Television and Radio Broadcasting Services Australia Pty Ltd and Australian Communications Authority [2000] AATA 104 (16 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1762

GENERAL ADMINISTRATIVE DIVISION )

Re TELEVISION AND RADIO BROADCASTING SERVICES AUSTRALIA PTY LIMITED

Applicant

And AUSTRALIAN COMMUNICATIONS AUTHORITY

Respondent

DECISION

Tribunal Mr BJ McMahon (Deputy President)

Date 16 February 2000

Place Sydney

Decision The decision for which an application for review has been lodged is not reviewable and accordingly the Tribunal dismisses the application without proceeding to review the decision.

(Sgd) BJ McMahon

..............................................

Deputy President

CATCHWORDS

JURISDICTION - Radiocommunications Act 1992 (the Act) - whether renewing a licence for a lesser duration than requested amounts to a reviewable decision under section 292 and 285 - whether the duration is part of the conditions of the licence - statutory interpretation - conditions special meaning excludes duration - no decision

Radiocommunications Act 1992 ss 103, 107, 129, 130, 131, 285, 288, 289, 290, 292

Administrative Appeals Tribunal Act 1975 ss 25, 27

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

1. These reasons deal only with a preliminary question of jurisdiction raised by the respondent. The applicant applied to the respondent on 6 May 1999 under section 129 of the Radiocommunications Act 1992 for renewal of a large number of apparatus licences. I was informed that they relate to apparatus used in a network of niche broadcasting to selected small pay-TV audiences. The licences had been granted at different times and therefore expired on different dates. Generally speaking, it was sought to renew the licences so that all of them would expire on a date 5 years thence. The confidential submission accompanying the application set out (at page 10 and following) why the initial term of the licences would have been insufficient to recoup investment and why, from a commercial point of view, it was necessary to renew them for a further 5-year period.

2. By letter dated 29 June 1999, the respondent conveyed its decision to renew some of the licences (the A band licences) for 3 years rather than for the 5 years sought and to renew the remainder of the licences for the 5 year period. The reasons given in that letter for the shorter renewal period relate to plans for future use of the MDS spectrum which, at that stage, had not yet been formulated. The decision-maker took into account an intention to formulate a plan under section 33. That section provides for the procedures to be followed where a spectrum plan or frequency band plan is prepared. Publication of the plan is followed by consideration of public comment and ultimately, if adopted, the plan becomes a disallowable instrument.

3. The applicant did not seek review of the intention to formulate a plan. It sought review of the decision to renew the A band licences for a period shorter than that provided for in the initial grant of the licence and shorter than that requested by the applicant. Its case was that it had specifically sought renewal of the licences for periods ending on 25 July 2004 and asserted that the respondent had made a decision under section 130 to renew the licences for periods each ending on 25 July 2002. It therefore alleged jurisdiction in this Tribunal to review the decision after it had been reconsidered (or in default, if reconsideration time had expired) under paragraph 285(m). Section 292 vests jurisdiction in this Tribunal to review a decision of a kind referred to in section 285. The relevant paragraph includes a "refusal to renew an apparatus licence, or renewal of an apparatus licence with different conditions, under section 130".

4. Section 285 sets out the types of decision that may be subject to reconsideration by the respondent. An application for this purpose must be made under section 288. Until there has been a reconsideration under section 289, there is not a decision which is reviewable by this Tribunal under section 292. It happened in this case, that the reconsideration decision did not take place within 90 days as prescribed by section 290. Accordingly, the respondent is deemed to have made a decision affirming the original decision. In my view, nothing turns on the fact that the decision put forward by the applicant is a deemed decision. If it is not one of the types of decisions which might have been reconsidered under section 285, then the fact that deeming provisions came into operation would not thereby confer jurisdiction. In other words, a decision, in order to be reviewable, whether or not it has been reconsidered by the respondent, must be one of the specific types of decisions set out in section 285.

5. The respondent objected to the competency of the application. It submitted that the duration of a licence was not a condition and that, as the licences had been renewed expressly upon the same conditions as the previous licences (except as to duration) the decision fell outside the terms of paragraph 285(m).

6. The respondent sought to discern a scheme in the legislative context separating conditions which might attach to a licence from the duration of the licence. Part 3.3 dealing with licences deals with conditions in Division 3. Section 107 deals with general conditions which are applied to all licences and (in paragraph 107(1)(g)) special conditions which may be specified in the particular licence. It was the respondent's contention that only conditions imposed pursuant to this paragraph were reviewable by this Tribunal.

7. It was submitted that duration of apparatus licences, as a term both of issue and renewal, was dealt with in section 103, which appears in Division 2. Section 130, dealing with renewals, links the issue and renewal terms and section 131 specifically brings in section 103 dealing with duration thus, it was said, emphasising the separation of concepts of conditions and duration.

8. It was submitted furthermore that as a matter of construction, section 285(f), by specifying particular conditions, supported the concept that they should be viewed differently from duration considerations. Another submission was that the renewal provisions of section 130 are silent as to duration of licences. Although some sections are referred to in section 130 as an indication of the matters to which the respondent must have regard, when considering renewal applications, section 103 is not one of them.

9. Apart from the textual approach, the respondent submitted that there were good policy reasons for not regarding duration as a reviewable condition. Both parties relied on the well-known passage in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 dealing with the modern approach to statutory interpretation.

10. It was submitted that the formulation of a plan for the disposition of the radio spectrum is an essential function of the respondent and that the reduction of the duration of these licences to facilitate the formulation of such a plan was intimately connected with the Authority's planning function. Because of this it was submitted there are limits on merit review. Such a review would have an impact on third parties who would be precluded from using that part of the spectrum without the benefit of the public procedure prescribed for the formulation of a statutory plan. There were good policy reasons therefore, it was submitted, why such an aspect of a decision should not be the subject of inter partes review.

11. The applicant did not concede that a scheme could be discerned from the legislation and warned against a narrow or literal interpretation approach, which was eschewed in CIC Insurance. There was, it was submitted, a refusal of an application in the terms in which that application was formulated. The partial refusal left an important gap for the applicant. Clearly a licence for 3 years is of considerably less value than a licence for 5 years even though a 5-year period is the statutory maximum. In reality, it was submitted, the respondent did not grant what was sought. This must therefore be a reviewable refusal, it was submitted, under section 285(m). That paragraph picks up all alterations of conditions other than specific conditions enumerated earlier, such as those in paragraph (f) or (g).

12. In addressing the question whether duration was a condition, the applicant asked hypothetically whether a renewal for a derisory period, such as a day, would be reviewable as a refusal. On the respondent's argument, it would not. Although I raised the question myself, on reflection I consider that a reductio ad absurdam argument of this nature is not particularly helpful in construing a statute with a specific function and a defined structure. It is more helpful, in my view, to rely on textual analysis and where necessary, public policy.

13. The applicant submitted, in the textual analysis argument, that the source of the duration power is not subsection 103(1) as it specifically refers back to a licence which has already been issued. The source, therefore, is to be found in section 100. Similarly, the source of the renewal power in section 130 is again to be found in section 100 by reason of its reference to the issuing of a new licence. Accordingly, as an alternative, the decision was reviewable under either paragraph (e) or (m) of section 285.

14. On the public policy argument, the applicant submitted that it was not possible to discern a deliberate policy choice to exclude duration from reviewability. Certainly there was no such statement to be found in any of the extrinsic parliamentary material. In the legislation itself, the planning functions are dealt with in chapter 2, and particularly in section 33. There is no link evident in the legislation between that section and section 130. In any event, the applicant pointed out that the public policy objection raised by the respondent related only to a proposed plan, which has not yet gone through the statutory procedures under which it may be developed. Although the proposal to institute such a plan is not reviewable by this Tribunal, an application which is refused because it is contrary to such a plan would be reviewable.

15. This Tribunal, of course, is an entity created by the Administrative Appeals Tribunal Act 1975. Its jurisdiction is limited by section 25 to reviewing decisions where that power is conferred by a second enactment. The fact that the interests of a person may be affected by the decision (section 27) is not sufficient to entitle this Tribunal to enter upon a relevant enquiry. Unless jurisdiction is clearly conferred by the portfolio enactment, then a review should not be undertaken.

16. The question to be determined is the meaning of the word "conditions" in paragraph 285(m). The fact that a comma has been inserted after that word does not, in my view, affect the meaning. The paragraph refers to conditions imposed upon the renewal of apparatus licences pursuant to powers conferred by section 130.

17. In my view, the reference to "conditions" in section 130 must be a reference to the conditions as defined in another section appearing in the same Part of the Act, namely the definition contained in section 107. These conditions are of three types. Those appearing in paragraphs (a) to (d) of subsection (1) are common to all licences. As they may not be changed, they would not fall for reconsideration under paragraph 285(m). The second type of condition is one determined in relation to a particular type of apparatus licence under paragraph (f). Such a determination is a disallowable instrument (subsection (4)) and again, would not be reviewable by this Tribunal. The third type of condition (and, in my view, the only reviewable type of condition) is to be found in the catch-all provision of paragraph (g). Clearly, flexibility is introduced by this paragraph in order to enable the decision-maker to deal with particular aspects of particular apparatus licences. This incidental power to impose conditions would not, in my view, extend to encompass a fundamental arrangement such as the duration of a licence.

18. In ordinary parlance, "duration" could be regarded as a condition. In my view, however, "conditions" has a defined statutory meaning in the context of this legislation and "duration" has a separate statutory basis.

19. Section 103 is found in a different Division from section 107. If duration were to be regarded as a reviewable condition, then section 103 would be otiose. The question of duration could have been dealt with just as well in section 107. The fact that it is dealt with separately indicates to me that the legislation regards it differently from conditions.

20. The fact is, however, that the legislation pays particular attention to duration. It does not leave the subject to be dealt with under a catch-all provision dealing with other conditions which may be specified. Section 103 controls the life of a licence, no doubt because circumstances in the industry vary quickly. The introduction of radio telephony and the creation of international obligations would no doubt play a part in the determination of the duration of apparatus licences generally, as well as specific apparatus licences of particular applicants.

21. It is not necessary, in my view, to resort to the public policy arguments of the respondent in order to reach this conclusion. As a matter of statutory construction, it appears to me that "conditions" in this Act has a special statutory meaning which excludes duration. Whilst certain conditions might be reviewable, duration is not. To hold otherwise would, in my view, require a restructuring of the legislation. There may be good commercial reasons why an applicant would object to a shortening of a renewal period. In my view, however, this is not a consideration in determining whether this Tribunal has jurisdiction. It seems to me that the Tribunal is not empowered to embark upon a review of a decision which is limited only to the correctness or preferability of a decision reducing a renewal period.

22. Accordingly, the application should be dismissed without proceeding to a review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed: J. Healy .....................................................................................

Jacqueline Healy, Associate

Date/s of Hearing 4 February 2000

Date of Decision 16 February 2000

Counsel for the Applicant Mr S Gageler

Solicitor for Applicant Atanaskovic Hartnell

Counsel for the Respondent Mr N J Williams

Solicitor for the Respondent Australian Government Solicitor