Harbour Radio Pty Ltd v Australian Communications and Media Authority
[2010] FCA 478
•17 May 2010
FEDERAL COURT OF AUSTRALIA
Harbour Radio Pty Ltd v Australian Communications and Media Authority [2010] FCA 478
Citation: Harbour Radio Pty Ltd v Australian Communications and Media Authority [2010] FCA 478 Parties: HARBOUR RADIO PTY LIMITED v AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY File number(s): NSD 172 of 2010 Judge: BUCHANAN J Date of judgment: 17 May 2010 Corrigendum: 20 May 2010 Catchwords: ADMINISTRATIVE LAW – broadcasting codes of practice – whether complaint about program content or compliance with codes of practice – whether a requirement to assert a breach of a code of practice – obligation of ACMA to investigate complaint Legislation: Acts Interpretation Act 1901 (Cth) ss 13, 15
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11, 13
Broadcasting Services Act 1992 (Cth) ss 123, 148, 149Date of hearing: 16 April 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: A Robertson SC and R Graycar Solicitor for the Applicant: Baker & McKenzie Counsel for the Respondent: S Lloyd SC Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 172 of 2010
BETWEEN: HARBOUR RADIO PTY LIMITED
Applicant
AND: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
17 MAY 2010
WHERE MADE:
SYDNEY
CORRIGENDUM
1.On page 2, paragraph 5, replace in quote of s 132(2)(e)(ii): “depict the Broadcasting Actual process” with: “depict the actual process”.
2.On page 8, paragraph 16, second paragraph of quote from letter, lines one and two replace “Broadcasting Activities” where appearing with “activities”.
I certify that the preceding two (2)
numbered paragraphs are a true copy
of the Corrigendum to the Reasons for
Judgment herein of the Honourable
Justice Buchanan.Associate:
Dated: 20 May 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 172 of 2010
BETWEEN: HARBOUR RADIO PTY LIMITED
Applicant
AND: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
17 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Time is extended pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to permit the filing of the application on 24 February 2010.
2.The decision of a delegate of the respondent, communicated to the applicant by letter dated 1 December 2009, to investigate a complaint made to the respondent by Mr Moshe Kalfa is set aside with effect from 1 December 2009.
3.The respondent is to pay the applicant’s costs, such costs to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 172 of 2010
BETWEEN: HARBOUR RADIO PTY LIMITED
Applicant
AND: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Respondent
JUDGE:
BUCHANAN J
DATE:
17 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant (“Harbour Radio”) is the operator of a radio station known as station 2GB in Sydney. One of its programs, which is broadcast on weekdays from 9.00 am to 12.00 pm is the “Ray Hadley Morning Show”. It is presented by Mr Ray Hadley. On 1 December 2009 Harbour Radio was advised in writing by the respondent (“ACMA”) that ACMA had decided to investigate a complaint about broadcasts of the show which occurred between 3 August and 25 August 2009. The complaint was said to relate to a matter covered by the Commercial Radio Australia Codes of Practice and Guidelines which are dated September 2004 (“the Commercial Radio Codes”). The complaint to ACMA followed a complaint made, on 25 August 2009, to Harbour Radio.
The decision by ACMA to investigate the complaint made to it was a decision made under the Broadcasting Services Act 1992 (Cth) (“the Broadcasting Act”). It was a decision capable of being challenged by Harbour Radio under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The decision was open to challenge upon the grounds listed in s 5 of the ADJR Act including:
5 (1) …
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
…
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
…
(j) that the decision was otherwise contrary to law.The present proceedings concern a challenge by Harbour Radio under the ADJR Act to the decision made by ACMA on grounds which invoke each of those provisions.
The application made under the ADJR Act was filed in the Court outside the time prescribed by s 11(3) of the ADJR Act, but the Court may extend that time under s 11(1)(c). An explanation for the delay was given. Initially ACMA opposed any extension of time but, at the hearing of the application, withdrew its opposition to an extension of time. ACMA does not suggest any prejudice to it. I am satisfied that it would be appropriate to grant an extension of time.
Before I deal with the origins of the complaint to ACMA, which it decided it was obliged to investigate, it is convenient to set out the statutory scheme which deals with the development of codes of practice and some related matters.
Section 123(1) of the Broadcasting Act states the intent of the federal Parliament that industry groups, including commercial broadcasting licensees, develop codes of practice appropriate to the broadcasting operations of their section of the broadcasting industry, in consultation with ACMA. Section 123(2) provides:
123(2) Codes of practice developed for a section of the broadcasting industry may relate to:
(a)preventing the broadcasting of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry; and
(b)methods of ensuring that the protection of children from exposure to program material which may be harmful to them is a high priority; and
(c)methods of classifying programs that reflect community standards; and
(d)promoting accuracy and fairness in news and current affairs programs; and
(e) preventing the broadcasting of programs that:
(i)simulate news or events in a way that misleads or alarms the audience; or
(ii)depict the Broadcasting Actual process of putting a person into a hypnotic state; or
(iii) are designed to induce a hypnotic state in the audience; or
(iv)use or involve the process known as subliminal perception or any other technique that attempts to convey information to the audience by broadcasting messages below or near the threshold of normal awareness; and
(f)in the case of codes of practice developed by commercial broadcasting licensees—broadcasting time devoted to advertising; and
(g)in the case of codes of practice developed by commercial radio broadcasting licensees—the broadcasting of Australian music; and
(h) methods of:
(i)handling complaints from the public about program content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; and
(i) captioning of programs for the hearing impaired; and
(j)in the case of codes of practice developed by community broadcasting licensees:
(i)the kinds of sponsorship announcements that may be broadcast by those licensees; or
(ii)the kinds of sponsorship announcements that particular kinds of program may carry; and
(k)in the case of codes of practice developed by subscription broadcasting licensees—dealings with customers of the licensees, including methods of billing, fault repair, privacy and credit management;
(l)such other matters relating to program content as are of concern to the community.
(I have emphasised some matters relevant to the present proceedings.)
Under s 123(4) of the Broadcasting Act:
123(4) If:
(a)a group representing a particular section of the broadcasting industry develops a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the ACMA is satisfied that:
(i)the code of practice provides appropriate community safeguards for the matters covered by the code; and
(ii)the code is endorsed by a majority of the providers of broadcasting services in that section of the industry; and
(iii)members of the public have been given an adequate opportunity to comment on the code;
the ACMA must include that code in the Register of codes of practice.
Section 124 of the Broadcasting Act requires ACMA to maintain a Register including codes of practice registered under s 123 which is to be open for public inspection. The Register may be maintained electronically. In whichever form it is kept it is clear that it is available to the public, a circumstance which is important when considering the circumstances of the present case in more detail.
The Commercial Radio Codes consist of eight specific codes of practice and a number of guidelines. Three codes of practice are relevant, or potentially relevant, in the present case. They are Code of Practice 1: Programs Unsuitable for Broadcast, Code of Practice 2: News and Current Affairs Programs and Code of Practice 5: Complaints. Despite their length, it is desirable to set them out in full. I shall emphasise matters relevant to the present case.
Code of Practice 1 provides:
Purpose
1.1The purpose of this Code is to prevent the broadcast of programs which are unsuitable, having regard to prevailing community standards and attitudes.
Definition
1.2 In this code “programs” means all matter broadcast.
Proscribed Matter
1.3 A licensee must not broadcast a program which:
(a)is likely to incite, encourage or present for its own sake violence or brutality;
(b)simulates news or events in such a way as to mislead or alarm listeners;
(c) present as desirable:
(i) the misuse of alcoholic liquor; or
(ii) the use of illegal drugs, narcotics or tobacco.
(d)depicts suicide favourably or presents suicide as a means of achieving a desired result; or
(e)is likely to incite or perpetuate hatred against or vilify any person or group, ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability.
1.4Nothing in sub-clauses 1.3(c)(ii), 1.3(d) or 1.3(e) prevents a licensee from broadcasting a program of the kind or kinds referred to in those sub-clauses if the program is presented reasonably and in good faith for academic, artistic (including comedy or satire), religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about any act or matter.
Program Content and Language, including Sex and Sexual Behaviour
1.5(a) All program content must meet contemporary standards of decency, having regard to the likely characteristics of the audience of the licensee’s service.
(b)The gratuitous use in a program of language likely to offend the anticipated audience for that program must be avoided.
1.6 Licensees must not broadcast audio of actual sexual acts.
1.7Licensees must not broadcast a feature program which has an explicit sexual theme as its core component unless it is broadcast between 9.30 pm and 5.00 am and an appropriate warning is made prior to commencement of the program and at hourly intervals during broadcast of the program.
1.8Nothing in clause 1.7 prevents a licensee from broadcasting a program at any time, of the kind referred to in that clause, if the program is in the public interest, including discussion or debate about current events.
Code of Practice 2 provides:
Purpose
The purpose of this Code is to promote accuracy and fairness in news and current affairs programs.
2.1 News programs (including news flashes) broadcast by a licensee must:
(a) present news accurately;
(b)not present news in such a way as to create public panic, or unnecessary distress to reasonable listeners;
(c) distinguish news from comment; and
(d)not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, unless there is a public interest in broadcasting such information.
2.2In the preparation and presentation of current affairs programs, a licensee must ensure that:
(a)factual material is presented accurately and that reasonable efforts are made to correct substantial errors of fact at the earliest possible opportunity.
(b)the reporting of factual material is clearly distinguishable from commentary and analysis;
(c)reasonable efforts are made or reasonable opportunities are given to present significant viewpoints when dealing with controversial issues of public importance, either within the same program or similar programs, while the issue has immediate relevance to the community;
(d)viewpoints expressed to the licensee for broadcast are not misrepresented and material is not presented in a misleading manner by giving wrong or improper emphasis or by editing out of context; and
(e)respect is given to each person’s legitimate right to protection from unjustified use of material which is obtained without an individual’s consent or other unwarranted and intrusive invasions of privacy.
Code of Practice 5 provides:
Purpose
5.1 The purpose of this Code is to prescribe:
(a)the method of handling complaints made by members of the public to licensees regarding compliance with these Codes; and
(b)the manner of reporting by the commercial radio industry to the ABA on complaints so made.
Complaints
5.2 For the purposes of this Part, a complaint is an assertion:
(a)made in writing by letter or fax by a person who provides his or her name and address;
(b)to a licensee or a person at the radio station concerned who is acting with the apparent authority of the licensee;
that the licensee has broadcast matter which, in the opinion of the complainant, breaches these Codes. Complaints need not specify the section of the code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.
5.3The licensee must make appropriate arrangements to ensure that complaints are received and recorded by a responsible person during normal office hours.
Telephone Comments
5.4Licensees welcome telephoned comments from listeners, which they regard as valuable feedback on reactions to their service. The comments will be directed to the attention of key staff, who may respond to callers who provide their name and contact details.
Telephone Complaints
5.5Listeners who telephone a station alleging a breach of the Codes, and who wish to make a complaint, will be asked to make the complaint in writing, in accordance with the provisions of clause 5.2.
Advice in Writing
5.6Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 days, the licensee must, in any event, acknowledge receipt of the complaint within 30 days and provide a final reply within 45 days of receiving the complaint.
5.7The response must inform the complainant that he or she has the right to refer the complaint to the ABA if the complainant is not satisfied with the response of the licensee.
Stale Complaints
5.8If a complaint is made more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged to comply with this Code of Practice 5.
Unwarranted Complaints or Anonymous Material
5.9The licensee must make every effort to resolve complaints made in accordance with this Code, except where the complaint is, in the reasonable opinion of the licensee, frivolous, vexatious or an abuse of the complaint process under the Code.
5.10The licensee is under no obligation to respond to or record comments provided anonymously to the licensee.
Record of Complaints
5.11A record of complaints must be kept by the licensee in written form and must include:
(a) the date and time the complaint is received;
(b) the name and address of the complainant;
(c) the substance of the complaint;
(d) the substance and date of the licensee’s response(s)and each such record must be retained by the licensee for a period of one (1) year from the date of receipt of the complaint.
5.12(a) The licensee must cause an extract of the records of complaint prepared in accordance with Clause 5.11 to be supplied to Commercial Radio Australia Limited in a form agreed between the ABA and Commercial Radio Australia upon 14 days’ notice by Commercial Radio Australia to the licensee, for inclusion in industry complaint data provided by Commercial Radio Australia to the ABA.
(b)Where a licensee is not a member of Commercial Radio Australia, the licensee must provide the extract of the record of complaints directly to the ABA and in the same form agreed to by the ABA and Commercial Radio Australia.
(emphasis added – references to ABA should be understood as references to ACMA.)
The complaint to Harbour Radio was made in writing by Mr Moshe Kalfa, who identified himself as Director of “the House Doctor Building Maintenance” (“the House Doctor business”). Mr Kalfa’s letter was dated 25 August 2009. The essence of his complaint was as follows. When the federal Government commissioned its preliminary ceiling insulation program in February 2009 the House Doctor business became involved. The House Doctor business was approached by a representative of 2GB soliciting advertising. After the ceiling insulation program officially began on 1 July 2009, Mr Kalfa accepted an arrangement for radio advertising on 2GB for one month for approximately $27,600. The advertising related to the House Doctor business and its participation in the federal Government’s ceiling insulation program. However, despite taking and charging for his advertising business, from Monday 3 August 2009 2GB made a series of unjustified allegations about the ceiling insulation services provided by the House Doctor business.
Mr Kalfa made specific responses to the allegations (as he perceived them) in the following terms:
·The House Doctor does charge significantly different amounts of money depending on the size of the property and other factors.
·The House Doctor uses satellite systems to measure the roof size of properties which we have checked by our own calibration to be extremely accurate and efficient.
·The House Doctor is a small family business which has operated in the building industry for more than four years.
·The House Doctor is licensed and takes pride in all its building maintenance work.
·The House Doctor employees always wear the protective gear necessary for all their jobs including ceiling insulation.
·The House Doctor attends to all their ceiling insulation bookings at the agreed time and lodges all claims from the Government only after the job has been completed and signed for by the customer.
·The House Doctor is not being investigated by the government.
·The House Doctor has worked closely with electricians for many years and always cuts the necessary space around down-lights when installing ceiling insulation.
·The House Doctor never knocks on doors.
·The House Doctor takes cancellations without argument or problems.
Mr Kalfa identified a number of specific days on which, he said, the allegations had been made on 2GB. He complained of many cancellations each time the allegations were broadcast. He complained of resulting financial and personal hardship. He concluded his letter as follows:
Our family business undertook in good faith advertising on radio 2GB only to learn later that we became the 2GB vehicle for repeated criticism of the government stimulus package by virtue of a campaign of unsubstantiated and unjustified allegations. We request that you give your urgent attention to the matters we have raised with a view to redressing the situation.
Mr Kalfa did not suggest that the matters of which he complained represented a breach of the Commercial Radio Codes or make any reference at all to the existence of the Commercial Radio Codes.
Harbour Radio replied, on 2 September 2009, in the following terms:
Dear Mr Kalfa
I refer to your letter dated 25 August 2009, received by me on 28 August 2009.
I understand that the Broadcasting Activities of the business known as The House Doctor, and the Broadcasting Activities of businesses operating in the home insulation industry generally, are to be investigated by at least one government authority. The Hon Peter Garrett AM MP, Minister for the Environment, Heritage and the Arts, has indicated to 2GB that investigations will be pursued.
It would be inappropriate to respond to the statements in your letter concerning the Broadcasting Activities of The House Doctor in light of those investigations, at least until the conclusion of the investigations and any consequential report or action.
Yours faithfully
(signed)
Stuart Thomas
Chief Operating OfficerIf Mr Kalfa’s letter of 25 August 2009 represented a complaint in accordance with Code of Practice 5 of the Commercial Radio Codes, then Harbour Radio’s response was deficient. Arguably, it failed to consider Mr Kalfa’s complaint conscientiously (cl 5.6). It certainly did not inform Mr Kalfa that he had a right to refer the complaint to ACMA (cl 5.7). Harbour Radio’s position is that the complaint was not made in accordance with the requirements of Code of Practice 5 because it did not contain any assertion, whether specific or otherwise adequately identified, that the Commercial Radio Codes had been breached, contrary to the requirements of cl 5.2.
After he received Harbour Radio’s response, Mr Kalfa made a complaint to ACMA on 13 November 2009. In form, the complaint was about a matter covered by a code of practice. Mr Kalfa drew attention to cl 1.3(b) of Code of Practice 1 as the provision breached. He did so both by identifying that specific provision and by alleging, in various places, that listeners had been mislead and alarmed. He made no other specific reference to any code of practice, although he did allege that 2GB had conducted “a campaign of unsubstantiated and unjustified false allegations presented as news” (cf Code of Practice 2 cl 2.2(a)).
The right to make a complaint to ACMA, and its duty to investigate complaints under codes of practice, are set out in ss 148 and 149 of the Broadcasting Act.
Section 148 of the Broadcasting Act provides:
148 Complaints under codes of practice
If:
(a)a person has made a complaint to a provider of broadcasting services on a matter relating to:
(i) program content; or
(ii)compliance with a code of practice that applies to those services and that is included in the Register of codes of practice; and
(b)if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) either:
(i)the person has not received a response within 60 days after making the complaint; or
(ii)the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ACMA about the matter.
(emphasis added)
Section 149(1), (2)(a) and (3) of the Broadcasting Act provide:
149 Investigations of complaints by the ACMA
(1)Subject to subsection (2), the ACMA must investigate the complaint.
(2) The ACMA need not investigate the complaint if it is satisfied that:
(a)the complaint is frivolous or vexatious or was not made in good faith; …
(3)The ACMA must notify the complainant of the results of such an investigation.
(emphasis added)
Sections 148 and 149 appear in Division 1 – “Complaints relating to action under licences and class licences” of Part 11 – “Complaints to the ACMA” of the Broadcasting Act. The headings to Division 1 and Part 11 are deemed to be part of the Broadcasting Act (Acts Interpretation Act 1901 (Cth) s 13(1)). The heading to s 148 (“Complaints under codes of practice”) is not part of the Broadcasting Act (Acts Interpretation Act 1901 (Cth) s 13(3)) but it is one of the forms of extrinsic material to which regard may be had when construing the Broadcasting Act in appropriate circumstances (Acts Interpretation Act 1901 (Cth) s 15AB(2)(a)).
Section 148 of the Broadcasting Act refers to two complaints – a complaint to a broadcaster and a complaint to ACMA. There is the possibility of confusion between the two. However, in my view, it is sufficiently clear that what ACMA is directed by s 149 to investigate (if the necessary conditions are met) is the complaint to it. That complaint must be about a matter identified in s 148(a), namely, a complaint to a broadcaster relating to program content or compliance with a code of conduct. Providing the complaint to the broadcaster falls within those parameters and providing the other requirements of s 148 are met, a complaint to ACMA is permitted and, unless ACMA is satisfied that the complaint to it is frivolous or vexatious or was not made in good faith, ACMA is obliged to investigate it. If the terms of s 148 of the Broadcasting Act are not met the provisions of s 149 are not engaged.
ACMA’s decision to investigate Mr Kalfa’s complaint to it was made by a delegate. In the reasons given by ACMA’s delegate explaining why ACMA had decided to investigate Mr Kalfa’s complaint to it, and examine aspects of his complaint to Harbour Radio, there were included the following matters which are relevant to the issues raised by the present proceedings:
·the complaint included assertions that went to the accuracy of material broadcast on the station, in particular at page 2 paragraph 3;
·accuracy of factual material in current affairs programs is a matter covered by the Commercial Radio Australia Codes of Practice 2004 at clause 2.2(a);
....
·Ray Hadley is promoted by 2GB as a ‘current affairs commentator’ – it was therefore considered that The Ray Hadley Morning Show is a current affairs program and subject to clause 2.2(a) of the code;
·while the complaint did not assert a breach of the code, it was taken, given the above, to contain an implicit assertion that Harbour Radio had broadcast matter which, in the opinion of the complainant, had breached the codes;
….
·the complaint adequately identified the nature of the complaint, ie the broadcast of inaccurate material.
(emphasis added)
The delegate concluded elsewhere in the reasons for decision that Mr Kalfa’s complaint was about program content and “possibly” about compliance with cl 2.2(a) of the Commercial Radio Codes. No reference was made to Mr Kalfa’s direct and indirect suggestion in the complaint to ACMA that there had been a breach of cl 1.3(b) of Commercial Radio Codes. The delegate decided that ACMA’s investigation should extend to the question of whether Harbour Radio had complied with cl 5.6 and cl 5.7 (set out earlier). The delegate decided, however, that complaints that Harbour Radio took advertising from the House Doctor business and then attacked it, and that the broadcasts had damaged the House Doctor business and the well-being of Mr Kalfa’s family, were not within ACMA’s jurisdiction to investigate because they did “not raise issues in relation to compliance with licence conditions, provisions of the [Act] or the code”.
As will be apparent from the extract above, the delegate decided that the requirements of cl 5.2 were satisfied because, although there was no assertion of breach of a code of practice in the complaint by Mr Kalfa to Harbour Radio, there was an “implicit assertion” to that effect.
As already indicated, Harbour Radio’s contention in the present proceedings is that the complaint to it was not made in accordance with cl 5.2 of the Commercial Radio Codes and therefore the requirement in s 148(b) was not met. It followed, in Harbour Radio’s submission, that it was not open to Mr Kalfa to make a complaint to ACMA under s 148 of the Broadcasting Act and there was no obligation on ACMA to investigate his complaint to it. Harbour Radio submits that the delegate’s decision to the contrary is affected by legal and jurisdictional error and should be quashed or set aside.
ACMA’s first line of defence was to argue that the delegate was correct to conclude that cl 5.2 of the Commercial Radio Codes did not require a complaint to a broadcaster to specifically assert breach of a code of practice, provided the complaint sufficiently identified conduct which would constitute a breach, if established. Similarly, the opinion of a complainant to the effect that a code of practice had been breached could be implied in the same way.
However, ACMA’s submissions also suggested that there were a number of reasons why, even if Mr Kalfa’s complaint to Harbour Radio was not made in accordance with Code of Practice 5, ACMA was nevertheless obliged to investigate it. Despite the various ways in which these alternative arguments were advanced they had in common the premise that no restriction posed by s 148(b) applied in the present case. They may, in my view, be reduced to two essential propositions. The first was that a code of practice about methods of handling complaints (as contemplated by s 148(b)) could not impose substantive limits or a filter on a complaint, whether about program content or compliance with a code, by requiring that it expressly allege breach of a code of practice. On this argument cl 5.2 imposed no effective restriction relevant to the present case.
The other argument was that if cl 5.2 requires an express allegation of breach of a code, Code of Practice 5 did not relate to the handling of complaints of the kind made by Mr Kalfa. An element of this argument was to postulate a distinction between a code of practice providing a method of handling complaints about compliance (Code of Practice 5) and a complaint which was about program content but not, in terms, about compliance (eg Mr Kalfa’s complaint if the applicant’s characterisation of it was accepted). One difficulty with the argument is that it subordinates characterisation of a code of practice relating to the handling of complaints to the characteristics of a particular complaint. The initial inquiry directed by s 148(b) is whether there is a relevant code of practice relating to the handling of complaints of that kind – ie complaints on a matter relating to program content or compliance with a code of practice. Section 148(b) does not, at least in terms, refer to relevant codes of those kinds.
There are also logical difficulties in ACMA’s attempt to raise its arguments about the construction and operation of s 148(b) as alternative submissions. Although ACMA’s position appeared to be that it only needed to rely upon its alternative submissions in the event that the delegate was wrong to conclude that Mr Kalfa’s complaint to Harbour Radio was made in compliance with cl 5.2, in reality ACMA’s alternative submission could only succeed on the basis that the delegate was in error about a basic premise of her decision. The delegate accepted that cl 5.2 of the Commercial Radio Codes and s 148(b) of the Broadcasting Act both applied in the present case. The operation of s 148(b) is predicated on there being “a relevant code of practice relating to the handling of complaints of that kind”. Code of Practice 5, developed in consultation with ACMA, either relates to complaints of the “kind” made by Mr Kalfa or it does not. If it does so relate, the complaint was either made “in accordance with” that code of practice or it was not. As a matter of principle, the first inquiry precedes the second. It does not arise in response to a conclusion that cl 5.2 was not satisfied.
I think it is unfortunate that ACMA, as a public authority, did not state a clear position about whether Code of Practice 5 of the Commercial Radio Codes, all of which were developed in consultation with it and which appear on the public Register, was a code of practice relating to complaints of the kind made by Mr Kalfa or not. That is an important initial question. As it happens, in my view the alternative submissions are unpersuasive and should not be accepted.
Section 148(b) of the Broadcasting Act requires consideration of whether there is a code of practice which relates to the handling of complaints “on a matter relating to” program content or compliance with a code of practice that applies to broadcasting services. If there is such a code of practice, the complaint to the licensee must be made in accordance with that code in order to make a subsequent complaint to ACMA, with which ACMA must deal.
Code of Practice 5 identifies its purpose as being to prescribe “the method of handling complaints made by members of the public to licensees regarding compliance with” the codes in the Commercial Radio Codes. It does not refer, specifically, to dealing with complaints about program content. However, there is no clear distinction to be made between program content and compliance with codes of practice generally. There is no definition in the Broadcasting Act of the term “program content”, which is used in a number of places in the Broadcasting Act in addition to s 148 (eg in 123(2)(1)). The term must therefore be understood in accordance with its ordinary meaning. Under the Broadcasting Act, codes of practice may deal with program content (see s 123(2)(l)). The Commercial Radio Codes deal with program content in various ways which establish requirements, breach of which would found a complaint. The term “program content” is used in cl 1.5(a) of Code of Practice 1 (set out earlier). Other aspects of Code of Practice 1 clearly relate to program content as do significant aspects of Code of Practice 2. In addition, provisions unmistakably dealing with program content may be found in Code of Practice 3: Advertising, Code of Practice 4: Australian Music and Code of Practice 6: Interviews and Talkback Programs. Sometimes the requirements relating to program content are prohibitory, sometimes they are mandatory. A complaint relating to the prohibitory or mandatory requirements of the Commercial Radio Codes concerning program content would (probably invariably) be a complaint regarding compliance with the codes.
In my view it is artificial to contend that Code of Practice 5 is not a code of practice relating to the handling of complaints about program content; it clearly is. Section 148(b) therefore applies in the present case and, subject to the next argument to be considered, cl 5.2 does also.
ACMA argued, as I mentioned earlier, that cl 5.2 of Code of Practice 5 could not impose a “filter” on the operation of s 148 of the Broadcasting Act. It was enough, so it was argued, that Mr Kalfa had made a complaint which was in substance about compliance with the Commercial Radio Codes and it was impermissible for cl 5.2 to require that the complaint contained an “assertion” of breach. In other words, cl 5.2 could not limit the substantive right of complaint or derogate from ACMA’s obligation to investigate a complaint made to it. That argument also should not be accepted. It is s 148(b) of the Broadcasting Act which requires that a complaint be made “in accordance with” a relevant code for handling complaints. Such a code may relate to “methods” of handling complaints (s 123(2)(h)(i) set out earlier). Any “method” is bound to involve procedures and, perhaps, limitations. Clause 5.2 of Code of Practice 5 requires that complaints be in writing and directed (in an effective way) to the broadcaster. No complaint was made about those procedural requirements. In my view there is no reason why cl 5.2 of Code of Practice 5 should not, in accordance with s 148(b), be given effect in accordance with its terms. A requirement that a complaint identify the reason it is made is clearly not objectionable. Neither, in my view, if this is the effect of cl 5.2, is a requirement that the complaint make clear that the complainant is intending to assert a breach of a code.
The reasons expressed in the foregoing paragraphs are sufficient to dispose of all the variants of ACMA’s alternative submissions. The remaining, and central, question is whether the delegate was correct to conclude that Mr Kalfa’s letter of 25 August 2009 constituted a written complaint which fell within the terms of cl 5.2 of the Commercial Radio Codes.
It should be noted, as will already be apparent, that Code of Practice 5 imposes a series of obligations on a broadcaster when a written complaint is made to it under cl 5.2. A complaint of that kind is one of, no doubt, a wide variety of written communications that might be made by a member of the public (whether an individual or a business) with a broadcaster. Some such communications might contain a complaint of one kind or another about programs in general or a particular program. The writer of such a letter may desire some level of inquiry (or other action) or be content merely to express a point of view. In my view, it is apparent from the terms of Code of Practice 5 that those who developed the code thought it important that it be apparent from the terms of a complaint that it constituted an allegation of breach of the Commercial Radio Codes. The contrary assumption would be unrealistic. Receipt of a complaint made in accordance with cl 5.2 generates obligations of conscientious consideration and timely response. Inadequate investigation, non-response and inadequate response are themselves breaches of Code of Practice 5. In my view, a broadcaster is not required to speculate about the purpose or motives of someone advancing a “complaint” which is not assertively one about breach of the Commercial Radio Codes. The fact of such an assertion, together with a sufficient identification of the alleged character of the breach, affords a proper opportunity of investigation and response.
The requirement is not a particularly onerous one. As earlier pointed out, the codes of practice are maintained in a Register available to the public. No suggestion was made that it would be difficult for someone having a complaint about program content to establish the existence of a relevant code of practice so that, if they believed a breach of a code had occurred, such an assertion could be made, whether orally in the first instance or in writing.
The requirement in cl 5.2, that the assertion of breach reflects the opinion of the complainant, is also not without significance. It emphasises that it is not left to the recipient to search for, or eliminate, implications that might arise from the terms of a letter, much less speculate about the opinion of the writer. What is needed is an assertion that, in the opinion of the writer, a code has been breached. That condition was not met in the present case. The reasons given by the delegate do not afford a reason adequate in law to support her conclusion that ACMA was bound to investigate the complaint made to it by Mr Kalfa. Nor has any other reason been advanced which would support such a conclusion.
ACMA made a further attempt to save the decision in the event that all other arguments had gone against it. It argued that its powers to investigate (to be found elsewhere in the Broadcasting Act and in other legislation) were adequate to support its decision to do so in the present case even if it came under no obligation from the terms of s 149(1) of the Broadcasting Act. That was not the effect of the decision. The effect of the decision was that ACMA was obliged to investigate Mr Kalfa’s complaint to it. The present proceedings challenge that decision in accordance with the rights given under the ADJR Act. The ADJR Act requires written reasons to be given if requested (s 13). Such a procedure enables evaluation of the reasons of a decision-maker against the provisions of s 5 of the ADJR Act (eg as in s 5(1)(d), (f) and (j) set out earlier). In the present case the errors alleged have been established. In those circumstances there is no reason to allow the decision to stand. What ACMA may decide to do, based on other statutory provisions, need not be considered here.
The application succeeds. There is no reason why costs should not follow the result. The following orders will be made:
1.Time is extended pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to permit the filing of the application on 24 February 2010.
2.The decision of a delegate of the respondent, communicated to the applicant by letter dated 1 December 2009, to investigate a complaint made to the respondent by Mr Moshe Kalfa is set aside with effect from 1 December 2009.
3.The respondent is to pay the applicant’s costs, such costs to be taxed if not agreed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 17 May 2010
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