Khan and Australian Broadcasting Authority

[2005] AATA 634

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 634

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/647

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MOHAMMED SHAFIQ KHAN MOHAMMED HAROON KHAN

Applicant

And AUSTRALIAN BROADCASTING AUTHORITY

Respondent

DECISION

Tribunal M G Ettinger, Senior Member

Date4 July 2005

PlaceSydney

Decision The Tribunal has no jurisdiction in this matter.

Ms G Ettinger

Senior Member

CATCHWORDS

JURISDICTION – Applicants complain of conduct of community radio – Applicants complain of basis of investigation and report of ABA No. 1461 - Tribunal lacks jurisdiction to review the report.

Administrative Appeals Tribunal Act 1975 ss 25(1), (4)

Broadcasting Services Act 1992 ss 147, 148, 204

Community Broadcasting Code of Practice 2002

REASONS FOR DECISION

4 July 2005 Ms G Ettinger, Senior Member     

THE APPLICATION

1.      Messrs Mohammed Shafiq Khan and Mohammed Haroon Khan (“the Applicants”) sought review by the Administrative Appeals Tribunal (“the Tribunal”) of a decision of the Australian Broadcasting Authority, (“the ABA”), Report No 1461 dated 14 April 2005, which dealt with complaints they made about licensee Blacktown City Community Radio Association Inc. broadcasting on station 2SWR as part of the Community Radio Broadcasting Service.  The application for review was lodged with the Tribunal on 19 May 2005 .

2.      On 24 May 2005, the Tribunal wrote to the Applicants discussing its power to review certain decisions, and indicating that it did not appear to have jurisdiction to entertain their application. 

THE HEARING

3.      However as the Applicants had an application before it, the Tribunal convened a Hearing in order for the parties to make submissions, and for the Tribunal to make a decision regarding whether the AAT has jurisdiction to entertain the Applicant’s complaints about the ABA investigation and Report No 1461. 

4.      Mr M S Khan and Mr M H Khan attended, and represented themselves.  Ms S Koller and Mr Stabert appeared for the Respondent. 

APPLICANT’S SUBMISSIONS

5.      The Applicants accepted that there was no specific provision pursuant to the Broadcasting Services Act 1992 (“the BS Act”) for the AAT to review the Report No 1461, but argued that there was implied jurisdiction, and submitted that section 29(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), conferred a general power to review decisions of Commonwealth agencies such as the ABA. Messrs Khan also submitted that: “Under that provision anybody, like the two of us, can make an application to the Tribunal for a review of any decisions whatsoever of the ABA not specifically mentioned and provided for under Section 25 of the AAT Act 1975 that the provision for a review must be under an enactment.”

6.      Messrs Khan also submitted that they were particularly aggrieved because the ABA report had not been investigated properly, having utilised translations provided by the persons about whom the complaint had made which were inaccurate. The Applicants also complained about a breach of procedures in relation to conflict resolution procedures and other matters.

RESPONDENT’S SUBMISSIONS

7. In the Respondent’s written submissions dated 23 June 2005, Ms Koller gave reasons for the view that there was no jurisdiction in the Tribunal to review Report No 1461. She indicated that sections 147, 148 and 149 of the BS Act are in place to provide for complaints to be made to the ABA regarding offences against the BS Act or breaches of licence conditions. Ms Koller also mentioned the codes of practice developed for the broadcasting industry, the one applicable in the Khan’s complaint being the Community Broadcasting Code of Practice 2002.

8. Ms Koller also referred to section 25(1) of the AAT Act, which relevantly provides that another Act may make provision for applications to be made to the Tribunal for review of decisions made in the exercise of powers under that Act or under delegated legislation made under that Act.

9. Ms Koller submitted that there did not appear to be any provision in the Act which affords the AAT inherent jurisdiction. She submitted that Part 14 of the BS Act governs appeals to the AAT and section 204 of the BS Act provides that review by the AAT may be sought of specified decisions by specified persons. Ms Koller submitted further that section 204 of the BS Act makes no reference to sections 147, 148, or 149, and that accordingly the AAT has no jurisdiction in respect of the matters raised by the application of Messrs Khan.

CONCLUSION

10.     I have considered the substantial amount of correspondence that is on file in this matter, and have noted the Applicants’ dissatisfaction with the method of investigation and findings in the ABA’s Report No 1461.

11. I am mindful that notwithstanding quite a lot of correspondence had passed between the Applicants and the ABA, by the time of the Hearing, Messrs Khan submitted a letter dated 28 June 2005 in which they accepted that there did not appear to be a specific provision under the BS Act, for this Tribunal to review decisions of the ABA, as earlier submitted. They added that: “... we strongly feel that under the general powers conferred under the latter Act to the AAT to review decisions of the Commonwealth agencies, such as the ABA, the AAT has powers to review the decisions made by the ABA as contained in its Report No 1461.”

12.     Ms Koller also made written submissions, and replied to the Applicants’ submissions as summarised above.  Essentially she submitted on behalf of the Respondent that there was no jurisdiction vested in the AAT to consider the Applicants’ claim.

13. I am mindful that the AAT has no inherent jurisdiction to review decisions of Commonwealth authorities, and that section 25 of the AAT Act does not confer that power. It is possible that the Applicants may have read such power into the words of section 25(4) of the AAT Act, which reads: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.” However, it is precisely that enactment referred to which must specify that the AAT is to review particular decisions as listed for example in section 204 of the BS Act. The decision of the ABA which the Applicants wish to have reviewed was made pursuant to sections 147, 148 and 149 of the BS Act. None of these sections of the BS Act is mentioned in section 204 of the BS Act which lists the relevant sections decisions of which may be reviewed by the AAT.

14. Section 29 of the AAT Act simply deals with the manner of applying for review, and the discretion to extend time. I find that there must be an Act of Parliament, or a regulation, that confers on the Tribunal jurisdiction to hear applications in respect of all or certain decisions made under that Act of Parliament or regulation. I cannot find any such jurisdiction in relation to review of the ABA Report No 1461.

15.     I find on the basis of the legislation, that is the Administrative Appeals Tribunal Act 1975 and the Broadcasting Services Act 1992, that the Tribunal lacks jurisdiction to review decisions made under sections 147, 148 and 149 of the BS Act. There is no Act of Parliament or any subordinate legislation conferring such jurisdiction on the Tribunal.

16.     I have noted that the Applicants have approached the Ombudsman with regard to their complaint. They may have recourse to other bodies with regard to their complaint, but should seek independent legal advice in that regard.

DECISION

17.     The Tribunal has no jurisdiction in this matter.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  29 June 2005
Date of decision  4 July 2005
The Applicants  Self-represented

Solicitor for Respondent           Ms S Koller