Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority

Case [2014] FCA 667

FEDERAL COURT OF AUSTRALIA

Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667

Citation: Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667
Parties: CHANNEL SEVEN ADELAIDE PTY LIMITED v AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
File number: NSD 1347 of 2012
Judge: FOSTER J
Date of judgment: 24 June 2014
Catchwords: ADMINISTRATIVE LAW – whether the holder of a commercial television broadcasting licence under the Broadcasting Services Act 1992 (Cth) has made out grounds for judicial review of a decision of the Australian Communications and Media Authority in relation to a complaint made about a segment of one of its current affairs programs
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)
Broadcasting Services Act 1992 (Cth), ss 5, 42, 43, 123, 124, 125, 128, 148, 149, 170, 178, 179 and 180
Judiciary Act 1903 (Cth), s 39B
Commercial Television Industry Code of Practice, January 2010, cll 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.19.3, 4.1, 4.2, 4.3.1, 4.3.7, 4.3.11, 4.4 and 4.5
Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Dates of hearing: 27 and 28 February 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 79
Counsel for the Applicant: Mr J Kirk SC with Mr S Free
Solicitor for the Applicant: Addisons
Counsel for the Respondent: Mr NJ Williams SC with Ms A Mitchelmore
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1347 of 2012
BETWEEN:

CHANNEL SEVEN ADELAIDE PTY LIMITED
Applicant
AND:

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

24 JUNE 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the Application as taxed or agreed.   

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1347 of 2012
BETWEEN:

CHANNEL SEVEN ADELAIDE PTY LIMITED
Applicant
AND:

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Respondent

JUDGE:

FOSTER J

DATE:

24 JUNE 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. In 2011, Channel Seven Adelaide Pty Limited (Seven) operated the commercial television station known as SAS Adelaide.

  2. For some years prior to mid-2011, the Seven Network had broadcast a half hour current affairs program on weeknights at 6.30 pm known as Today Tonight.

  3. On 25 July 2011, Seven broadcast a segment (the segment) as part of the Today Tonight program which went to air on that day which addressed a skin treatment known as Intense Pulsed Light (IPL) treatment.  In particular, the segment focussed on the experiences of a particular patient (A) who had been treated with IPL treatment at a particular…

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Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667
Case
[2014] FCA 667
Decision Date

CaseChat Overview and Summary

Channel Seven Adelaide Pty Limited challenged a decision made by the Australian Communications and Media Authority (ACMA) in relation to a segment broadcast on its television program. The dispute centred on a statement made during the broadcast, which Channel Seven argued was mischaracterised by the ACMA as an unqualified statement of fact. Channel Seven contended that the statement was based solely on another person's account and thus should not have been considered as an unqualified fact. Channel Seven sought judicial review of the ACMA's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and the Judiciary Act 1903 (Cth). The court had to determine whether the ACMA had properly considered the broadcast segment as a whole and whether it had correctly applied the relevant provisions of the Code in assessing the accuracy of the statement. Specifically, the court had to examine whether the ACMA's failure to consider the segment in its entirety amounted to an error of law or an improper exercise of power.

The court examined each of the six grounds of review presented by Channel Seven. Regarding Ground 1, the court found that the ACMA had indeed assessed the statement in the context of how it would have been understood by ordinary reasonable viewers. The ACMA applied its guidelines, which included the ordinary reasonable viewer test. The court held that while other characterisations of the statement might have been possible, the ACMA's interpretation of the statement as an unequivocal fact was open to it. The court concluded that Channel Seven had not demonstrated that the ACMA failed to apply the relevant provisions of the Code correctly. The court found that the ACMA's approach was reasonable and that its conclusion that the statement was an unequivocal fact was supported by the evidence. The court dismissed Channel Seven's challenge, holding that the ACMA's determination was lawful and rational.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In submissions made to the Court in support of its application, Seven appeared also to rely upon s 5(1)(f) of the ADJR Act. That section is in the following terms:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:…(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;… Presumably, s 39B is the principal foundation for Seven’s challenges to the ACMA’s determination in respect of Statement 5 based upon alleged errors of law and irrationality. In its Amended Originating Application for Judicial Review, Seven relied upon six grounds of review. I shall deal with each of those grounds in turn. Ground 1 – Failure to Consider the Broadcast as a Whole Seven submitted that the ACMA failed to take into account the segment in its entirety when considering whether Statement 5 was accurate. It submitted that all that the ACMA did was to consider the statement itself in isolation and nothing else. Seven then submitted that it was readily apparent from a fair consideration of the whole segment that Statement 5 was based solely on A’s account of events and that the clinic had not provided its version of events to Seven. It was then submitted on behalf of Seven that to tell a story based upon another person’s account of relevant events is to rely upon what that person says. To characterise Statement 5 as an unqualified statement of fact was to ignore the context in which it was made and thus was to approach a consideration of the complaint by not paying due regard to the requirements of cl 4.3 of the Code and, in particular, to the requirements of cl 4.3.1.1 of the Code. Seven contended that this fundamental error in approach was an error of law, an improper exercise of power and a jurisdictional error. The ACMA submitted that, in respect of the complaint about Statement 5, the ACMA had to assess how the relevant statement would have been understood by ordinary reasonable viewers of the program. The ACMA applied its own guidelines to that question viz the ordinary reasonable viewer test which it set out in the Report and in Attachment B. Notwithstanding that those guidelines are somewhat prescriptive, they remain flexible and sensible. The mere fact that other characterisations of Statement 5 in the context of the segment as a whole might have been available does not mean that the ACMA failed properly to apply cl 4.3.1 of the Code (including cl 4.3.1.1). Several voice over statements made by the reporter were not qualified by a specific reference that A had made those statements. Those statements were not attributable to any particular source. In my judgment, Seven has failed to make out ground 1. In order to do so, it must demonstrate that the ACMA did not apply cl 4.3.1 of the Code (esp cl 4.3.1.1). There is no basis for the Court to make such a finding. The ACMA referred to cl 4.3.1 (at p 3 of the Report) when addressing the question of accuracy of factual content. It interpreted Statement 5 as an unequivocal statement of fact. That interpretation was open to it. In the segment, the assertion contained in Statement 5 was not sourced back to A, either by the use of words of qualification in respect of Statement 5 or by reference to other parts of the segment. Statement 5 was made as a voice over unconnected directly to A or to her image on the screen. The concluding remarks made by the presenter of the program were not such as to inevitably lead to the conclusion that Seven was asserting in the segment that Statement 5 was based on A’s account, and only on A’s account. For these reasons and for the reasons submitted by the ACMA, the ACMA’s conclusion that Statement 5 was an unequivocal statement of fact was clearly open to it.

Ratio Decidendi

Legal Principle Established

Thus, it is the ACMA’s approach to the interpretation and application of cl 1.5.2 of the Code that is at the heart of Seven’s challenge to the ACMA’s determination in relation to Statement 5 in the present case.CONSIDERATION Seven relied upon s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) in various ways. Section 5(1)(e) of the ADJR Act provides:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:…(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;… In submissions made to the Court in support of its application, Seven appeared also to rely upon s 5(1)(f) of the ADJR Act. That section is in the following terms:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:…(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;… Presumably, s 39B is the principal foundation for Seven’s challenges to the ACMA’s determination in respect of Statement 5 based upon alleged errors of law and irrationality. In its Amended Originating Application for Judicial Review, Seven relied upon six grounds of review. I shall deal with each of those grounds in turn. Ground 1 – Failure to Consider the Broadcast as a Whole Seven submitted that the ACMA failed to take into account the segment in its entirety when considering whether Statement 5 was accurate. It submitted that all that the ACMA did was to consider the statement itself in isolation and nothing else. Seven then submitted that it was readily apparent from a fair consideration of the whole segment that Statement 5 was based solely on A’s account of events and that the clinic had not provided its version of events to Seven. It was then submitted on behalf of Seven that to tell a story based upon another person’s account of relevant events is to rely upon what that person says. To characterise Statement 5 as an unqualified statement of fact was to ignore the context in which it was made and thus was to approach a consideration of the complaint by not paying due regard to the requirements of cl 4.3 of the Code and, in particular, to the requirements of cl 4.3.1.1 of the Code. Seven contended that this fundamental error in approach was an error of law, an improper exercise of power and a jurisdictional error. The ACMA submitted that, in respect of the complaint about Statement 5, the ACMA had to assess how the relevant statement would have been understood by ordinary reasonable viewers of the program. The ACMA applied its own guidelines to that question viz the ordinary reasonable viewer test which it set out in the Report and in Attachment B. Notwithstanding that those guidelines are somewhat prescriptive, they remain flexible and sensible. The mere fact that other characterisations of Statement 5 in the context of the segment as a whole might have been available does not mean that the ACMA failed properly to apply cl 4.3.1 of the Code (including cl 4.3.1.1).