACMA may not decide to conduct an investigation or a hearing into whether a licence should be renewed under s 91(3) or that, if it does so, ACMA may not be bound by some procedural fairness obligations in that regard (the scope of which I need not consider). Nor do I suggest that ACMA may not decide to seek submissions from the public about a particular renewal application by such means as ACMA sees fit. Equally, ACMA is not prohibited by the statutory scheme from considering and giving such weight as it sees fit to submissions it might have received about a renewal application. My conclusion thus far is confined to the proposition that, in the context of the subject matter, scope and purpose of the Broadcasting Services Act, ANIC’s status as a potential competitor to MCR as a licensee for the community purpose of interest “Religious – Islamic” in the Sydney area does not found an obligation by ACMA to give ANIC procedural fairness in deciding whether or not to renew MCR’s licence.

117    Further, I do not accept that ANIC’s course of dealing with ACMA (through ANIC’s lawyers) could found any procedural fairness obligation. The existence of any such obligation must be found by reference to the subject matter, scope and purpose of the Broadcasting Services Act, and not in any particular course of dealing ACMA may have had with ANIC. If it were otherwise, a particularly energetic busybody or intermeddler could place itself in the position of being owed a duty of procedural fairness by ACMA by reason only of its own efforts.

118    For example, ANIC referred to an “undertaking” by MCR to ACMA to provide it with a copy of MCR’s renewal application. Contrary to ANIC’s submissions, there was no “undertaking” by MCR to ACMA to provide ANIC with a copy of MCR’s renewal application. ACMA said to MCR on 31 March 2020 that “community broadcasting licensees should make available a copy of their renewal application to any member of the licence area community who wishes to look at it”. This information was general, applying to the public at large within the licence area, and had nothing specifically to do with ANIC.

119    The fact that ANIC wrote numerous letters and received responses to them is immaterial to the subject matter, scope and purpose of the Broadcasting Services Act. In any event, on 23 October 2020, ACMA responded to ANIC’s requests for assurances that it would be provided with a copy of any renewal application by stating that any renewal application may contain personal or confidential information, but that in accordance with ACMA’s usual practice it had asked MCR to make available its renewal application to any member of the community in the licence area who wished to look at it. Again, this response had nothing specifically to do with ANIC. Moreover, consistent with my conclusions, ACMA said to ANIC that it was “entitled, as are any other members of the public, to provide information to ACMA about any concerns it may have about the service currently being provided by MCR”.

120    Despite ACMA’s answer, ANIC sought further assurances on 22 December 2020 while also confirming its intention to oppose the renewal of the licence. ACMA responded that it had asked MCR to make available a copy of their renewal application to any member of the licence area community who wishes to look at it, but that ACMA “does not monitor or require any response from community broadcasters in relation to those notifications”.

121    ANIC then corresponded directly with MCR on 13 January 2021 seeking a copy of the renewal application. In a further communication, ANIC rejected as insufficient MCR’s confirmation that it would place the renewal application on its website.

122    ACMA wrote to MCR on 22 January 2021 seeking confirmation that MCR would make a copy of its renewal application available to any member of the community in the licence area who wished to see it on the basis that it was “entirely reasonable to remove sensitive, personal private, or confidential information from what is made available, but the ACMA would expect that the substance of your application to be accessible”. In so doing, ACMA referred to standard condition in Sch 2, cl 9(2)(c) that the licensee will encourage members of the community that it serves to participate in its providing the service. Again, this reinforces the general nature of ACMA’s request to MCR as applying to all persons within the licence area, and not specifically to ANIC as a person wishing ACMA to refuse the renewal and instead grant a licence to it.

123    Further correspondence ensued in which MCR confirmed that it would be placing the renewal application on its website excluding commercial in confidence, personal, private and confidential information and ANIC continued to express its dissatisfaction with this course. In its letter of 2 February 2021 ACMA reiterated to ANIC’s lawyers that ANIC was entitled, as were any other members of the public, to provide information to ACMA about any concerns it may have about the service currently being provided by MCR and if ANIC wished to provide information relevant to its opposition to MCR’s renewal application, ANIC should so by 5 March 2021. In so doing ACMA was not inviting ANIC to oppose the renewal application or suggesting it considered ANIC was in any position different from any other member of the public. In these circumstances, the fact that ACMA refused a request by ANIC for an extension of time to lodge information in support of its opposition to the renewal is immaterial. ANIC continued to protest to ACMA.

124    MCR placed a version of its renewal application on its website on 22 February 2021. That version (to which ANIC and the public had access) is 154 pages. The renewal application submitted to ACMA is about 660 pages. As part of its interlocutory application ANIC served ACMA with an affidavit including the website version of the renewal application on 3 March 2021. The website version, to which ANIC had access, does not disclose the redactions made to it (see further below).

125    None of these circumstances give rise to a duty on the part of ACMA to give procedural fairness to ANIC. ANIC could not, by its own actions, manoeuvre itself into a position where its interests were materially different from the interests of any other person in the licence area, at least not from the perspective of the operation of the Broadcasting Services Act.

126    I return then to the fact that a community broadcasting service is “provided for community purposes” (s 15(a)) and, under cl 9(2)(b) of Sch 2 to the Broadcasting Services Act, a licensee must “continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed”. These provisions, I infer, explain why the ACMA-approved form of licence, reflecting the application requirements in ss 80(3) and 90(1), contains an entry “Community interest” against which “Religious – Islamic” appears in the licence in dispute in this case.

127    The fact that I have concluded ANIC has standing as a result of s 15(a) and cl 9(2)(b) of Sch 2 to the Broadcasting Services Act to challenge ACMA’s renewal decision tends to suggest that there is a duty of procedural fairness which ACMA owes to ANIC in making the decision: Plaintiff S10/2011 at [68], Kong at [64]. Consistent with my reasoning above, I consider that ANIC does have a real, direct and sufficient interest in the renewal decision to support the conclusion that ACMA owed ANIC a duty of procedural fairness in making the renewal decision given: (a) the renewal decision enabled MCR to continue to provide a community service to Muslims in the Sydney area by reference to the community interest for which the licence was granted, “Religious – Islamic”, and (b) ANIC, by reason of its existence, membership, and the interests and people it represents, was directly adversely affected by MCR being able to continue to provide that service, whether or not ANIC was or is capable of providing that service itself.

128    It could not be said that any duty of procedural fairness in respect of a renewal decision would be inconsistent with the statutory scheme. Nor could it be said that the considerations ACMA may or must take into account on a renewal application (depending on which discretion ACMA is exercising – to refuse or to grant the renewal) are so wide that any duty of procedural fairness would be impractical. The mandatory relevant considerations on refusal of a renewal application under s 84(2)(a)–(f) are focused on the needs of the community in the licence area and the capacity of the licensee to meet those needs. The needs of the community in the licence area in respect of the particular community purpose or interest to which the licence relates (entrenched by cl 9(2)(b) of Sch 2) are the kinds of matters where ACMA could be assisted by external input.

129    The fact that the particular community purpose or interest to which the licence relates is entrenched by cl 9(2)(b) of Sch 2 is significant in my conclusion that there is a duty of procedural fairness. For example, on an allocation decision, ACMA might choose to advertise an allocation for any community purpose in an area. Obligations of procedural fairness cannot practically operate at large, but can practically operate in respect of, for example, a class of persons who make applications for the licence allocation. In the case of a renewal application, the particular community purpose or interest to which the licence relates is already defined. The fact it will be renewed only for the same particular community purpose or interest narrows the potentially relevant class to persons with a special interest in that particular community purpose or interest in the licence area.

130    Further, the fact that ACMA must notify the making of a renewal application in the Gazette under s 90(2) is relevant. A person with a sufficient interest in the community purpose or interest to which the licence relates will be able to ascertain the fact of renewal from the notice in the Gazette. This will enable such a person to make a submission to ACMA about the renewal.

131    As ACMA cannot owe a duty of procedural fairness to persons with a special interest in that particular community purpose or interest in the licence area who ACMA does not know about, this practical reality further confines the relevant class of persons who might be owed such a duty. On this basis I would identify the relevant class to whom ACMA owes a duty of procedural fairness on a renewal decision as persons who have a sufficient interest in the renewal decision to give them standing to challenge the decision to renew the licence (as discussed above) and have given ACMA clear and timely notice of their intention to make a submission objecting to the renewal of the licence based on their sufficient interest in the renewal decision.

132    What is the content of the duty of procedural fairness ACMA owes to persons who both have a sufficient interest in the renewal decision to give them standing to challenge the decision to renew the licence (as discussed above) and have given ACMA clear and timely notice of their intention to make a submission objecting to the renewal of the licence based on their sufficient interest in the renewal decision? In determining this, it is necessary again to consider the subject matter, scope and purpose of the statute and the nature of the interest of the relevant class of persons.

133    Again, I consider it must be recognised that the position of a person such as ANIC is not in a position equivalent to that of MCR. MCR has an existing legal right (the licence). ANIC does not have an existing legal right in the form of the licence. ANIC stands to be affected by a renewal because of its special interest in the community purpose or community interest to which the licence relates under s 15(a) and cl 9(2)(b) of Sch 2 of the Broadcasting Services Act. Given this, I do not accept that the content of the duty of procedural fairness ACMA owed to ANIC included making all information before ACMA about the renewal publicly available or ensuring that every member of the public had an opportunity to comment on any information that was to go before ACMA in respect of the renewal.

134    The duty ANIC proposes, the effect of which would be to give ANIC the last word about any renewal application based on all information before ACMA when it makes the decision, is inconsistent with ss 168 and 169 of the Broadcasting Services Act. If, as is the case, ACMA can consult as it sees fit under s 168 and can take into account “such other matters as it considers relevant, including the knowledge and experience of the members” under s 169, it cannot be the case that ACMA must disclose to a person such as ANIC all material before ACMA. Nor could such a duty be reconciled with ACMA informing itself in the manner ACMA considers the “quickest and most economical in the circumstances” (s 168(2)(a)). The duty of procedural fairness ANIC seeks to impose would be iterative, with ANIC being entitled to make a final submission on any final submission made by any other person including MCR. That is unworkable and in direct conflict with ss 168 and 169.

135    Accordingly, I consider ACMA’s duty to be far more confined than ANIC proposes.

136    In my view, where the duty is owed, ACMA discharges its duty to give that person procedural fairness by providing that person with a reasonable opportunity to make a submission about the renewal and considering that submission to the extent it is relevant to the decision-making process.

137    I do not accept that ACMA must ensure that the person has any information that ACMA will consider in making the renewal decision. Nor do I accept that procedural fairness requires that person to be provided with a copy of the application for renewal. I reach this conclusion because, as discussed:

(1)    the relevant interest of the person in the renewal decision (being the source of their standing and the duty of procedural fairness ACMA owes to them) is based on the person’s special interest in the community purpose or interest to which the licence relates;

(2)    the relevant interest of the person in the renewal decision is not based on the person being a potential competitor to the incumbent licensee for the licence for the reasons already given, being:

(a)    the application is for renewal, not allocation;

(b)    the renewal process involves ACMA in a hypothetical assessment of the allocation of the licence to the licensee alone (not to any third party);

(c)    ACMA is not bound to consider if a third party would be better placed to provide the particular community purpose of interest to which the licence relates compared to the incumbent licensee;

(d)    any person who objects to the renewal of a licence has a mere hope that the licence may be refused and, if so, a mere hope that ACMA may allocate a licence for the same community purpose or interest for which the objector can apply; and

(e)    this interest of the person is too indirect, consequential and remote to found a relevant interest sufficient to give the person standing and a right of procedural fairness;

(3)    accordingly, any submission that the person can make to ACMA which is relevant to ACMA’s decision-making process is based on the person’s special interest in the community purpose or interest to which the licence relates;

(4)    the person will already have available to them:

(a)    knowledge and material relevant to their own special interest in the community purpose or interest to which the licence relates; and

(b)    knowledge of the identity of the incumbent licensee and why the person considers their own special interest in the community purpose or interest to which the licence relates means ACMA should consider their submission on the renewal application; and

(5)    accordingly, the person is not dependent on any other information being made available to them to make a meaningful and informed submission to ACMA about the renewal application based on the person’s relevant interest.

138    I consider it misconceived to characterise the licence application as involving information that is credible, relevant and adverse to ANIC’s interests. ANIC has no interest over and above its special interest in the community purpose or interest the subject of the licence. ANIC’s legally relevant interest is satisfied by ensuring that it had a reasonable opportunity to inform ACMA of its position as a holder of that special interest. ANIC’s special interest would not be “defeated” by a renewal of the licence to MCR. All that will have been defeated would be ANIC’s mere hope of replacing MCR if the licence renewal was refused and ACMA called for a new allocation relating to the same community purpose or interest.

139    These conclusions are further reinforced by the fact that the content of the duty of procedural fairness must accord with and serve the statutory scheme, and the ultimate object of the duty is practical fairness. No doubt ANIC would have liked to have seen the entirety of MCR’s licence renewal application and all information before ACMA about the renewal so it could undertake a forensic dissection of all information favourable to MCR. But there is a difference between what a person such as ANIC would like to see and do and ACMA’s duty of procedural fairness to ANIC.

140    In this regard, it must be accepted that the Broadcasting Services Act: (a) requires only that the fact of a renewal application be notified in the Gazette, (b) does not require ACMA to otherwise advertise and call for submissions about the renewal application, (c) does not expressly require ACMA to have regard to any submissions about the application, (d) does not provide a time period within which ACMA must accept submissions and must not make a decision about the renewal application (to enable consideration of the submissions), and (e) does not require ACMA to notify the content of any renewal application.

141    The content of any implied duty of procedural fairness must accord with these statutory characteristics. On this basis, the existence and flexible content of the duty of procedural fairness should be moulded in the manner I have indicated – that the duty is to ensure only that a person with a special interest who has clearly notified ACMA it wishes to make a submission about a renewal application in a timely manner is given a reasonable opportunity to provide that submission to ACMA and, to the extent the submission provides information that is relevant to the matters ACMA must consider in making the renewal application, ACMA takes that information into account.

142    It follows that ANIC’s case that it was denied procedural fairness by ACMA because it was not provided with a full copy of MCR’s renewal application (subject only to appropriate redactions for personal and commercial in confidence information) and/or the responses given by MCR and/or the Department of Home Affairs to ACMA’s questions and/or any other material that ACMA considered in making the renewal decision must fail.

143    Even if this is incorrect at the level of principle, the lack of practical injustice to ANIC resulting from the course of events in the present case is exposed by the evidence.

144    ANIC’s submission to ACMA demonstrates that it did possess knowledge and material relevant to its own special interest in the community purpose or interest to which the licence relates. ANIC was able to make a reasoned and informed submission to ACMA against the renewal of MCR’s licence without having had access to the material it contends that it had a right to see before making its submission. ANIC’s submission objected to the renewal on the ground that MCR is a creation of a Muslim fringe sect, Al-Ahbash, which is unrepresentative of Sydney’s 300,000 Muslims as: (a) Al-Ahbash members constitute a tiny minority of Sydney Muslims, (b) Al-Ahbash is hostile to and intolerant of all other Muslims, (c) a broadcasting service by Al-Ahbash is therefore profoundly unattractive to all Muslims except Al-Ahbash members, and (d) Al-Ahbash cloaks its true positions by a form of “double discourse” designed to appeal to Westerners. ANIC also submitted that it could provide Sydney’s Muslims with a far more representative community broadcasting service than MCR and was willing and able to do so.

145    ANIC supported its submission on a number of bases. In particular, without any apparent reference to MCR’s licence application, ANIC submitted that:

(1)    the licensee MCR is a subsidiary of the Islamic Charitable Projects Association (ICPA), also known as Al-Ahbash or Ahbash. ANIC said this was proved as:

(a)    the website of ICPA shows MCR as one of the service providers of ICPA;

(b)    the website of ICPA shows that the organisation is founded on the teachings of the Ethiopian Muslim cleric Sheikh Abdullah Al-Harari, the founder of Al-Ahbash;

(c)    ICPA Australia is part of an international group preaching the beliefs of Sheikh Abdullah Al-Harari; and

(d)    ICPA’s website makes it clear that it created MCR in order to broadcast its beliefs;

(2)    MCR represents only a tiny proportion of Sydney Muslims as:

(a)    there are perhaps a few thousand members of Al-Ahbash in Australia; they represent 1.6 per cent of the over 600,000 Australian Muslims recorded by the 2016 census; and

(b)    assuming half of the Al-Ahbash members live in Sydney, they represent 1.6 per cent of the approximately 300,000 Muslims in Sydney, thus being a tiny minority;

(c)    “[t]here are about 100 mosques in the Sydney area. None is associated with Ahbash. ANIC has about 87 member Imams in the Sydney area … There is only one Imam associated with Ahbash”; and

(3)    Al-Ahbash is hostile to and intolerant of other Muslims and cloaks its hostility to and intolerance of other Muslims by a “double discourse” intended to appeal to Westerners by apparent liberalism on social and gender issues. This was established by:

(a)    academic literature identifying that Al-Ahbash claims to support the emancipation of women and laicism and to oppose the “fundamentalists”, but within Muslim communities carries on “an extremely intransigent and closed discourse, often treating most of the principal Muslim ulama as kuffar (by which they mean ‘unbelievers’, ‘impious people’)”: Tariq Ramadan, Western Muslims and the Future of Islam (Oxford University Press, 2004);

(b)    Al-Ahbash’s approach to doctrinal issues is “hostile and usually violent”, with the “entire discourse about ethics and social behaviour is based on this distinction between ‘Muslims’ (only the Ahbash) and others (the kuffar, understood by the members of this sect as ‘unbelievers’ in the worst possible sense). The founder … pronounced judicial opinions (fatawa) for his disciples in which he maintained that lying, stealing or even killing a kafi, an unbeliever, are minor sins”: Tariq Ramadan, Western Muslims and the Future of Islam (Oxford University Press, 2004);

(c)    “ICPA has claimed it is affiliated with Al Azhar University, a well-respected university in Egypt; the claim has been rejected by Al Azhar. The Former Grand Mufti of Egypt Ali Gomaa, a highly-regarded mainstream Muslim scholar issued a fatwa describing the Ahbash as “deviant and corrupt”. The Former Grand Mufti of Saudi Arabia, Abd al Aziz ibn Baz, also declared the Ahbash a “deviant faction”. ANIC has described it as a fringe cult organisation that preaches hate of and intolerance towards anyone who does not adhere to its doctrines”;

(d)    “[t]he Ahbash is also known to have strong affiliations with the Syrian government’s Assad Regime, in particular with Syrian Intelligence. There are reports implicating it in the assassination of the former Prime Minister of Lebanon, Rafic Hariri, in Beirut in 2005”;

(e)    “research was conducted on the past 24 months exploring the different religious leaders and Imams hosted by 2mfm. The Imams affiliated to the Ahbash are predominantly from an Arab background that not only misrepresent the mainstream Muslim community in Sydney but also the diverse ethnicity of the Muslim community”;

(f)    a petition against the renewal of MCR’s licence signed by over 5200 people; and

(g)    numerous letters from Muslim community organisations and ANIC NSW member Imams opposing renewal of the licence. Each letter is in similar terms stating that it “is well-known to Sydney Muslims that MCR is associated with the Al-Ahbash sect of the Islamic religion. The sect is based on beliefs not accepted by mainstream and majority Muslins globally, including Muslins in Australia and in the Sydney area”.

146    ANIC’s references to MCR’s licence renewal application (which it had in redacted form only – a source of separate complaint discussed below) did no more than support its fundamental contention that MCR was affiliated with the Al-Ahbash sect of the Islamic religion which was unrepresentative of mainstream Muslims in Sydney. As noted, however, the supporting letters themselves said that “is well-known to Sydney Muslims that MCR is associated with the Al- Ahbash sect of the Islamic religion. The sect is based on beliefs not accepted by mainstream and majority Muslins globally, including Muslins in Australia and in the Sydney area”. In ANIC’s submission to ACMA, aspects of MCR’s licence application did nothing more than add examples of what ANIC had already said was well-known by Muslims and had been established to be true.

147    In his affidavit, Mr Shady Alsuleiman, President of ANIC and of the United Muslims of Australia, the first Australian-born Imam who is recognised as one of the 500 most influential Muslims around the world by an independent study conducted by The Royal Islamic Strategic Studies Centre in Amman Jordan, explained the unfairness to ANIC from not having had access to the whole of MCR’s renewal application. Mr Alsuleiman said that having compared the version of the application MCR placed on its website with the full version discovered in this proceeding, it was apparent that a significant amount of the excluded information “demonstrates a close association between MCR and the ICPA and its associated organisations”. Mr Alsuleiman continued to provide numerous examples, all to the following general effect:

(1)    “[t]here are references to the Multicultural Mawlid Festival on pages 8, 94, 120, 167, 183, 222, 285, 311, 319, 320. Although all Muslims celebrate Mawlid, the Multicultural Mawlid Festival is an event that is closely associated with ICPA. It is an event referred to on ICPA’s website as an “affiliate”. If the references to this event had been included in the Website Application, ANIC would have made the submission that these references demonstrate the close association of MCR with ICPA, and that as a result, MCR was not representative of the Sydney Muslim community to be serviced by the licence”;

(2)    “…If the references to Darulfatwa had been included in the Website Application, ANIC would have made the submission that these references (and, in particular, the fact that MCR’s internal disputes would be referred to Darulfatwa) demonstrated the close association of MCR with ICPA, and that as such, MCR was not representative of the Sydney Muslim community to be serviced by the licence and that membership of MCR was, effectively, closed to Muslims who are not members of Al-Ahbash”;

(3)    “…If the references to MWWA had been included in the Website Application, ANIC would have made the submission that this demonstrates the close association of MCR with ICPA, and that as a result, that MCR was not representative of the Sydney Muslim community to be serviced by the licence”;

(4)    “[t]here is a reference to ICPA on page 85. If this reference had been included in the Website Application, ANIC would have relied upon the reference as further evidence demonstrating the close association of MCR with ICPA, and that as a result, that MCR was not representative of the Sydney Muslim community to be serviced by the licence”; and

(5)    “ [i]f the references to these scout groups had been included in the Website Application, ANIC would have made the submission that this demonstrates the close association of MCR with ICPA, and that as a result, that MCR was not representative of the Sydney Muslim community to be serviced by the licence”.

148    Accordingly, it is apparent that the MCR application did not inform ANIC about anything it did not already know. This is consistent with the legal foundation of ANIC’s standing and right to procedural fairness – that its relevant interest is confined to its special interest in the community purpose or interest to which the licence relates, about which it is well-placed to make a submission if it wishes to do so based on its own knowledge and sources of information, and irrespective of the content of the renewal application or any other source of information.

149    I reach the same conclusions about the information ACMA sought and received from the Department of Home Affairs and the additional information it received from MCR. ACMA had no duty to provide that material to ANIC to ensure ANIC could have the last word about the renewal application. If any person was entitled to the last word before ACMA made a decision it would be MCR, the person with an existing interest which it stood to lose if ACMA did not renew the licence based on adverse information ACMA had obtained from third parties.

150    ACMA’s decision refers to the further submission made by MCR on 20 April 2021 in response to ANIC’s submission. ACMA’s decision records MCR as saying that it was not a subsidiary of ICPA but “was founded by the Islamic Charity Projects Association (ICPA) in 2001” and that “ICPA are one of many communities who participate in 2MFM”. MCR also said its own directors were from diverse communities and “is sensitive to all listeners, the various Schools of thought in Islam and other religions”.

151    ANIC had already made its contrary position clear to ACMA that MCR was not “sensitive to all listeners, the various Schools of thought in Islam and other religions”. If ANIC’s proposed duty is accepted (which would give it the last word), there would be a never-ending cycle of contention and counter-contention between ANIC and MCR. That circumstance is irreconcilable with the statutory scheme of the Broadcasting Services Act.

152    ACMA’s reasons for decision also refer to the information received from the Department of Home Affairs. This information was that: (a) no single organisation exhaustively represents Muslim Australians in all their ethnic and denominational diversity, including in Sydney, (b) ICPA delivers a diverse and prominent range of religious and social programs that includes MCR, (c) ICPA is openly affiliated with a Sufi sect of Islam based in Lebanon called the Al-Ahbash, (d) in 2004, ICPA founded the Islamic High Council of Australia, also known as Darulfatwa, as a “moderate” voice of theological leadership, to counterbalance the more “conservative” views of other Islamic bodies, (e) ICPA and Darulfatwa are not affiliated with, and have been publicly critical of, the Australian Federation of Islamic Councils (AFIC), the Australian National Imams Council (ANIC), and the Lebanese Muslim Association (LMA). ICPA and Darulfatwa have publicly accused these organisations of holding extremist ideologies and excluding moderate and diverse viewpoints. AFIC and ANIC have also claimed that ICPA and Darulfatwa are an obscure fringe group with their own extremist ideologies, and (f) the Department of Home Affairs, through its Community Liaison Officers (CLOs), engages with all Islamic associations on an equal footing, without prejudice as to their sectarian membership or theological views.

153    Again, ANIC’s position that it was entitled to make a further submission in response to the information from the Department of Home Affairs is impractical. Had ANIC been entitled to do so, ACMA could have chosen to obtain still further information in response from the Department of Home Affairs and MCR. The never-ending iteration of contention and counter-contention irreconcilable with the statutory scheme would be in play.

154    For these reasons, I consider that ANIC received from ACMA all the procedural fairness to which it had a right. It knew about the renewal application having been made from the notice of that fact in the Gazette. It informed ACMA it wished to make a submission in opposition to the renewal. It was given a reasonable opportunity by ACMA to make a submission. ACMA gave detailed consideration to ANIC’s submission in deciding whether or not to renew MCR’s licence (see below). There was also no practical injustice or unfairness to ANIC from the course of events in which it did not obtain access to the unredacted version of MCR’s renewal application or information that ACMA obtained from the Department of Home Affairs or otherwise.

155    ANIC’s claims of denial of procedural fairness must fail for these reasons.

6.    RELEVANT CONSIDERATIONS

6.1    Suitability of MCR

156    For the reasons already given I do not accept that ACMA was bound to consider the application of s 83(2) (the suitability criteria) to MCR when making the renewal decision.

157    If this conclusion is incorrect, then I do not accept ANIC’s further argument that ACMA failed to consider the matters in s 83(3)(b) and (d) (respectively, the company’s record in situations requiring trust and candour and the record in situations requiring trust and candour of the chief executive and each director and secretary of the applicant).

158    In making its decision, ACMA’s reasons record that it considered that “[i]n assessing a renewal application the ACMA must first ask whether the applicant is a suitable licensee under subsection 91(2) and, if so, whether it should exercise its discretion to refuse to renew the licence, having regard to the statutory criteria as contemplated by subsection 91(2A)”: [6.1]. As I have said, in my view, this is incorrect. However, there can be no doubt that in this case ACMA was of the view that it should decide if s 83(2) applied to MCR in the course of its renewal decision. On this basis, I consider that a material legal error by ACMA in deciding the s 83(2) issue is capable of vitiating ACMA’s renewal decision.

159    ACMA decided the s 83(2) issue as follows:

Licensee suitability

6.2     By subsection 91(2), the ACMA must not renew a community broadcasting licence where the ACMA decides the applicant is a not a suitable community broadcasting licensee under subection 83(2) of the BSA. A person is not a suitable licensee if the ACMA is satisfied that allowing the licensee to continue to provide broadcasting services under a community broadcasting licence would lead to a significant risk of an offence against the BSA, a breach of a civil penalty provision in the BSA or a breach of licence conditions.

6.3    There is no evidence or other information to suggest that MCR is not a suitable licensee on these grounds and therefore subsection 91(2) does not require the ACMA to refuse the renewal application.

160    ANIC’s complaint involves these propositions:

(1)    MCR systematically doctored the version of its renewal application made available to ANIC by removing material that would have assisted ANIC to oppose renewal of the licence, and concealed the fact that it had done this;

(2)    by its conduct in (a) above, MCR demonstrated that it lacked candour and was untrustworthy;

(3)    ACMA was on notice of this; and

(4)    ACMA did not take into account MCR’s conduct in (a) above and resulting lack of candour and untrustworthiness in (b) above, despite knowing about it.

161    The problem for ANIC is that propositions (1), (2) and (3) are not established.

162    The relevant fact is that MCR did not just redact the version of its application published on its website to which ANIC had access by masking the parts said to involve personal or confidential information. It manipulated the application so no one could see what information had been removed. It did so, as ANIC described it, by:

(a)    Removing all page numbers from the Website Version, so that readers could not know that pages had been removed or how many.

(b)    Closing up text where it had removed paragraphs from pages of text, so the removal of text could not be detected.

(c)    Closing up tables from which multiple rows had been removed, so the removal of rows could not be detected.

(d)    Removing from text cross-references to text that had been removed elsewhere, so the removal of the material that was cross-referenced could not be detected.

(e)    Where a series of tables were removed, changing the numbering of the tables following the deletion so that the numbering of the tables following the deletion was sequential with those before the deletion, with the result that the removal of the tables could not be detected.

(f)    Where a series of tables had been removed, changing the textual references to the tables following the deletion so that the numbering of the tables in the text was sequential, with the result that the removal of the tables could not be detected.

(g)    Removing one of a number of photographs on a page and stretching the remaining photographs to fill the resulting space, with the result that removal of the photograph could not be detected.

163    The respondents did not dispute this description. Nor did they dispute that the effect of what MCR did was to remove material that linked MCR to ICPA. Nor did they dispute that the process of manipulation of the renewal application for publication on MCR’s website, as ANIC submitted, would have involved an enormous amount of work.

164    According to ANIC, the “only available inference arising from MCR’s disguised deletion of the announcements was that it was intended to deprive ANIC of material that it could use to oppose MCR’s renewal application”. ANIC said that it squarely pleaded in paragraph 29 of its second further amended originating application that “MCR engaged in a systematic and sustained process of doctoring the Renewal Application in order to lessen the effectiveness of ANIC’s opposition to renewal of the Licence” thereby demonstrating its lack of candour and untrustworthiness, yet MCR had called no evidence to explain what it had done or why it had done it. This makes it easier, said ANIC, to infer that MCR was deliberately being misleading about its renewal application, knew it was doing the wrong thing, and took steps to cover its tracks (citing, in support, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

165    On my conclusions above, ANIC had no legal right to see the renewal application.

166    Further, nothing in the statutory scheme provides support to ANIC’s submissions that ACMA was bound to perform some form of investigative function by: (a) comparing the full version of the renewal application ACMA held to the version MCR had published on MCR’s website, (b) inferring from that comparison that MCR had deliberately sought to conceal its links with ICPA from ANIC and ACMA, including by covering its tracks in the way it redacted information, (c) inferring that MCR, as a result, never intended to provide ANIC with access to its renewal application (redacted only by removing personal or commercial in confidence information), as MCR had told ACMA it would, and (d) concluding that MCR lacked candour and was untrustworthy as result within the meaning of s 83(2)(b) and (d).

167    It must be recalled that in deciding a renewal application ACMA is not bound to conduct any form of investigation: s 91(3). Further, if it decides to evaluate the suitability of an applicant under s 83(2) on a renewal application (which is a matter for ACMA alone to decide if it wishes or not), ACMA’s obligation is to ascertain if it is satisfied that allowing MCR to continue to broadcast would lead to a significant risk of an offence, a breach of a civil penalty provision, or a breach of a licence condition. In so ascertaining, ACMA is to take into account the “company’s record in situations requiring trust and candour” and the “record in situations requiring trust and candour of” the chief executive and each director and secretary of the applicant. Effect must be given to the word “record”. The “record” indicates that ACMA is to consider the information available to it relating to these matters. It is not bound to conduct any form of investigation about these matters. It is certainly not bound to undertake the kind of exercise that ANIC envisages in comparing two versions of a document to ascertain if MCR did what it said it would do. Indeed, ACMA specifically informed ANIC that it did “not monitor or require any response from community broadcasters in relation to those notifications” (that is, the making available of a copy of a renewal application).

168    It is not to the point that ACMA must have known that the version MCR published on the website was incomplete. I accept that ACMA must have known this, because it accepted that MCR could “remove sensitive, personal private, or confidential information from what is made available” and ANIC also submitted to ACMA that information was missing from the renewal application.

169    Nothing in the Broadcasting Services Act suggests ACMA had any legal duty to ensure that MCR made its renewal application available either at all or to ACMA’s satisfaction.

170    Moreover, and contrary to ANIC’s case, minds can reasonably differ about what constitutes “sensitive, personal private, or confidential information”. It could not be inferred that MCR did not believe it was redacting only “sensitive, personal private, or confidential information”, no matter how liberal a hand it had taken to the redactions. Nor does MCR’s manipulation of the renewal application support an inference of any deliberately misleading conduct on its part. An equally likely inference is that MCR ensured that its redactions could not be seen because it did not wish to have its renewal application delayed by an endless debate with ANIC and ACMA about what it could and could not redact from the version of the renewal application made available to the public on MCR’s website. This is particularly so given that MCR in its response to ANIC’s submission had informed ACMA that it was founded by ICPA in 2001 and ICPA was one of “many communities who participate in 2MFM”.

171    In these circumstances, Jones v Dunkel type reasoning does not assist ANIC. It cannot be inferred that MCR feared calling the person who undertook or directed the undertaking of the redactions to the licence application. Even if that inference were to be drawn, it would not enable mere suspicion (by ANIC) of misleading conduct by MCR to be treated as an inference. ANIC’s suspicion, no matter how strongly felt, did not call for MCR to adduce evidence to allay the suspicion.

172    Ultimately, the determinative matter is that in deciding the application of s 83(2), ACMA only had to consider (relevantly) the company’s record in situations requiring trust and candour and the record in situations requiring trust and candour of the chief executive and each director and secretary of the applicant. In discharging that obligation, ACMA did not have to undertake any form of investigation. It did not have to compare two versions of the renewal application it had available to it. It did not have to examine any document it held for the purpose of attempting to ascertain for itself the candour and trustworthiness of MCR by, for example, identifying possible omissions, possible exaggerations, possible falsehoods or the like in the document.

173    ACMA’s consideration of the application of s 83(2) as disclosed in its reasons for decision is unaffected by the claimed failure to consider s 83(3)(b) and (d) of the Broadcasting Services Act. Further, if I had concluded that there was any such failure of consideration, given that a decision under s 83(2) is not mandatory in respect of a renewal application, I would have sought further submissions from the parties on the issue of materiality. Materiality would arise because ACMA can consider the suitability of a licensee at any time and the continuing suitability of a licensee is a condition of the licence under cl 9(2)(a) of Sch 2 (breach of which may entitle ACMA to suspend or cancel the licence under s 143). If ACMA holds any concern about the version of the renewal application MCR made available on its website, ACMA can consider s 83(2) again in the light of all of the information now available to it.

6.2    Superiority of ANIC community broadcasting service

174    For the reasons already given I do not accept that on the renewal application ACMA was bound to consider whether or not ANIC could provide a superior community broadcasting service to MCR for the “Religious – Islamic” community purpose or interest. I have explained above why I consider that such a matter being a mandatory relevant consideration (as opposed to a permissible consideration) would be inconsistent with the statutory scheme for renewal of a licence. As such, ACMA was also not bound to consider the expert report as to technical capacity that ANIC submitted (a copy of which is not in evidence in any event).

175    This conclusion is not changed by ANIC’s submission that what ACMA must do on a renewal application is to consider whether there ought to be a competitive tendering process in respect of a licence due for renewal. ACMA has no such obligation on a renewal application.

176    If this conclusion is wrong and ACMA was bound to consider ANIC’s potential to provide a superior service to MCR on the renewal application, I accept that ACMA did not consider this matter and that such a failure of consideration would be material.

6.3    MCR did not meet community needs

177    As explained, I do not accept that ACMA had to consider the extent to which MCR’s service “would meet the existing and perceived future needs of the community within the licence area of the proposed licence” as identified in s 84(2)(a) of the Broadcasting Services Act. It did not have to do so because it was exercising power under s 91(1), not s 91(2A) and there is no implied mandatory consideration on the grant of a renewal under s 91(1) for ACMA to consider the s 84(2)(a)–(f) matters (but ACMA may choose to do so).

178    In any event, ACMA chose to consider the s 84(2)(a)–(f) matters and I do not accept that ACMA failed to consider them. ACMA’s reasons for decision include:

(1)    the list of material ACMA considered at [5.1] including the submission made by ANIC to the ACMA, dated 30 March 2021, the petition initiated by ANIC entitled “Ahbash radio station licence MUST NOT be renewed by ACMA”, and the affidavit of Shady Alsuleiman (ANIC president), dated 3 March 2021; and

(2)    detailed references to ANIC’s submissions at, for example, [6.6], [7.1]–[7.3], [7.6]–[7.8], and [8.5].

179    Dealing with ANIC’s pleaded case (paragraph 50 of the second further amended statement of claim), I do not accept that MCR stated that although it was founded by ICPA, it was independent of ICPA and ACMA “accepted MCR’s statement”.

180    First, MCR submitted that it is “an independent incorporated association registered since 13th March 1995 under the Associations Incorporation Act 1982” and although founded by ICPA, MCR “has its own directors who are from culturally and linguistically diverse communities”.

181    Secondly, ACMA did not take MCR’s statement at face value. It sought input from the Department of Home Affairs and was informed by the Department that ICPA delivered a diverse and prominent range of religious and social programs including MCR. In other words, the Department informed ACMA that MCR was a program delivered by ICPA.

182    I do not accept that ACMA failed to consider a large number of indicators in the renewal application of close links between MCR and ICPA and between MCR and Darulfatwa. This is because the Department of Home Affairs information made the link between MCR and ICPA explicit (describing MCR as a service provided by ICPA) and also said that ICPA founded the Islamic High Council of Australia, also known as Darulfatwa. ACMA could have been in no doubt that MCR was a service of ICPA, that ICPA founded Darulfatwa, and that ICPA is, as the Department of Home Affairs put it, “openly affiliated with a Sufi sect of Islam based in Lebanon called the Al-Ahbash” whom “the Australian Federation of Islamic Councils (AFIC), the Australian National Imams Council (ANIC)…have claimed …are an obscure fringe group with their own extremist ideologies”.

183    Further, ACMA accepted the Department’s views by reasoning that:

7.18    The evidence before the ACMA shows that some members of the Islamic community in the licence area are dissatisfied with the service. That dissatisfaction is in large part built upon a view that the service does not meet existing and perceived future needs of the Islamic community.

7.19    The evidence also supports a conclusion that the Islamic community comprises a diversity of interests where, as noted by the Department of Home Affairs, there is no one group that represents all interests of the ethically and denominationally diverse Islamic community. It is in that context that the ACMA looks at the extent to which the service would meet the needs of that community.

7.20    While MCR may not be able to provide a service that will suit all members of the community, the ACMA is satisfied on the evidence that in its programming and community activities MCR has demonstrated the extent to which the service meets those needs. By way of example, the ACMA notes:

•    MCR’s actions to achieve community participation including community consultation, outside broadcasts at a range of community events, open membership, use of volunteers and community feedback;

•    MCR’s efforts to meet the interests of members of the Islamic community from a variety of ethnicities, languages and dialects, cultures and Islamic observance;

•    the diversity of MCR’s service which builds upon these efforts to reach out to and engage with the Islamic community so as to broadens [sic] its appeal beyond any single segment of the Islamic community; and

•    the fact that a material proportion of MCR’s programming (24%), comprising the Qur’an recitations and call for prayers, would be commonly understood and of interest to the broader Islamic community.

7.21    Accordingly, the ACMA is satisfied that MCR provides a service that meets the needs of a significant proportion of the Islamic community in the licence area, and the ACMA considers that it will continue to do so upon renewal of its licence.

184    I do not accept that ACMA had to consider the redactions by MCR to the version of the renewal application made publicly available on MCR’s website or had to consider a comparison between this version and the full version made available to ACMA (see the discussion above).

185    I do not accept that in concluding that “ACMA is satisfied that MCR provides a service that meets the needs of a significant proportion of the Islamic community in the licence area, and the ACMA considers that it will continue to do so upon renewal of its licence” ACMA failed to consider the advice from the Department. ACMA must be inferred to have considered that advice and, indeed, acted on the basis of it that “there is no single organisation that exhaustively represents Muslim Australians in all their ethnic and denominational diversity, including in Sydney”. So much is apparent from [7.19] of its reasons as quoted above. ACMA simply disagreed with ANIC’s view that MCR was unrepresentative of and hostile to all but a tiny proportion of Muslims in the Sydney area. This conclusion was supported by the advice from the Department.

186    Further, the advice from the Department expressly disclosed the hostility between ICPA and, amongst others, ANIC. What is apparent from the Department’s advice is that the hostility is mutual.

187    ACMA’s conclusions are not consistent with it having failed to consider these matters. Indeed, they reflect the view that there is no one group that represents all interests of the ethnically and denominationally diverse Islamic community.

188    I do not accept that ACMA did not have regard to ACMA’s submission about the tiny minority of Sydney Muslims who adhered to Al-Ahbash and Al-Ahbash’s intolerance, or the petition ANIC submitted. ACMA did consider but did not accept that those submissions should be accepted. ACMA was not bound to accept ANIC’s submissions about the unrepresentativeness and/or intolerance of Al-Ahbash. In so doing, ACMA had regard to other information available to it including the information from the Department of Home Affairs and such matters as the following:

(1)    MCR commissioned research from McNair Yellow Squares in 2020, which MCR states found that “36% of all people in Sydney that identify as Muslim aged 15+, listen to Muslim Community Radio 92.1FM at some time in a typical week. This is a significant achievement for 2MFM considering that not all individuals listen to community radio”: [7.14];

(2)    MCR provides opportunities for listener feedback via talkback programs, and actively requests feedback on air in several languages and via its website and social media: [7.13];

(3)    MCR runs community consultations and events, and sub-committee engagement activities. MCR has provided 42 examples of outside broadcasts conducted at a range of community events: [7.13];

(4)    MCR broadcasts in a number of languages, and the range of languages that MCR broadcasts programming in is roughly aligned to the range of languages spoken at home by the Islamic population in NSW: [7.17]; and

(5)    Arabic is the dominant language spoken during programming (accounting for around 75 per cent of programming including 24 percent of programming which is Qur’an recitations and Athan (Call for prayers)), but it is also the language spoken by 37.7 per cent of Islamic residents of NSW, and MCR notes that the Qur’an recitations and Athan are common and understood by all ethnic communities within the Muslim community: [7.17].

189    It is not the function of the Court to decide if ACMA’s assessment of the representativeness or unrepresentativeness of MCR for the Sydney Muslim community was right or wrong. What can be safely concluded is that ACMA was well aware of ANIC’s concerns and took them into account. ACMA was not bound to agree with ANIC.

190    ACMA did not accept the submissions of three people about the petition in preference to the petition itself. It merely recorded the fact that three people had contacted it who said they did not support the petition, one of whom was not Muslim: [7.8]. No error of any kind is disclosed in this regard.

191    I do not accept that ACMA failed to consider ANIC’s submission about the 87 Imams who supported ANIC, none of whom had been consulted by or involved in MCR’s programming, and instead had regard only to MCR’s statement that it was unsure if all those Imams were in the licence area and that one of those Imams had participated in an MCR program, but had also objected to MCR’s licence renewal by letter.

192    Again, it is clear that ACMA had regard to that part of ANIC’s submission (see its reasons at [5.1], [7.2] and [7.3]). In referring to MCR’s response at [7.6], ACMA was not ignoring or disregarding what ANIC had said. It was merely recording MCR’s response. ACMA then weighed up all of the material before it to reach its conclusions thereafter about whether “ACMA would not have refused to allocate the licence if it were deciding whether to allocate the licence to MCR” (at [11.1]). I do not accept ANIC’s submission that the formula of words used (“ACMA would not have refused to allocate the licence”) is inconsistent with the terms of s 91(2A) (“…it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee”).

193    For these reasons I do not accept ANIC’s allegations of ACMA’s failure to consider mandatory relevant matters.

6.4    Incumbent licensee policy

194    ANIC contended that ACMA had unlawfully applied an unwritten policy in favour of renewal of licences. ANIC submitted this inference should be drawn from four circumstances:

(1)    in its letter to ANIC’s lawyers of 17 February 2021 ACMA said it would not consider the issue whether any other licensee might be superior to MCR;

(2)    the original notice in the Gazette incorrectly said that ACMA was required to renew the licence unless it found MCR no longer to be a suitable licensee;

(3)    in evidence in support of its opposition to ANIC’s interlocutory application, ACMA’s lawyer said on information and belief that ACMA “has a policy that incumbency is not lightly to be disturbed”; and

(4)    in its submissions in support of its opposition to ANIC’s interlocutory application, ACMA’s lawyer said Pt 6 of the BSA “was always intended to provide for the allocation of long-term broadcasting licences”.

195    I am unable to infer that when it came to making the renewal decision, ACMA applied any such policy of not lightly disturbing the incumbency of an existing licensee. There is no suggestion of such a policy being applied in ACMA’s reasons for its decision. The references to “long-term” licences in ACMA’s reasons (for example, [3.3]) reflect only the distinction between a Pt 6 licence (for five years) and a temporary community broadcasting licence for not more than 12 months under Pt 6A. Further, as noted, I do not accept that the formula of words used in ACMA’s reasons at [11.1] (“ACMA would not have refused to allocate the licence”) is inconsistent with the terms of s 91(2A) (“…it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee”) or discloses an application of an incumbency policy. Nor does ACMA’s refusal to take into consideration the competing merits of ANIC as a licensee (which I accept ACMA did refuse to consider – as it was entitled to do on my construction of the statute) indicate that ACMA applied an incumbency policy.

196    Nor do I accept that, if it did apply any weight to the notion of incumbency, that ACMA was somehow disabled from considering the renewal application as required by the Broadcasting Services Act or without regard to the merits of the renewal application. Nothing in ACMA’s reasons for decision supports that conclusion.

197    In any event, as ACMA submitted I agree that ACMA is entitled to adopt policy guidelines for itself including having regard to the continuity of a community broadcasting service. This is a relevant consideration given the terms of ss 4(1)–(2), 5(1)(b) and the scope, purpose and subject matter of Pt 6 of the Broadcasting Services Act. As ACMA submitted:

(1)    “[p]olicy guidelines…promote values of consistency and rationality in decision‑making”, but must not be applied “rigidly”: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [54] and [58];

(2)    “[t]here is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations”: NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [24]; and

(3)    the “question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [71].

198    From its reasons I am satisfied ACMA’s mind was open to persuasion about the considerations relevant to MCR’s renewal application. The fact that ACMA did not accept ANIC’s submissions does not mean it failed to consider those submissions to the extent they were relevant to the renewal function ACMA was performing. In this regard, ACMA did not have to consider either MCR’s suitability as a licensee under s 83(2) (although it chose to do so and did so lawfully) or whether ANIC was a potentially superior licensee (which I accept ACMA did not consider). ACMA did not disable itself from performing these functions as required by law by reason of any policy of incumbency.

6.5    Manifest unreasonableness

199    It is not apparent that ANIC pressed this ground. In any case, the ground cannot succeed. ACMA’s reasons disclose a carefully considered evaluation of disputed matters and a weighing of those matters in the relevant statutory context. The decision it reached to renew MCR’s licence was plainly reasonably open to ACMA.

7.    CONCLUSIONS

200    For these reasons I do not accept any of ANIC’s grounds of challenge to ACMA’s decision. ANIC’s second further amended originating application must be dismissed with costs.

Associate:

Dated:    11 August 2022